In the aftermath of a serious or fatal tractor-trailer accident, the family of the injured/deceased will be left with some important and life-changing legal issues to tackle. Ideally, the injured/deceased will have executed or prepared a power of attorney, a living will, and a last will and testament. But in most cases, these documents are not prepared or not sufficient to cover the needs at the time of the accident.
InjuryBoard has developed this article to provide you with important information and simple ideas that will help you and your family deal with this difficult time
Guardian and Conservator Issues
When the victim’s injuries are severe enough to incapacitate, the family (spouse, parent, brother, sister, etc.) may need to take steps to make decisions on behalf of the individual. To do this, the family member must become the legal guardian or conservator of the incapacitated victim.
One of the first things a family needs to do for the victim is decide if a guardian/conservator is needed. If so, the family needs to then have a meeting and choose one person who is going to act in this role. Having more than one guardian/conservator would cause too much confusion.
The next issue the family should decide on is what powers the guardian will have. Typically a guardian/conservator has general powers to make any necessary decisions for the incapacitated victim. This type of guardian basically has the same power of decision that a parent would have over a child. However some jurisdictions allow “special” guardians which only allow the guardian to control one or more aspects f the victim’s affairs. If there are trust issues or other concerns within the family, this may be a good option if available.
Establishing a guardianship is a complicated process and you should consult with an attorney to assist you with the process. If there is an attorney who has a close relationship with the family, he/she would probably be the best choice to handle this process. The attorney can guide them through the Guardian and Conservator process by preparing the right documents, explaining the process, and ensuring that the family’s needs are met and that the victim’s rights are preserved.
Injured people may not be able to perform important functions for themselves for as much as a year. Someone has to step in and assist the victim and the family through this difficult time. Guardianship is one step you can do to assist the family, another step that can be taken is...
Special Needs Trust
A special needs trust makes sure that the disabled victim can still benefit from the use of his/her property. The victim’s property is held for their benefit in a trust. The trust takes possession of the victim’s property but only uses/manages it for the benefit of the victim. This can assist the victim because he/she may lack the mental ability to handle their finances. The trust also allows the victim to continue receiving his/her access to government benefits.
The Special Needs Trust can be used to receive personal injury settlement proceeds on behalf of a disabled person in order to allow the person to qualify for Medicaid benefits.
The trust may be run by a family member (possibly the same one acting as guardian). Because the trust also allows the victim to continue to receive benefits and receive the benefits from their assets, it would be a good idea to discuss this option with a qualified attorney as soon as possible to assist the victim and the family.
Social Benefits / SSDI and Workers’ Compensation
It is extremely important that victim’s social benefits (Social Security Disability Insurance, Medicare, Medicaid, Workers' Compensation, etc.) are started or continued immediately. Medical bills and possibly other financial burdens will be piling up, so you do not want to wait. While it is obviously a difficult and stressful time, it is important to start filling out the applications right away, any delay could affect the victim and/or your family.
These social benefits may seem small, but they are a reasonable safety net. They are well-built and they are constructed in a way that as soon as money starts coming in from another source, the government money starts going away. That is why it is important that this is done in coordination with your Special Needs Trust attorney because they are tightly connected.
Typically, your social benefits begin to decrease as the benefits from other areas increase. So if you receive a settlement or some benefits from a health coverage policy at work, the government benefits are reduced by the amount that is received. BUT if there is a properly prepared Special Needs Trust, the government allows you to keep your social benefits as well as the income that comes from the trust.
Here's an example -- say your social benefits were paying you $2,000 a month or $24,000 a year. And then you received a settlement of $1,000,000 in a fund that was able to pay out $70,000 a year of support. Under normal circumstances, the social benefits would be reduced to zero (you're already making more than $24,000) and the injured would have to live off only the $70,000. But, you can place the $1,000,000 into a Special Needs Trust, have it still generate the $70,000 without affecting your government benefits. You would get the $24,000 in addition to the $70,000 and you would end up with a total of $94,000. This could be a big difference for a family or for an injured person who can only rely on this type of income to live.
Now there is a catch. At the end of the victim’s life, the remainder of the trust fund goes back to social institutions - i.e. the government. All of it reverts back. There is nothing left for the estate. But this can be a tremendous help to support an injured victim who is relying on the additional financial support while struggling with a catastrophic injury.
Guardianship vs. Power of Attorney
Guardian and Conservator powers are not the same thing as power of attorney or medical power of attorney. The guardianship can only be sought when the subject is incapacitated or unable to manage his/her affairs. A normal power of attorney that actually does something is that it is durable. Durable means that the power of attorney can be executed while the subject has full capacity and can be built to remain in effect if the subject becomes incapacitated. It's important to check your state law on limitations and capabilities of power of attorneys. Most power of attorney documents do not have a health care directive. If you want that as a part of your document, you need to make sure that it's added.
The obvious drawback in our situation is that with a sudden incapacitating accident, the victim is unable to execute a power of attorney. Some jurisdictions allow a springing power of attorney, which is a power of attorney that only takes effect when the subject becomes incapacitated, but there will still need to be a judicial determination of incapacity. Depending on the legislation in your jurisdiction this may be more time staking and arduous than simply petitioning for guardianship.
- KEY STRATEGY -- If you're going to hire an attorney to do a power of attorney, consider this alternative. Go to your local hospital and request the medical power of attorney form that the doctors use, locally. The doctors will usually avoid reading extensive paperwork that is unfamiliar to them. By providing the doctors with the form they're familiar with and used to seeing, you may save valuable time.
Although the information we present on this website is designed to help shed light on the often complex legal and procedural issues arising out of a tractor-trailer accident, please remember that there will be times when it’s best to consult with a legal expert regarding your situation. While this site provides good general information, an attorney can provide legal advice tailored to your situation and help guide you personally to a favorable outcome.
As a nationwide network of independent attorneys and law firms focused on personal injury law, the member-attorneys of InjuryBoard are available to assist you with a completely free and secure review of your case. If you have additional questions about your case, we encourage you to learn more about InjuryBoard and let us connect you with an InjuryBoard Attorney Member practicing near you.
Please remember that hiring an attorney is an extremely important decision and you should take care in choosing one that’s right for you. By using the information found on this website, combined with the legal advice of an attorney, you should be well on your way keeping your family safe and getting back on the road to recovery.
Read the first article: How to Stay Safe and Avoid a Tractor-Trailer Accident