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When an individual sustains a traumatic brain injury in a fall or an accident, they must turn to their medical team to help them determine how severe the injury is. Some brain injuries are worse than others, and in unfortunate circumstances, may leave the injured individual with diminished brain capacity. There are degrees of this injury that are best diagnosed by a medical team. Doctors will work with the individual and their family to help determine what they are capable of, and the family can seek advice from the hospital’s social worker to understand the next steps. Each case is personal and the level of injury varies in each individual, which is why it is important to understand how to properly assign a power of attorney after a traumatic brain injury. 

A power of attorney is a notarized document that gives a chosen individual the right to represent another party. In cases of brain injury, there are several different types of power of attorney documents that can be issued. 

Different Types of Power of Attorney Documents

The chosen representative is usually referred to as an “agent,” and is chosen by the individual (or another knowledgeable party, depending on the level of injury and the individual’s capacity to make decisions). The injured party is known as the “principal”.

A general Power of Attorney allows the agent to act in any capacity on the principal’s behalf. This document may have a set beginning and end date and allows the agent to do everything including sign off on medical treatments, manage their estate, talk to financial officials, and just about anything that requires a legal signature. A specific or Special Power of Attorney is similar but has listed provisions for which the agent is allowed to represent the principal. For example, someone with a TBI may grant agent status to a family member in cases where medical or legal actions are required, but nothing else. A durable Power of Attorney allows the agent to act on the principal’s behalf with no time limits if the principal is incapacitated. 

How is the Need for Power of Attorney Decided?

Families must rely on medical experts to produce a diagnosis and help them understand to what level cognitive function has diminished. In an accident case where the family must also find legal help in order to procure compensation, talking to a lawyer is necessary. All lawyers in VA are subject to a specific code of conduct when dealing with clients that have a diminished capacity for decision-making. Both your doctor and lawyer will determine their capability based on a few factors:

  • Is the client able to articulate their wants and expectations for their case in a reasonable way?
  • Is the client able to understand the consequences when making legal decisions?
  • Are they able to understand fairness in a court of law?

If the answer is no, then the lawyer has the responsibility of acting to protect the client and will suggest that the client grants Power of Attorney in certain situations to a trusted friend or family member. If there is no one the client can trust, then a Power of Attorney is not recommended. If a person cannot make these decisions, the agent must then be granted the legal right to work with an attorney on the principal’s behalf. 

For more information on how to obtain a Power of Attorney or to file an accident claim on behalf of someone with a TBI, contact Alexander Law Group, PLC. We’ve had 20 years of experience working with clients to help them recover the compensation they deserve. We work to protect the integrity and wishes of all of our clients.

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