Guardianship & Power of Attorney

When a loved one has locked-in syndrome, they usually remain fully aware, even when they cannot speak or move. That awareness shapes every legal decision ahead. Many patients can still grant a power of attorney through a reliable communication method. When that isn’t possible, guardianship offers a path. The right legal authority protects their voice, their care, and their rights.

What Guardianship and Powers of Attorney Do

When a loved one can no longer speak or sign their name, families often discover that love and family ties are not enough to act on their behalf. Banks, insurers, and care teams need to know who holds legal authority. Three tools are most common: a financial power of attorney, a healthcare power of attorney, and guardianship. Each covers a different part of life, and understanding how they differ helps families choose the path that best honors their loved one’s voice.

Powers of Attorney

A power of attorney is a document in which a person names someone they trust, called an agent, to act on their behalf. Most families encounter two kinds.

• A financial power of attorney allows the agent to pay bills, manage bank accounts, handle property, and apply for benefits. Whether it also covers legal affairs, such as pursuing a claim, depends on the specific powers the document grants.
• A healthcare power of attorney, sometimes called a healthcare proxy or surrogate designation, allows the agent to make medical decisions when the patient cannot communicate their own. Even then, the agent’s role is to carry out the patient’s wishes, not replace them.

Guardianship

Guardianship is different. It is a court process in which a judge appoints someone to make decisions for a person who cannot make or communicate them and/or has no valid documents in place. Because it involves hearings, ongoing court oversight, and public records, guardianship is generally considered a last resort. Many courts can limit a guardian’s authority to specific areas, leaving the patient with every right they are still able to exercise.

The names and requirements for these tools vary from state to state. Before taking any steps, look for documents your loved one may have signed before their stroke. An existing proxy or advance directive can spare the family a great deal of uncertainty.

Your Loved One May Still Be the Decision-Maker

Locked-in syndrome is most commonly caused by a brainstem stroke. The stroke interrupts the signals between brain and body, leaving a person unable to move or speak. In most cases, it leaves their thoughts, memories, and awareness intact. Many people with locked-in syndrome communicate through blinking or eye movement and retain awareness and the capacity to make decisions.

This shapes how families should approach legal authority. As stated in a paper in Neuroethics, the barrier to medical decision-making is severe difficulty communicating, not a loss of cognitive ability. So the first question is not who should take over for your loved one. It is whether your loved one can make this decision themselves.

The answer often depends on how well they can communicate. A yes-or-no signal has been considered enough to confirm consent for simple medical choices, but not for major ones, such as naming someone to manage their finances or health care. The following can give your loved one a fuller voice:

• Alphabet boards
• Eye-tracking devices
• Brain-computer interfaces
• Other communication tools

A speech-language pathologist can help find the method that works best.

A physician can also assess whether your loved one understands the decision in front of them. Capacity is often considered one decision at a time. A person who needs help with daily tasks could still be fully able to choose who they trust to act for them.

Throughout this process, speak to your loved one directly, not around them. Ask who they want to serve and what they want that person to do. Their answers belong at the center of every document and every decision that follows.

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Authority to Pursue a Claim on Your Loved One’s Behalf

Sometimes families begin to wonder whether a stroke could have been recognized or treated sooner. If those questions arise, it helps to know that any legal claim must be brought by someone with the authority to do so. The form of authority in place shapes who can act and how the case moves forward.

• When your loved one can direct their own case. A person with locked-in syndrome who can communicate reliably may be able to work with an attorney directly. They can share their account, make decisions about the case, and approve important steps through their communication method. Careful documentation of how each decision was communicated helps protect those choices.
• When an agent holds a power of attorney. An agent may be able to pursue a claim if the document grants authority over legal claims or litigation. Not every power of attorney includes this. An attorney can review the document and explain what it allows.
• When a guardian has been appointed. A guardian often needs court approval to file a claim, and in some situations a court may appoint a separate representative for the litigation itself. When a case resolves, courts commonly review settlements involving a person under guardianship to confirm the outcome serves that person’s needs. How funds are held can also affect eligibility for benefits such as Medicaid, so planning for this early is wise.

Whatever form of authority applies, your loved one’s voice should continue to guide the process wherever possible.

Legal rights can be affected by timing, so if you have questions about your loved one’s care, an early conversation with an attorney from our firm can help you understand your options.

Steps Families Can Take Now

The early weeks after a stroke or locked-in syndrome diagnosis can feel overwhelming, and legal questions often arrive at the same time as medical ones. A few calm, practical steps can bring clarity, prevent conflict, and keep your loved one’s wishes at the center of every decision.

• Look for existing documents. Search for any advance directive, healthcare proxy, or power of attorney your loved one signed before their stroke. Check home files, safe deposit boxes, and records kept by a family attorney or primary care physician.
• Talk with a social worker. Social workers can explain what documentation the facility needs and help connect you with resources. They can also help coordinate the capacity assessments and communication support described above.
• Help your loved one establish a reliable way to communicate. Work with the care team to find a consistent method, whether blinking, an alphabet board, or an eye-tracking device. A dependable system allows your loved one to take part in decisions and may allow them to sign documents themselves.
• Include your loved one in family conversations. Hold discussions about decision-making at the bedside, with your loved one present and invited to respond. When everyone hears the same wishes at the same time, disagreements become less likely.
• Keep a written log. Record dates, names, decisions, and how your loved one communicated each choice. This record helps keep caregivers consistent and can be valuable if questions about care or authority arise later.
• Speak with an attorney early. An attorney can explain which documents fit your family’s situation and whether guardianship may be needed. If there are questions about how the stroke was diagnosed or treated, an early conversation can also help protect your loved one’s rights.

The Newsome Law team is here for you whenever you are ready to speak.

Read more about Rich Newsome

Rich Newsome

Catastrophic Injury Locked-In Syndrome Attorney

Rich Newsome is a dedicated attorney specializing in catastrophic injury and medical malpractice cases. With over 25 years of experience, she is committed to advocating for victims and their families, ensuring they receive the justice and compensation they deserve.