A Durable Power of Attorney is a specific document in which a competent individual, prior to his or her injury/incapacitation, names another person to act on his or her behalf at such time as that individual becomes unable to manage his or her own affairs. The person named in the durable power of attorney will serve as the guardian of the individual without the necessity of petitioning the court to have the individual declared incapacitated in the event of a medical disability.
Durable power of attorneys are underused. A durable power of attorney should be signed by every competent patient who is catastrophically ill or injured, if they are competent. If the durable power of attorney is signed and the patient’s medical condition deteriorates, it will not be necessary to file a petition with the court to seek a formal guardianship.
GUARDIANSHIP
In some states, the courts still use the term “incompetent” when an individual is unable to manage his own affairs and money rather than the term adopted in many states, “an incapacitated person.” The guardianship procedures in most states, and the most commonly asked questions posed by family members of brain and spinal cord injured individuals are discussed below.
What is a guardianship?
Guardianship is a legal relationship between one individual (the guardian) and an injured/incapacitated individual (the ward) which gives the guardian the right and the duty to act on behalf of the incapacitated party in making decisions which affect that person’s life. Unless the guardianship is limited by the court in some way, the guardian will manage all of this incapacitated party’s personal, legal and financial affairs.
When do I need a guardian?
A guardian is necessary when an individual suffers a brain or spinal cord injury, illness, or is otherwise so disabled that the individual is unable to make responsible decisions concerning his/her medical, legal and financial needs and manage his/her daily affairs.
Why is a guardian needed?
A guardian has the legal responsibility of safeguarding the incapacitated person’s welfare.
Some of the various responsibilities and functions of a guardian are:
- Consult with the treating doctors concerning proper medical treatment and placement, if necessary;
- Legally speak for the incapacitated party as an advocate for that individual’s best interest;
- Apply for governmental benefits, Social Security Disability, Supplemental Security Income and state medical benefits;
- Open bank accounts, write checks and keep records of all financial transactions;
- In an injury case, retain an attorney to investigate the cause of the accident, seeking catastrophic health care benefits;
- Institute legal action to protect the incapacitated party’s rights against:
- The insurance company, for payment of proper medical benefits;
- The party who caused the accident, seeking catastrophic health care benefits.
- Safeguard continuity of health care;
- Set up proper Trust and Estate planning;
What is the legal test to determine if a person is incapacitated?
The legal test to determine whether or not a person is incapacitated in most states is an adult whose “ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he/she is partially or totally unable to manage his/her financial resources or meet essential requirements for his/her physical health and safety.”
The decision of whether or not a person meets the legal test for incapacity is made by a judge, based on medical documentation from the treating physician. It is not necessary that the doctor’s report be obtained from a psychiatrist. The court will accept a report or testimony from any medical doctor who has examined the patient and can give an opinion, based upon reasonable medical certainty, as to whether or not a guardian is necessary.
What is the difference between a guardian of the person and guardian of the estate?
The guardian of the person makes medical decisions whereas the guardian of the estates makes financial decisions. The court may or may not appoint the same person to be the guardian of the person and guardian of the estate.
Who should be appointed guardian?
- Spouse, Family Member. Generally, the guardian should be a family member who is responsible and will work in the incapacitated individual’s best interests. Usually, a husband, wife, parent, or next-of-kin is appointed guardian by the court. The court will not appoint someone guardian unless that person is over 18 years of age and the court feels that the person will act in the best interests of the incapacitated individual.
- Bank. It is sometimes a good idea to have co-guardians; often the family member is the guardian of the person, and the professional or a bank is the guardian of the estate. Banks are often used as guardians of the estate where there are substantial assets to be invested or a minor is involved. Each set of circumstance should be discussed with your attorney and with the family members involved, to determine which person or persons would be the best guardian for the incapacitated individual.
What is the procedure for appointing a guardian?
- Costs, Jurisdiction, Contents of Petition. If you decide that appointment of a guardian is required, a petition must be filed in the orphans’ court in the county in which the disabled individual resides. The petition must state certain information, which varies from county to county, but essentially it requires information concerning the relationship of the proposed guardian to the incapacitated individual, financial information of the incapacitated individual, facts and circumstances which led to the particular injury or illness, and medical documentation.
Is it necessary for the incapacitated individual to appear in court?
The requirements to have a guardian appointed vary, but generally if the treating doctor states that it would be against the best interest of the incapacitated individual to appear in court, the court will usually not require his or her appearance. Sometimes the judge will want to visit the incapacitated individual to discuss the appointment of the guardian, especially if the individual is able to communicate his or her wishes to the judge.
What is the procedure if an “emergency guardian” is needed?
An “emergency guardian” or sometimes called “temporary guardian” may be appointed by the court under certain circumstances. Usually an emergency or temporary guardian is appointed by the court when there is some medical, legal or financial urgency. An emergency or temporary guardian is usually appointed for a specific period of time pending the final guardianship hearing.
Is a guardianship revocable?
Yes, a guardianship is revocable. The incapacitated individual, or anyone acting on his or her behalf, may ask the probate court at any time to remove the guardian or revoke the guardianship. Medical documentation of the treating doctor is necessary to revoke a guardianship.
Why is the term “incapacitated person” used?
The words “incapacitated person” is a “legal term of art” which means that the court has determined that the individual can no longer manage his or her own affairs, and needs a guardian. Many times, clients or families will inquire as to whether or not they can be appointed as guardian by the court for their family member without a determination of incapacity being made by the court. This is not possible, as state guardianship laws require that an adult individual be declared incapacitated before a guardian can be appointed by the court.
Is it difficult to have a person declared incapacitated?
Courts are reluctant to declare a person incapacitated unless it is absolutely necessary and is based upon proper medical documentation.
How can I be sure a guardian is necessary?
Each case must be judged on its own facts. It is recommended that the treating doctor meet with the social worker, case worker, interested family members, proposed guardian, and attorney to discuss whether or not everyone agrees that a guardian is necessary. This approach alleviates court battles and enables the attorney to present unanimous opinion on behalf of the treating professionals and interested family members that a guardian is needed in a particular case. Since the courts are reluctant to declare a person incapacitated, a consistent approach with comprehensive medical information will insure that a particular court will appoint a guardian without delay.
Who is appointed a guardian if no family members or friends are qualified to serve as guardian?
The court has the power to appoint anyone as guardian in this case, and often will appoint an attorney or bank to serve as guardian where there are no qualified relatives or friends.
Must the court approve a settlement of a lawsuit for an individual who has a court-appointed guardian?
Yes, the court must approve any settlement of a lawsuit for an individual who has a court-appointed guardian. The reason is that the court must determine if a particular settlement is in the best interests of the incapacitated person. The court continues to assume jurisdiction over all financial matters involving an individual who has a court-appointed guardian until the guardianship has been revoked. Based upon medical information, it must be shown that the person is able to manage his or her affairs and money.
The issue of guardianship is sometimes avoided because it is an emotional issue, but it is crucial that family members and professionals discuss the issue of guardianship with each other as soon as possible after the traumatic brain injury or spinal cord injury occurs, in order that the best interests of the disabled individual are protected.