Understanding Guardianships and Conservatorships After Traumatic Injuries

When people think of guardianships and conservatorships, diseases that impact cognitive ability may come to mind. While dementia and Alzheimer's are two conditions that may necessitate implementing these legal arrangements, certain serious injuries can also leave an individual incapacitated. Accidents can arise at any time resulting in traumatic brain injury, paralysis, and permanent cognitive impairment. It’s important to understand how a conservatorship or guardianship after traumatic injuries can be a crucial tool to ensure the injured person’s best interests are protected.

Key Takeaways

• A conservatorship or guardianship after traumatic injury may be needed if an individual cannot make sound decisions or care for their basic needs.
• A guardianship or conservatorship requires a judge to render a finding of legal incapacity, regardless of the individual’s medical diagnosis.
• While a guardian can be appointed to ensure an incapacitated person’s daily needs are met, a conservator can manage their assets and property.
• A guardianship or conservatorship can be terminated once the injured person has regained capacity.

When is a Conservatorship or Guardianship After Traumatic Injury Necessary?

The unexpected can arise at any time; and car, motorcycle, truck, bicycle, and pedestrian accidents can leave a person disabled or severely injured. A conservatorship or guardianship after traumatic injury may be necessary when an individual cannot manage their personal care or financial affairs due to incapacity. Critically, an injury itself is not enough for a court to give someone else the authority to make medical or financial decisions on behalf of another. Before a guardianship or conservatorship can be implemented, a court would have to determine that the injured person is legally incapacitated.

Legal incapacity is determined by the court and is not the same as medical incapacity. A medical diagnosis alone does not grant anyone decision-making authority; the court must find that the individual cannot understand choices, communicate decisions, or meet essential needs. The court will review a number of factors to decide whether a guardianship or conservatorship is appropriate after an injury, including whether the individual can make sound decisions and meet their basic needs. Notably, because these arrangements can significantly impact a person’s civil liberties, they are a last resort. A court would first evaluate whether less restrictive means are available, such as a power of attorney, advance healthcare directive, or supported decision-making.

How Can a Guardian Assist Someone with an Injury?

When an individual suffers a brain injury or another type of injury that impacts their ability to care for their own welfare on a daily basis, a guardian can help ensure their needs are met. Both guardianships and conservatorships can be limited or tailored so the court grants only the authority that is necessary based on the person’s functional abilities. A guardianship after traumatic injury can be limited to certain issues, or the guardian can be provided with a broad range of powers. If the situation is urgent and there is a substantial risk of harm to the injured person, an emergency guardianship may be put into place by the court.

Specifically, a guardian can assist an injured person by handling decisions related to:

• Living arrangements
• Medical providers
• Healthcare
• Medical treatments
• Medications
• Rehabilitation

A guardian has a duty to take reasonable care of the person’s clothing, furniture, and personal effects. A guardian is not legally required to use their own money to pay for these or any other needs of the incapacitated person. The guardian should use the individual’s own funds and available governmental benefits or services to meet their needs, but has no obligation to contribute personally.

Managing Money and Property with a Conservatorship After an Injury

If a traumatic injury leaves a person incapacitated and unable to manage their financial affairs, a conservatorship may be ordered. Like a guardianship, a conservatorship may be limited or give the conservator a wide range of authority, based on the individual’s specific needs. A conservator may be responsible for the following:

• Paying bills
• Managing bank accounts
• Overseeing investments
• Handling legal matters
• Managing real estate
• Filing taxes
• Handling business matters

A conservatorship can be a good way to manage money and prevent financial exploitation in the event of an emergency, such as an accident that leaves an individual incapacitated. In these cases, an injured person’s loved ones may petition for an emergency conservatorship, which lasts for a period of 60 days, to make immediate decisions. To obtain an emergency conservatorship, the petitioning party must be able to demonstrate that the person in need of the conservator cannot manage their financial matters and there is an immediate risk of assets being lost or dissipated. In addition to managing ordinary financial matters, a conservator may also be required to resolve legal or insurance issues arising from the injury.

Why a Conservator May Be Necessary for Legal and Insurance Claims

In many situations involving traumatic injuries, a conservator is also needed to handle the injured person’s legal, insurance, or financial claims. When an adult lacks the ability to make or communicate decisions, family members—including spouses, parents, or adult children—do not automatically have authority to act on their behalf in a personal injury, workers’ compensation, or insurance matter. Unless the individual previously signed a valid durable power of attorney, family members generally cannot hire an attorney, enter a retainer agreement, approve a settlement, sign releases, receive settlement checks, or manage settlement proceeds.

Insurers, employers, healthcare providers, and attorneys typically cannot accept signatures or binding decisions from anyone except the injured person or someone with formal legal authority. Without a conservator (or a preexisting power of attorney), claims may be delayed, and settlement funds cannot be finalized or distributed. Appointing a conservator ensures that someone has the legal authority to pursue the claim, negotiate, sign required documents, and protect any recovery for the injured person’s benefit

Can a Guardianship or Conservatorship End Post Injury?

A conservatorship or guardianship after traumatic injury may end in the event that capacity is regained. To terminate the arrangement, the individual, the guardian or conservator, or another interested party may file a petition with the probate court demonstrating why the arrangement is no longer needed. A hearing will be scheduled where evidence can be presented, including medical documentation and testimony from family members. If the court determines the guardianship or conservatorship is not necessary, the individual’s full legal rights to make decisions about their person and finances would be restored.

Contact an Experienced Minnesota Guardianship and Conservatorship Attorney

If you have questions about conservatorship or guardianship after traumatic injury, it’s best to consult with an experienced attorney who can best assist you. At Dave Burns Law Office, I provide trusted representation for Minnesota guardianship and conservatorship proceedings, including those involving disputed matters and complex litigation. I welcome you to contact me at (612) 677-8351 or by emailing dave@daveburnslaw.com. I assist clients throughout the Twin Cities metro area and am available to meet with clients in both Minneapolis and St. Paul.