Understanding Legal Decisions
Acquired Brain Injury Medicaid Waiver Training
Kentucky Department of Mental Health and Mental Retardation 2005
Developed by the Brain Injury
Association of Kentucky
under contract from the
Department for Mental Health
and Mental Retardation Services.
Approved for one hour of
Acquired Brain Injury Waiver
Continuing Education Training
This module will provide you with
information related to the legal
decisions families might need to make
on behalf of a family member with a
It will take you approximately
one hour to complete this
Before you begin, you must
take a pretest. Ask your
supervisor for the pretest that
corresponds to this module.
Complete the pretest and turn
it in to your supervisor before
beginning this module.
When you have completed the pre-
test and given it to your supervisor,
ask for the test that corresponds to
You may take the test as you
complete the training module.
When you complete the training,
turn the test in to your supervisor.
What is an acquired brain injury?
Acquired Brain Injury (ABI) is an
injury to the brain that occurs
after birth. ABI is not due to a
birth defect or to a disease that
is progressive like multiple
• One in five families report they have
a family member with a brain injury.
• 60% of all head injuries occur under
the age of 21.
• 214,000 individuals with head
injuries may need life long services and
supports from the state.
The importance of planning
Some individuals with brain injuries
may not be able to make decisions
It will be important for families to help
make those decisions or to appoint
someone else to make them.
It will help you if you understand the
different types of legal assistance
someone might need.
Some terms you may hear include the
• guardian ad litem
• power of attorney
• living will
• adult protective services
This module will define each of these
and other related terms.
Establishing need for legal assistance
If a person, 18 years of age or older, is
unable to make legal decisions related to
personal or financial care, the family or
others must go to court to declare that the
person is legally “disabled”.
The court then appoints someone to act on
the individuals behalf.
• This action takes place in
Once a petition has been filed with the
court, a hearing will be scheduled within
Before the hearing, the individual must be
examined by an interdisciplinary team.
The team determines if the individual is
“competent” to care for his or her personal
and financial needs.
The interdisciplinary team is made up of
• a physician
• a psychologist
• a social worker
The team will then file a report with the
court ten days prior to the jury trial.
At least one member of the
interdisciplinary team will testify to the
ability of the individual to make “informed”
decisions concerning his or her personal
and financial affairs.
A jury declares that a person is
“disabled” – that he or she is unable to
make decisions about personal and/or
Immediately after a jury finds a person
disabled, a judge rules on who should
become the guardian and/or
Guardianship is a legal relationship
between a capable adult, the
guardian, and a person who has
been determined to be legally
A Guardian may be given full
responsibility for the individual if he or
she is found to be “disabled”.
This means that the guardian
would make decisions on behalf
of the individual as it relates to
both personal matters and
financial matters, including all
The guardian, using the money of
the individual, provides food,
shelter, clothing and consent for
A guardian has the personal and
legal responsibility for safeguarding
the individual’s welfare.
Personal matters might include the
• where to live
• who to live with
• where and if to work
• medical treatment
• auhorize inspection or
release of medical records
• begin legal action
Financial matters might include the
• managing a check book or
• paying bills
• keeping financial records
• applying for benefits
• setting up trust and estate
• filing claims and other
• paying taxes 19
Conservatorship is a legal relationship
between a capable adult, the
conservator, and a person who has
been judged to be unable to handle his
or her financial affairs.
A conservator is appointed to manage
only the finances of the individual.
A conservator makes no personal
Guardians and conservators
One individual may be appointed a
conservator, to handle all of the
Another person might be appointed
guardian to handle all of the personal
Or, one person may be appointed as
guardian to handle both personal and
While a guardian is able to handle
both the personal and financial affairs
of an individual, a conservator
handles only the financial affairs.
Many individuals with disabilities have
both a conservator and a guardian
because the guardian did not want
to/or was unable to handle the
If a person is found to be
“partially disabled” about his
or her personal care and
financial affairs, a judge may
appoint a limited guardian
and/or a limited conservator
with limited responsibility.
• an individual might be able to live
independently but need assistance
signing a lease
• an individual might be able to
manage a weekly or monthly allowance
but not reliably pay bills
How long is the appointment?
A guardian or conservator may be
appointed with no limit to the
length of service.
However, the court may choose to
limit the appointment.
A limited guardian or limited
conservator may be appointed for
no more than 5 years.
If the limited guardianship
continues to be necessary
after 5 years, the already
named guardian or
conservator must petition
the court again.
When and Why?
In Kentucky, the legal age is 18.
This includes the legal age of individuals
Parents of children under the age of 18
do not need to file for guardianship.
However, once that child has reached
18, family members must file for
guardianship and/or conservatorship.
Many individuals with disabilities who
reach age 18 have the assistance of
friends or family members to help them
However, if an individual is not capable of
exercising all of the rights of an adult and
does not have the support to do so, he or
she may need a guardian and/or
Friends or family must then go to
court to determine disability and
have a guardian or conservator
Guardians and/or conservators may
be any person approved by the
court, including a friend or family
Usually a husband, wife, parent or
next-of-kin is appointed
guardian/conservator by the court. 29
The court will appoint someone who is 18
years of age or older who the court feels
will act in the best interests of the
If a separate guardian and conservator are
appointed, in many instances the
conservator is a bank who acts in
partnership with the guardian.
Revoking guardianship &
Guardianship and/or conservatorship
can be revoked. An individual or
anyone acting on his or her behalf
may ask the court at any time, to
remove the guardian and/or
Medical documentation of the treating
physician is necessary to revoke
An adult may have a petition
prepared designating someone as
guardian or conservator, should the
adult later become disabled.
This is called an Advance
appointment of guardian or
This requires a legal document that
is witnessed when signed.
It also requires a sworn affidavit by a
physician stating that the person is
likely to become disabled.
Guardian Ad Litem
A guardian ad litem is an attorney
who is appointed by the court to
advocate for a child.
A guardian ad litem is necessary
when there is a conflict between
parents and others or when there is
no one who adequately represents
the interests of the child.
In the case of a severely injured
child, the guardian ad litem might
protect the interests of the child by
filing a claim for insurance benefits
against anyone responsible for
causing the accident.
The duties of guardian ad litem include:
• legally advocating for the best
interests of the child
• instituting any legal action
• seeking special education benefits
• meeting notification requirements to
protects the child’s benefits
• attending hearings on behalf of the
• examining all records and meet with
medical personnel on behalf of the child 36
For individuals who are able
to handle their own personal
and financial affairs, but who
need some assistance, there
are other options to
Power of Attorney
A power of attorney is a limited right
given by one competent person to
• it requires a legal document that is
witnessed when signed
• it is limited to a specific act or a
specific set of acts
Specific acts might include:
• writing checks
• opening a back account
• signing legal documents
The power of attorney stops
when the individual revokes it or
becomes unable to handle
his/her own affairs.
Durable power of attorney
Durable power of attorney is a specific
document in which a competent
individual names another person to act
on his or her behalf when and if that
individual becomes unable to manage
his or her own affairs.
This is a legal document that requires a
witness when signed.
Health care surrogate
A health care surrogate is like a
power of attorney for medical issues.
Naming a health care surrogate
must be done in a legal document
and witnessed when signed.
It is limited.
It allows a designated adult to make
medical decisions for an individual.
A living will is a legal document that
states the intent of the individual if
faced with a terminal medical
This is a legal document that must
be witnessed when signed.
It is also called an advance
The living will sets clear guidelines
for families and health care
The document removes all
questions and doubt from family
members and health care
providers in regard to the
treatment wishes of the individual.
Any individual of sound mind and legal
age may execute a living will.
It must be entered into voluntarily.
It must be signed and witnessed by two
individuals, each of whom is 18 years of
age or older.
The directive includes specific
It may also include the name of a
person who is designated to make
decisions if the individual is
incapacitated and either in a terminal
condition or is permanently
If a person has not signed a living will,
a petition may be filed with the court to
have a guardian appointed, if necessary.
The guardian would make decisions
concerning life sustaining procedures or
end of life procedures.
An individual may designate a
representative payee to receive and
manage government checks such as
• social security benefits
• veteran’s benefits
The payee is appointed through the
government agency and does not
require a court determination.
The payee has the authority to manage
only the funds from the designated
For example if an individual lives in a
group home, he or she might want
social security checks to go directly to
the group home agency.
Or, an individual might want veteran’s
payments to go directly to a relative.
If the major concern is money, a
person may establish a trust fund.
A trust fund is a legal device that
allows one person, a trustee, to
manage property and money for the
benefit of another.
A trustee has no authority to make
personal decisions for the individual
who sets the trust.
Adult Protective Services
The state of Kentucky provides Adult
Protective Services .
Those eligible are individuals who need
assistance managing resources, carrying out
activities of daily living or protecting
themselves from abusive situations.
A court may order Protective Services if an
emergency arises and there is not time to
appoint a guardian.
A state worker may arrange for the
following under protective services:
• medical care
• home cleaning services
There may be a fee for the services.
A person does not have to accept
protective services unless ordered by
the court to do so. 51
By law, any person having
reasonable cause to suspect that
an adult has suffered abuse,
neglect or exploitation, must
report to Adult Protective
The caller does not have to reveal
his or her name.
Protection and Advocacy
Kentucky Protection and Advocacy is an
independent state agency.
Staff includes professional advocates and
They work to protect the rights of
individuals with disabilities.
Contact them at 1-800-372-2988.
Get professional assistance
There are many things to think about
when providing assistance and care for a
person with a disability who is unable to
provide their own care.
Don’t offer advice…..get professional legal
advice from an attorney or from staff at
Kentucky Protection and Advocacy.
You have completed this module of
the ABI Waiver Training.
Please give your completed test to