Mild traumatic brain injuries can clear up enough to allow the victim to manage their settlement. But severe brain injuries from South Carolina accidents may leave the survivor unable to make legal decisions or responsibly handle settlement money.
Luckily, South Carolina law provides a legal proceeding to protect survivors from themselves. It can require two different filings in Probate Court to legally establish these protective relationships through court appointments:
- Guardianship. This court appointment allows the court-appointed guardian to make legal decisions for the survivor, including settlement decisions.
- Conservatorship. This court appointment gives the conservator power to settle the case just like a guardian, but also gives the conservator the ability to manage settlement money.
While it’s a needed protection for vulnerable victims, it adds more layers of legal complexity to an already overwhelming case.
Let us take that burden off you to get the right person appointed for this critical job. Call toll-free at 888-230-1841 or fill out a Get Help Now Form to get your questions answered in a FREE, NO PRESSURE strategy session with a Spartanburg, South Carolina personal injury attorney.
Here are the basics of how guardians and conservators work in a South Carolina brain injury accident case.
Guardianship and Conservatorship Process for South Carolina Brain Injury Accident Settlements
While they are separate legal proceedings, both guardian and conservator appointments require similar filings and proceedings in the Probate Court:
- Start by filing a petition. This formal legal pleading gives the basis for needing the court appointment, including the cause of the injury, the survivor’s family background, whether the brain injury prevents the survivor from making certain decisions, and why the petitioner is the best person for the job.
- A critical legal maneuver that can dramatically speed up the case. filing a notarized report from a medical examiner with the petition. To verify the brain injury survivor’s inability to make decisions, you need a note from a treating doctor in the proper legal form. If it’s filed with the petition, the Probate Court can appoint that doctor as the medical examiner for the case. Doing that spares you an extra legal proceeding and precious time waiting for the Probate Court to appoint a medical examiner, for the examiner to get to the hospital or facility where the victim resides to make the required examination, then file a report.
- After filing the petition, serve it on all “interested persons” as required by law. The law defines “interested persons,” which can include the victim’s family. Shockingly, it also includes the severely disabled brain injury victim. It has to be served the right way or your case will be delayed.
- Appoint a lawyer for the victim. The law requires a separate lawyer to represent the victim in the probate proceeding, even if you’ve hired a lawyer for the victim in the accident case. To help speed this up and ensure the victim has a good lawyer for this aspect of the case, we can propose one. That lawyer visits the victim to verify whether they remain unable to make legal decisions. If so, the lawyer can move to get out of the case and be appointed the victim’s “guardian ad litem.” That means the lawyer protects the victim’s interest in the proceeding. If you don’t get a lawyer for the victim immediately, you can incur more delay. The law requires the court to wait 30 days after you serve the petition to appoint a guardian ad litem.
- If everyone agrees on who should be appointed, and all the paperwork is done right, you can be appointed quickly without a hearing. This can occur when the guardian ad litem files a report indicating a hearing would do no good.
If you’ve hired us, we’re not just doing this part of the case. We’re working behind the scenes as much as possible to build the case for a good South Carolina brain injury settlement. To get your questions answered about these complicated cases, call toll-free at 888-230-1841.
Now let’s flash forward to the end of the case.
How Does a Settlement Get Paid to a Severely Brain Damaged South Carolina Accident Victim?
South Carolina law requires court approval for brain injury accident settlements with a guardian or conservator if the victim gets over $25,000.00 after all fees, costs, and medical bills are paid. Some settlements may be so large you need a bank to serve as the conservator.
A Special Factor if the Victim Is on Medicare or Medicaid
Some brain injury victims get these government benefits through Social Security disability. Settlements can affect eligibility for these programs. Because victims can’t afford to lose these benefits, we have clients meet with an attorney who handles government benefit eligibility cases. These lawyers help you find a way to get the settlement and keep Medicare or Medicaid.
This Is Hard, but It’s Got to Be Done Right—You Need Help
It’s just too much to ask for you to manage the medical care and personal affairs of a brain injury victim, then add a personal injury lawyer, probate lawyer, and government benefits eligibility lawyer on top of it. You are called to protect the legal rights of a helpless brain injury victim the same way you do with their medical care: by using trained professionals with experience in the field. Get guidance from an experienced South Carolina personal injury attorney for your South Carolina brain injury accident case. Call toll-free at 888-230-1841 to get your questions answered.