It can be difficult to consider anything outside of a loved one’s health after they have suffered a traumatic brain injury, or TBI. However, in many TBI cases, there will come a time where important decisions must be made involving the loved ones medical and financial well-being. While it may seem a bit cold, keeping a mind on the practical considerations is a key way that someone with this kind of injury needs your support. Your search for information on the legal ramifications of a TBI should begin with an attorney who has experience in these sensitive matters. As every case is unique, it’s important to take advantage of the free consultations offered by law firms like the Law Office of David Heil so they can help you through the process of acting on behalf of your injured loved one. It should also provide a foundation of questions to ask when choosing the right attorney to work on your behalf, which is important when navigating these complex waters during a difficult time.
If the injury is serious enough, your loved one may be in an incapacitated state for a lengthy or indefinite amount of time. Often in this scenario, the injured party has financial responsibilities and assets that, if left unattended due to injury, can become costly. It’s important to go over available options with a support team of family members, doctors, and attorneys to formulate a plan that ensures the interests of the injured are protected. If they are unable to fully manage their estate, you’ll need to strongly consider a legal guardianship.
A guardianship, as it relates to an incapacitated adult, is somewhat similar to how it pertains to a minor. Like a minor, a guardianship in an injured adult is usually court appointed and allows the guardian to act on behalf of the other individual. However, unlike most minors, an adult is likely to have assets that need to be managed by another until such time when the injured party can resume duties. There is no over-arching federal law regarding guardianship, so the relevant legislation will vary from state to state. In addition to varying laws you can expect varying terminology from state to state as well. Some states will use the term “incapacitated” for someone after a TBI while other states may use the word “incompetent”. Regardless of the terminology, an attorney can assist you in obtaining legal guardianship so you’re able to take on essential functions until your loved one recovers.
Protecting financial assets is just one the many responsibilities that fall under the role of a guardian. Of course, not everyone can serve as guardian for someone who has suffered a TBI. The responsibility typically falls on a spouse, parent, sibling, bank or money manager depending on the issue. It also isn’t uncommon to see co-guardianship granted to multiple parties in more complex estates. However, too often there can be disputes among parties on who should make important decisions that could hurt the interests and health of the injured party. You may also be dealing with additional outside pressures, which is why it’s best to engage a lawyer for guidance on how to go forward with the essential functions of a guardian. Some of these functions include:
- Applying for benefits such as Social Security Disability, Supplemental Security Income, or state medical benefits
- Retaining an attorney to investigate the cause of the accident and seek restitution in an injury case.
- Institute legal actions to protect the incapacitated person’s rights against insurance companies or those who caused the accident
- Legally advocate for the incapacitated person’s rights and best interest
- Safeguard the incapacitated party’s finances
- Keep records of financial transactions and open bank accounts and write checks for the injured party
- Legally refuse or limit access to medical records in order to protect the individual’s rights to continued health care and insurance benefits
- Give authorization for inspection of medical records
- Release medical information to entities such as public assistance, workers’ compensation, and Medicare/Medicaid
- Consult with doctors and make decisions regarding proper medical treatment
While this information is meant to be helpful, it is only a drop in the bucket when compared to the help most people need when faced with a difficult family situation. While it is hard to think about anything other than the health of your loved one, as an appointed guardian (or someone who is considering assuming that role) you need to be the anchor for your family and the injured party. The health of your loved one should always come first, and for that you have a team of doctors. For every other interest, you’ll need a support team that wouldn’t be complete without an experiencing attorney to help you perform the essential functions of a guardian.
About the author:
Brian Levesque is a freelance writer who contributes on various topics of modern living, bringing his practical experience out through articles and advice columns.