When you get a mild traumatic brain injury at work, it can heal enough to allow you to manage your case and your settlement. But more serious brain injuries, especially severe ones, may leave an employee unable to make settlement decisions or properly manage settlement money. 

Luckily, South Carolina law provides a legal proceeding to protect seriously brain-injured workers’ comp clients. Obtaining these court-appointed protective relationships can require two different proceedings in Probate Court: 

  • Guardianship, allowing the guardian to make legal decisions on behalf of the employee, including settlement decisions. 
  • Conservatorship, allowing a conservator to both make legal decisions like a guardian, and also manage settlement money.

Although these protectors give necessary protection to vulnerable employees, the additional court proceedings pile on more legal complexity for a family that’s already crippled with the burden of lost income and intense medical treatment.

Let us give you a helping hand. 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 workers’ comp attorney.

Here’s how guardians and conservators get appointed in a South Carolina workers’ comp severe brain injury case. 

Guardianship and Conservatorship Appointment Process in  South Carolina Workers’ Comp Cases

While they are separate legal proceedings, both guardianship and conservatorship cases require similar filings and proceedings in Probate Court:  

  1. Start with a petition. This filing reveals why the appointment is needed, including the cause of the injury, the employee’s family background, whether the brain injury prevents the employee from making certain decisions, and why the petitioner should be appointed.
  2. A legal strategy to speed up the case: filing a notarized report from a treating doctor with the petition. To confirm the brain-injured employee’s incapacity to make decisions, you need a report from a treating doctor. It needs to be in the proper legal format. 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. You don’t have to wait for the Probate Court to name its own medical examiner, for the examiner to get to the hospital or facility where the employee resides to make the required examination, and then file the report. 
  3. Serve the filed petition on all “interested persons” as required by law. South Carolina law defines “interested persons,” which can include the employee’s family. It also requires service on the severely disabled brain injury employee. The petition must be served the right way or your case will be delayed or even denied. 
  4. Appoint a lawyer for the employee. The law requires a separate lawyer to represent the employee in Probate Court, even if you’ve hired a lawyer for the workers’ comp case. To move this process quicker and get the employee a good lawyer for this aspect of the case, we can propose one. That lawyer visits the employee to confirm they remain unable to make legal decisions. If so, the lawyer can file a motion to stop representing the employee and instead be appointed the employee’s “guardian ad litem.” That means the lawyer protects the employee’s interest in the proceeding. On the other hand, if you don’t get a lawyer for the employee 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.
  5. If all “interested parties” agree on who should be appointed, and all the legal documents are done properly, you can be appointed quickly without a hearing. This can occur shortly after the guardian ad litem files a report indicating a hearing would do no good. 

Some settlements may be so large you need a bank to serve as the conservator. If you’ve hired us, as we manage the probate court appointments, we also strategize and work on a good South Carolina workers’ comp brain injury settlement, which may require extensive legal analysis to find the right type of settlement. To get your questions answered about these complex, high-stakes 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 Employee?

South Carolina workers' compensation law requires legal approval by the South Carolina Workers’ Compensation Commission for all settlements, regardless of whether a guardian or conservator is involved. We educate all our clients, including guardians and conservators, on the workers’ comp settlement process, including the steps to final approval.

A special factor is if the employee is on Social Security disability, Medicare, or Medicaid.  Some employees who get a brain injury on the job get government benefits. A workers’ comp settlement can affect eligibility for these programs. It can reduce or even wipe out a monthly  Social Security disability check. As such, we insist on a clause in all workers’ comp settlements that’s designed to protect the disability check amount.

Because employees can’t afford to lose Medicare or Medicaid, we have clients meet with an attorney who handles benefit eligibility cases. These lawyers help you find a way to get the settlement and keep Medicare or Medicaid. For Medicare recipients, it may be necessary to consider a Medicare Set-Aside Trust for certain workers’ comp settlements, or you risk forfeiting Medicare rights to treatment.

You Can’t Afford to Be an Amateur Here—Get a Professional

Too much is riding on this case to make a rookie mistake. In fact, South Carolina workers’ comp severe brain injury cases offer some of the most extensive benefits in comp cases, including a potentially large money settlement. Get help from an experienced South Carolina workers’ comp attorney for your South Carolina brain injury accident case. Call toll-free at 888-230-1841 to get your questions answered.

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Rob Usry
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Rob is a Spartanburg personal injury lawyer. Rob also practices as a workers' compensation attorney.