Making Decisions for a Loved One After a Severe Brain Injury: Guardianship, Power of Attorney, and Protecting Their Future

When a brain injury is severe, families are thrown into two crises at once. The first is medical and emotional, and it is overwhelming enough on its own. The second catches almost everyone by surprise: the discovery that loving someone, or being married to them, or being their parent, does not give you the legal authority to make decisions for them.

A spouse calls the insurance company and is told they cannot discuss the case. A parent of a 19-year-old in the ICU learns that, in the eyes of the law, their child is an adult, and they have no automatic say. A hospital prepares to discharge a patient who cannot yet care for themselves, and no one in the family has the legal standing to direct what happens next. This article explains how to gain decision-making authority, how to do so quickly when time is short, and how to protect the injured person’s benefits and future at the same time.

Why Families Suddenly Have No Authority

The law presumes that every adult makes their own decisions, and it does not automatically transfer that power to family members when an adult becomes incapacitated. Marriage does not transfer it, and neither does being the parent of an adult child. Even a child you have raised becomes, at 18, a legal adult whose medical and financial decisions are their own.

The injured person can no longer make decisions, and no one else is automatically allowed to make them either. Closing that gap requires a legal tool, and which tool you need depends almost entirely on one fact: whether any planning was done before the injury.

Durable Power of Attorney: The Document That Avoids Court

The cleanest path is one that has to be set up in advance. A power of attorney is a document in which a competent person (the principal) gives someone they trust (the agent, or attorney-in-fact) authority to act on their behalf. An ordinary power of attorney, though, becomes void the moment the principal is incapacitated, which is exactly when a brain-injured person needs it most.

A durable power of attorney solves this. It is written to remain in effect even after the principal becomes incapacitated, so the chosen agent can step in immediately to direct medical care, manage finances, apply for benefits, and work with the medical team and lawyers. When a durable power of attorney is part of the patient’s medical record, it can speed urgent decisions at the worst possible moment and spare the family a trip to court.

The limitation is timing. A durable power of attorney can only be signed by someone who is still competent. Once a person is incapacitated, it is too late to create one, and the family is left with guardianship instead. This is why anyone facing serious health issues, or simply planning responsibly, should consider signing a durable power of attorney while they are able to.

Guardianship: When There Is No Power of Attorney in Place

If no durable power of attorney exists and the injured person can no longer make decisions, the family generally has to ask a court to appoint a guardian. Guardianship is a legal relationship that a court creates when it finds that a person cannot manage their own affairs because of incapacity.

What a Court Must Find

Courts do not grant this lightly, because they are taking away an adult’s right to make their own decisions. The person seeking guardianship generally must show, by clear and convincing evidence, that the individual is unable to make informed decisions. That usually means medical evidence and testimony from professionals and from people who know the person well. The court’s process is designed to protect the dignity and rights of the incapacitated person, and the standards vary by state.

What a Guardian Can Do

Once appointed, a guardian has real authority. The guardian becomes the legal voice the injured person can no longer be. A guardian can: 

• consent to medical treatment
• access and authorize the release of medical records 
• apply for public and private benefits
• file appeals when benefits are denied 
• manage finances and safeguard assets
• hire attorneys to act on the person’s behalf 

Emergency and Temporary Guardianship

Families often discover this problem under a deadline. One common example is when a facility is preparing to discharge a patient who is not ready to leave, and there is no one with authority to arrange safe, appropriate care. Many states provide procedures for emergency or temporary guardianship precisely for these situations, so a responsible decision-maker can be put in place quickly. If you are facing a discharge or an urgent medical decision and have no legal authority, this is a reason to call a lawyer now rather than next week.

Advance Directives and Living Wills

Two related documents are worth understanding. An advance directive is a set of instructions to the medical team about a person’s care wishes if they cannot communicate. It is not limited to end-of-life situations and can apply to conditions like a brain injury, stroke, coma, or dementia. A living will is narrower. It generally sets out a person’s wishes about end-of-life care only when they are terminally ill and cannot communicate. Both can guide difficult medical decisions, and both, like a durable power of attorney, have to be created while the person is still able to express their wishes.

Protecting the Person’s Benefits and Future Care

Securing decision-making authority is only half the job. The other half is protecting what the injured person will need for the rest of their life, and here, well-meaning families can accidentally cause harm.

Special Needs Trusts

Many people with a severe brain injury rely on means-tested government benefits such as Medicaid and Supplemental Security Income. Those programs have strict limits on the assets a recipient can hold. If money passes directly to the injured person through an inheritance, a gift, or even a legal settlement, it can disqualify them from the very benefits they depend on. A special needs trust is designed to hold those funds so they can pay for the person’s care without costing them their eligibility. Because the rules are technical and both federal and state law apply, this is work for an estate attorney who specializes in planning for people with disabilities.

Life Care Plans

For a catastrophic injury, families also need to understand what a lifetime of care will actually cost. A life care plan, prepared by a credentialed life care planner, reviews the medical records and projects future needs and costs: surgeries, rehabilitation, medication, equipment, attendant care, housing, and case management. A life care plan helps a family answer the two hardest questions honestly: who will care for this person if you no longer can, and how will it be paid for? It is also accepted as expert evidence when a legal claim is part of the picture.

Coordinating with Estate Planning

All of this should fit together. A family’s estate plan needs to account for the disabled person’s benefits and future needs, so that an inheritance helps rather than accidentally disqualifies them, and so that a plan is in place for who will make decisions if the current decision-maker is no longer able to. A judge who has never met your family should not be the one deciding these questions by default.

How These Pieces Fit Together, and How CPR Helps

When a brain injury was caused by someone else’s negligence, these legal needs often arrive at the same time as a potential injury claim, and they are connected. To investigate and pursue a catastrophic-injury case on behalf of someone who cannot act for themselves, a guardian frequently needs to be appointed to hire counsel for the injured person or their estate. Because of that, an experienced brain injury firm investigating the cause of the injury can often help the family establish guardianship at no separate cost, while making sure the family, not a stranger, controls who serves as guardian.

The goal is simple to state and hard to do alone: get the right person the legal authority to act, protect the injured person’s benefits and future care, and, where negligence caused the injury, pursue the full and fair compensation that funds the rest of their life. These pieces work best when they are coordinated from the start.

Talk to Cohen, Placitella & Roth About Protecting Your Loved One

If a brain injury has left your family without the authority to act, you do not have to face it alone. Contact Cohen, Placitella & Roth for a free consultation. Call us at (888) 324-7683 or contact us online. We work on a contingency fee basis. You pay nothing unless we recover compensation for you.

Attorney Advertising. Prior results do not guarantee a similar outcome. This article is for informational purposes only and does not constitute legal or medical advice. Guardianship, power of attorney, trust, and estate laws vary by state. Consult a qualified attorney in your state about your specific situation. Cohen, Placitella & Roth, P.C. is licensed to practice in New Jersey, Pennsylvania, and other jurisdictions, and represents clients nationwide with qualified co-counsel.