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Ask An Attorney

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My son suffered a traumatic brain injury while he was working. He was treated in North Dakota initially, and then transferred to a facility out of state that specializes in traumatic brain injuries. I have been covering his monthly expenses; however, I am financially unable to continue to do so. I’m also not able to make any decisions relating to his long-term medical care. Further, I believe it’s necessary to pursue a personal injury claim on his behalf because of the significant injuries that he suffered. At this point his communication is limited, and his cognitive abilities have been severely impacted. I need to know how I can obtain authority to make some of these decisions on his behalf.

"In this case it’s likely an emergency and permanent guardianship would be necessary; however, I do need additional facts such as if he resided in North Dakota prior to the injury, if he is married, has adult children, or has ever executed a POA or HCD."

What is the relevance of that information?

"We need to first establish if he was a resident of North Dakota to determine if an action can be brought here. And of course if he executed a POA or HCD prior to his injury, those would be the controlling documents that would indicate who has the authority to act on his behalf. Further, if he has a wife or adult children, they would have priority over the mother in a guardianship action."

Does that mean if he has a wife or adult children that his mom wouldn’t be able act as his guardian?

"Possibly-- these situations are extremely fact specific, but it’s likely that if the wife and/or adult children desired to be the guardian, they would have priority over the mother. I’m assuming the potential issues I mentioned do not apply here."

What exactly is an emergency guardianship?

"It’s a way someone can be appointed to act on behalf of an incapacitated individual if no one otherwise has authority to act on their behalf. An individual applying to be a guardian has to first file a petition with the court. This petition must include quite a bit of information, and must comply with the statute. Information such as who the proposed ward and guardian are, why an emergency exists, and what powers the proposed guardian is requesting are just some of the things required."

What do you mean by powers?

"The proposed guardian can request the power to make medical and legal decisions, as well as authority to handle the financial affairs on behalf of the proposed ward. In this case the mom would probably want to request all three in consideration of the concerns she mentioned."

So she has to request this from the court?

"Yes, with the authority from the court she would be able to start paying her son’s bills from his account and taking care of his affairs. But again, an emergency guardianship is only temporary."

So how long does the emergency guardianship last if she is appointed?

"The statute recently changed so now an emergency guardian’s authority cannot exceed 60 days. Like I mentioned earlier, once the court has a chance to review the petition and proposed orders, they will appoint the emergency guardian if they deem an emergency does in fact exist. Also, with the new requirements of the statute, a hearing must now be held within 5 days of the appointment so the court can determine the appropriateness of the appointment."

Since the mom indicated that the son is in the hospital, he won’t be able to attend the hearing right?

"Correct; which is why it is also required by statute that an attorney be appointed for the proposed ward when an emergency guardian is appointed. The attorney is appointed to represent the best interests of the proposed ward. They will review the petition and supporting documents, contact the proposed ward if possible, and attend the hearing."

This sounds like quite the process.

"Yes, it is and keep in mind what I have been explaining is just the process for an emergency guardianship, which will not extend past the 60 days. There are additional requirements for a permanent guardianship, which the mom in this case will also want to establish within her time as an emergency guardian. The emergency guardianship, however, will at least allow her to take care of some of the initial financial, legal, and medical matters for her son."

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