Financial / Legal Issues
There are a number of legal and financial issues that need to be addressed once you have an idea of the seriousness of your loved one’s situation. If the person is going to be incapacitated for period of time below are some of the issues you may consider.
Just as we do not give medical advice on this site we also do not give legal or financial advice. Please consult your attorney or financial advisor regarding your particular situation.
Guardianship – A person who has suffered a brain injury will probably not be able to make decisions regarding their care immediately after the injury. The hospital typically who will work with the family to identify the appropriate person to sign the releases for whatever procedures are recommended.
If the injury is serious, a guardian may need to be appointed to act on a more long-term basis. A guardian is a court appointed individual who is given the right to make decisions for the incapacitated individual, the ward.
There are different levels of guardianship, sometimes just related to medical issues or to financial issues or both. The county Probate Court typically makes the determination and you will typically need an attorney to represent you and file the papers with the courts. In our situation, the court’s bailiff came to our house to see our daughter first-hand to make sure for the judge that the situation was in fact was as it was being represented.
The court does require periodic reports from the guardian and also requires the doctor periodically re-certify that the guardianship is still required. Being a guardian is a serious responsibility and should not be taken lightly. But, at the same time, being a guardian is another way to show your love and to help care for your loved one with a brain injury.
Short Term / Long Term Disability - If the injured person was employed at the time they acquired the brain injury, they may eligible for short tem and long term disability coverage through their employer. A typical benefit offered to employees may make an employee eligible to apply for short term disability for a period of time after the injury, such as three months. The person could be paid 80-90% of their base pay. After some period and the employee if still unable to work, they must apply for long term disability. If approved, the employee is then paid a lower rate, perhaps 60% of their pay, for an extended period of time. Periodic reports from the doctor will probably be required to continue the coverage.
Although most typically seen as a part of an employees benefit package, Disability insurance coverage can also be purchased by individuals. Check your files and with your carrier if your unsure if the injured person may have such a policy.
SSI - Supplemental Security Income (SSI) is a Federal income supplement program funded by general tax revenues. It is designed to help aged, blind, and disabled people, who have little or no income; and it provides cash to meet basic needs for food, clothing, and shelter. SSI disability payments are made on the basis of financial need.
Disabled means you have a physical or mental problem that keeps you from working and is expected to last at least a year or to result in death. Children as well as adults can get benefits because of disability. When deciding if a child is disabled, Social Security looks at how his or her disability affects everyday life. For information on the SSI disability program, ask at any Social Security office.
Social Security Disability – In addition to the Supplemental Security Income (SSI) program, Social Security also pays disability benefits under the Social Security disability insurance program. For most people, the medical requirements for disability payments are the same under both programs and a person’s disability is determined by the same process.
Eligibility for Social Security disability is based on prior work history under Social Security. There are differences in the eligibility rules for the two programs. For information on Social Security disability insurance program, ask at any Social Security office.
Note: People who qualify for SSI may also qualify for Medicaid and other financial programs.
Special Needs Trust – To qualify and then continue to receive SSI, Medicaid, and some other assistance programs there are strict limits on the value of assets the disabled person may own.
This may pose a problem when your or your family try to provide for the long-term needs of the brain injured person. For example, if someone in the family plans to leave an inheritance or life insurance benefit to the brain injured person, that act may affect their eligibility. If the person suffered their brain injury as a result of an accident, there may be an insurance settlement involved which again can affect their eligibility.
A way to preserve the person’s eligibility for these assistance programs while also putting assets aside for their long term care is the Special Needs Trust. A Special Needs Trust is a special kind of trust which holds title to property for the benefit of a child or adult who has a disability. The Special Needs Trust can be used to provide for the needs of a disabled person to supplement benefits received from various governmental assistance programs. A trust can hold cash, personal property, or real property, or can be the beneficiary of life insurance proceeds.
The trust is established through your local Probate Court and will require the services of a lawyer. The disabled person cannot have any control of the assets. Instead, a person will be named as Trustee and that person will control of the assets. You will want to find a lawyer who has experience in drafting these type trusts. They are not commonplace and if not drafted properly they can overturned leaving your loved one ineligible for the assistance programs and possibly responsible to repay for services they have already received.
The "Special Needs" in the name refers to items for maintaining the comfort and happiness of a disabled person, when such requisites are not being provided by any public or private agency. Some expenditures that may be allowed include treatment or therapy not covered by your medical coverage, training programs, transportation expenses, or life insurance. Other items that may be allowable include comfort items such as: TV’s, CD players, computers, or even things like vacations, ballgames, or movies.
As my daughter’s guardian and trustee of her Special Needs Trust, I am paranoid about what I spend her money on. My daughter’s attorneys are fantastic about supporting us and are always happy to answer my questions. So, my advice is do not take any chances and check with your attorney beforehand as to the rules as to what the trust can and can not pay for.
Living Wills – As the heart-wrenching story of Terri Schiavo has shown us, making your wishes known before you are in a position where you are not able is very important. Get with your attorney and get it in writing. Know the laws in your state and know who will be recognized to speak for you if you can not speak for yourself.
My editorial comment is one of caution. I have talked with a number of people who told they were not going to live. I know many people who were told they would never be able to do all kinds of things they have already accomplished. I personally would be not be so quick to have someone pull the plug.
I would further caution people when they start including the right to have someone withhold food and water as part of their directives. For me, someone using a g-tube is not what I would qualify as being kept alive by extraordinary measures. The decisions are of course your own but make sure you are well informed beforehand.
Worker’s Comp – If you were injured while on the job, you may be able to qualify for Worker’s Compensation. Workers' Compensation is insurance that provides cash benefits and/or medical care for workers who are injured or become ill as a direct result of their job.
Workers' Compensation laws are designed to ensure that employees who are injured or disabled on the job are provided with fixed monetary awards, eliminating the need for litigation. These laws also provide benefits for dependents of those workers who are killed because of work-related accidents or illnesses. Some laws also protect employers and fellow workers by limiting the amount an injured employee can recover from an employer and by eliminating the liability of co-workers in most accidents. State Workers Compensation statutes establish this framework for most employment. Federal statutes are limited to federal employees or those workers employed in some significant aspect of interstate commerce.
Vocational Rehabilitation – When a brain injured person has recovered enough to consider returning to work you may be eligible for services from your state’s Vocational Rehab program. Many states will offer training, work programs, and other services to help with the transition back to work. The goal of these programs is to provide vocational rehabilitation services to help people with disabilities become employed and independent. Some may also offer services to businesses, resulting in quality jobs for individuals who have disabilities.
MRDD - Check to see if there is an agency similar to what we have in Ohio in the Ohio Department of Mental Retardation and Developmental Disabilities (MR/DD). This agency is committed to people with mental retardation and developmental disabilities, their families, the professional staff who support them, their neighbors, their friends, and anyone committed to supporting and advocating for individuals with special needs. The county MRDD agency in our area also offers their full range of services to people with brain injuries.