A person injured in an accident can be left unable to make their own healthcare and financial decisions due to incapacity and/or disability. If that person is an adult, their power of attorney can makes those decisions.
What happens if the person injured had not created a power of attorney before their injuries?
In such a circumstance, a guardianship and conservatorship action will have to be filed with the court. A guardian is someone who can make all non-financial decisions for an incapacitated person. A conservator can make financial decisions for the incapacitated person.
To become a guardian, a petition must be filed with the court. State laws vary considerably on procedures, but generally it must be proven that the person needing a guardian cannot makes decisions such that they are a danger to themselves. Thus, a guardian / conservator must be appointed to make all decisions for them.
The person applying for guardian and conservator must prove to the court that they are trustworthy managing the money and decisions of another person. Someone with criminal convictions or a past history of bankruptcy may not be approved by the court.
In Missouri, where I practice law, anyone can file such a petition. In reality, family members are given preference.
Once approved by the court, the guardian / conservator normally must produce an inventory of accounts and assets of the individual. They can almost immediately step into the shoes of the injured person to discuss healthcare decisions with their doctors, including where treatment is received, what type of treatment is received and which doctors provide treatment. They can review medical records, deal with health insurance companies and write checks from accounts to pay for services needed for the injured person.
They can arrange housing, access all funds necessary for expenses and hire assistance for the care of the person.
Perhaps most importantly, they can hire lawyers to pursue litigation against the party that caused their injuries.
Any settlement for the personal injury suit will be managed by the guardian / conservator, subject to certain exceptions where a special needs trust must be created.
Because the guardianship / conservatorship process necessarily creates uncertainty (Who will file? Who can serve as guardian? Who will the court approve?), it is always preferable that a person creates a financial power of attorney and healthcare power of attorney soon after they become adults.
Life is full of uncertainties and the power of attorney is a great way to bring certainty to your life if you ever become incapacitated and unable to make your own decisions. The guardianship route, however, is still available if a power of attorney was not created.
Creating powers of attorney or applying for guardianship is something that can be done with the assistance of a lawyer like, a competent St. Charles, Missouri estate attorney.
Thanks to our friends and contributors from Legacy Law Center for their insight into guardianship and personal injury.