This section attempts to answer general legal and financial questions of immediate concern after a traumatic brain injury and diagnosis for brain injury survivors and their families. Here, we try to summarize the laws .   All information was verified from published, official sources . Space limitations prevent describing all exceptions and conditions that may govern a particular case.
In addition, each state has its own laws, and statutes and court interpretations may change at any time.  Therefore, decisions on individual legal matters should be based on current information and should be discussed with an attorney.

For a Questionnaire for hiring an attorney, please click here.

Guardianship

Should the family of a brain injury survivor consider a guardianship?  When faced with a diagnosis of traumatic brain injury, family members often find it very difficult to consider the issues of guardianship for their incapacitated loved one.  It is crucial that this matter be discussed as soon as possible with the family, doctors and attorneys, so that the interests of the incapacitated person are protected.
 
One of the first questions that family members of an adult TBI survivor will have to deal with is whether the survivor is able to manage his or her property, whether the survivor has the ability to
receive and evaluate information effectively and whether the survivor can communicate decisions.

If the brain injury survivor is impaired to the extent that he or she is partially or totally unable to manage finances or take care of the necessary requirements for personal physical health and safety, then a guardian should be considered.

The laws differ in all 50 states.  There is no federal law regarding guardianship. It is a matter of state law.  Some states use the term "incapacitated".  Other states use the word "incompetent".  Regardless of the terminology, family members are always concerned about whether a guardianship is necessary.  Here, we hope to answer some of your questions about guardianship.
When is a guardian needed?  A guardian is required when an individual has suffered such a catastrophic injury, illness, or is otherwise so disabled that that adult individual is unable to make responsible decisions concerning medical, legal, and financial needs and manage daily affairs.

What is a guardianship? A guardianship is a legal relationship between the guardian
(typically court appointed) and an incapacitated individual.  The guardianship gives the guardian the legal duty and right to act on behalf of an incapacitated person and make decisions that effect the incapacitated person's money and life.

Why is a guardian needed? The typical responsibilities and functions of a guardian can include the following:

• applying for government benefits;
• Social Security Disability;
• Supplemental Security Income;
• State medical benefits;
• Make arrangements for healthcare;
• In an injury case, to retain an attorney to investigate the cause of the accident and seek all insurance proceeds;
• Institute legal actions to protect the incapacitated person's rights against insurance companies, parties who caused an accident, or against the school district for failing to provide the required educational programs for minor children;
• Advocate for the incapacitated person's rights and best interest;
• Safeguard the incapacitated party's finances;
• Keep records of all financial transactions;
• Open bank accounts and write checks;
• Legally refuse or limit access to an incapacitated party's medical records in order to protect the individual's rights to continue to receive healthcare and insurance benefits;
• Give authorization for inspection of medical records by signing a release for medical information such as public assistance, workers' compensation, social security disability, Medicare/Medicaid, health insurance or otherwise;
• Consult with treating doctors and make decisions regarding proper medical treatment and placement, if necessary.

Who is appointed guardian? Usually, the guardian is a family member who is responsible and will work in the best interest of the incapacitated person.  Typically, a husband, wife, on next of kin, etc. is appointed by the Court. Sometimes, there are co-guardians.  A family member is appointed the guardian of the person, while a professional or a bank is appointed as the guardian of the "estate".  Banks are often used as guardians of the estate when there are substantial assets or if there is a minor child that is incapacitated. This needs to be discussed at length with the attorney.

Is it difficult to have someone declared incapacitated or incompetent? Generally, the Courts are unwilling to declare a person incapacitated unless it is absolutely necessary.  There has to be proper medical documentation.  It is not enough to have a family member come in and say that the incapacitated person should have a guardian appointed. Medical documentation will be required.

How is a guardian appointed? In order to have a guardian appointed, you will have to contact an attorney.  State laws vary regarding the procedure.  Generally, attorneys charge an hourly rate or an agreed-upon fee for preparing the paperwork necessary to seek the appointment of a guardian. 

There will be a hearing in front of the judge.  If you cannot afford an attorney's legal services, you should still obtain a consultation with an attorney familiar with guardianship.  It is possible that attorney can refer you to a legal aid society or non-profit foundation that can assist you in filing guardianship papers at a nominal costs.

If the incapacitated person is a child, do the parents have to file for legal guardianship?  Again, state laws vary.  However, generally, it is not necessary for a parent to petition to be appointed the guardian for a minor.  Parents are the guardians of their children until they reach the age of majority (typically 18 years of age).  It only becomes necessary for a parent to file for guardianship after a child reaches the age of 18.  In all cases, parents should consult with an attorney as soon as possible after an injury occurs to determine what steps should be taken
to protect the child's welfare in matters such as Wills, Estate Planning, investigation of educational needs and benefits, and most importantly, to determine whether additional insurance is available, and investigate the circumstances of how the injury occurred.

What happens when no family or friends are qualified to serve as guardian?
If this occurs, then the Court typically will appoint an attorney to serve as a guardian.

Products Liability

A potential products liability claim occurs when a defective or dangerous product (a consumer product, automobile, industrial machinery, etc.) causes a serious traumatic brain injury (TBI).
You may be able to sue an equipment manufacturer or a product manufacturer if you are injured  while using a product that malfunctions, is unsafely designed, or is unsafe because the manufacturer failed to give proper instructions or warnings for using the product.  If you can prove that a product defect existed when the product left the manufacturer, then you are entitled to compensation for injuries caused by the defective product.  Many times, TBI victims blame themselves for their injuries.  "I should have known better than to do that."  But an incident that causes a traumatic brain injury is often not the fault of the victim.  The manufacturers of consumer and industrial equipment know that people are required to use these products in real world conditions.  People make mistakes, and when they make them around defective products, people get seriously injured. 

Manufacturers are well aware of the risks of injury and the injury statistics of defective products.  Manufacturers know that people will be permanently injured if safety devices are not provided.  The National Safety Council estimates that between 10 and 15 percent of all industrial accidents are caused by improperly designed equipment.  It is not a secret that some equipment manufacturers are more concerned with profits than they are with safety.  The law requires that safety is designed into production systems so that consumers will not be exposed to serious and permanent injuries from defective products.

 Slips and Falls

If a fall resulting in traumatic brain injury is caused by someone's negligence or a defective condition on the property, the owner of the property or other parties may be liable to compensate you. Is it important that you act promptly after the slip and fall incident?

It is important to immediately investigate an accident.  An attorney will arrange for investigative work, including immediate access to the property, photographs of the property and interviews with
witnesses.  Deadlines may also exist, which require that notice be given to a party very soon after the accident occurs.  Accordingly, time is of the essence.  All fall injuries should be investigated, even if the victim does not recall how the fall occurred.  Other evidence may be available to determine whether there is a valid claim.

For a Questionnaire for hiring an attorney, please click here.