Legal and Financial Issues


Why a guardian?

A basic guide to the different legal and financial issues facing the family of a brain-injured person.

"The first few days were ok, because I knew his pin number for his ATM card. But then, when the house payment was due, I made the mistake of trying to go to the bank and withdraw money from his account. They took away the ATM card and cancelled electronic access. All of our money was in an account in my husband's name and I had a family to feed and care for."

If you are like most families; you have made arrangements for the care of your family in the event of an unexpected death, but have not even considered the ramifications of a severe brain injury. Many of the financial decisions and assets may have been allocated to one partner in a marriage, or allocated to the person in the coma without any other arrangements.

Guardianship may become a necessity for the person in a coma. The person appointed is called the guardian, the person needing the guardian is called the ward.

But a guardianship is not just for a person's financial affairs: called a guardian of the estate. Guardianships are also for the "person" of the ward, allowing the guardian to make the decisions the ward would make for himself about his care, custody and life, were he or she able to make the decisions.

"The social workers, the doctors, and the hospital administrators were constantly asking me to make decisions. As his wife I was given some say, but everybody seemed to want some official stamp of authority."

How do you get a guardian appointed? Guardianships are governed by the probate laws and require a filing of a petition (like a lawsuit) with a court to get established. In most cases it will be necessary for you to hire an attorney to get a guardianship established, although it is generally a non-controversial proceeding.

"I went a lawyer and told him my story and he filed the papers that same day. We were supposed to have a report from a doctor, but getting the doctors to write up anything seemed impossible. After all, we would just have to "wait and see". But I was out of money with no way to access our marital funds. Fortunately, the judge was helpful and concerned. The records didn't say my husband was incompetent, but the judge listened to my story and signed the papers for a temporary order."

This article is written with reference to Wisconsin law, but the guardianship laws are substantially similar in most states. Wisconsin specifically authorizes the appointment of a guardian where as result of an "accident, organic brain damage" a person's ability to provide for his or her own care or custody has been "substantially Impair(ed)." Certainly, a person in a coma will meet this requirement. If you can get a doctor to put something relative to the coma in writing, the petition should be granted. And most judges have enough common sense to appoint a guardian on at least a temporary basis, when a person is in a coma.

Guardianships can be both temporary and permanent. In most brain injury cases, it is probably best to start with the temporary guardianship. Wisconsin allows for such appointment for a period of 60 days, which can be extended for an additional 60 days. The tougher question arises at the end of such period. If the survivor is out of the coma and with ability to communicate, will the court continue the guardianship? The requisite finding of incompetency or other like incapacites may be hard to establish. And a new problem may arise: Will the survivor cooperate with a continuation of the guardianship?

Who can petition the court and who gets to be the guardian? Any relative, public official or any other person can petition for the appointment of a guardian. The hearing on a permanent guardianship is a formal court proceeding. The court's natural preference will be to appoint the closest relative, but provisions are made to honor the wishes of the ward and or his/her parents. Generally, the spouse will be appointed the guardian, but battles between the spouse and the survivor's family, are not uncommon. This places the spouse in a precarious position, caught between trying to maintain a life outside the trauma center and the vigil at the bedside. Bizarre criticism's of this balancing occur almost routinely and unfortunately may be reinforced by the survivor in early stages of recovery. The spouse is more likely to see the survivor's deficits, whereas the family sees a superficial miracle. When the survivor is in denial, the spouse's caregiving is construed as improper by both the survivor and the survivor's family.

How long does the guardianship continue? In theory, as long as it is needed. The laws talk in terms of when the ward is no longer incompetent for the guardianship of the person and when the guardian is capable of handling his or her property.

Again, this places the spouse in a precarious position. The recovering survivor typically thinks they are far more competent than they are. When the spouse says no, the rebellion begins. It is critically important that all of the survivors family work together at this time, to reinforce the need for controls. Even "so called mildly" brain injured individuals have significant problems with judgment that subtly effects their ability to "handle his or her property."


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Attorney Gordon S. Johnson, Jr.

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