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Get The Facts

Legal issues: an introduction

Information Services
 
 

Justice/Legal/Advocacy

Legal issues: an introduction

Apart from the many physical and cognitive effects to deal with after a brain injury, there can also be many legal issues to consider.

Because every person's situation is unique, and because the law is different in each state and country, it is important to consult a solicitor to obtain legal advice. The following is a general guide to the legal issues surrounding brain disorders such as traumatic brain injury, stroke, brain tumours, Alzheimer's disease,  meningitis and encephalitis. 

 

Keep detailed records

Keep a copy of all reports, print copies of relevant emails, and make sure you take notes after conversations. At some point in the future you may need to verify costs for an insurance company or decide to pursue a claim for compensation after a traumatic brain injury. 

 

Making a compensation claim

Legal action can be a very long process. It helps to initially contact solicitors who specialize in traumatic brain injury (TBI), and can advise on whether it is worth proceeding with legal action. In Australia (and many other countries) you generally you need to establish that the other party was negligent, this caused you suffering, and that this suffering will continue into the future. 

 

There are time limits for beginning this process that vary according to each state and country. If successful, compensation in most cases is paid by an insurance company and covers pain and suffering, loss of income, rehabilitation, home modifications, medications and other costs caused by the injury.

 

The costs of making a compensation claim are normally met by your solicitor, who will only take a fee if the case is successful. Your nearest Brain Injury Association should have a list of solicitors who specialize in TBI and other brain disorders. 

 

In Australia, the commencement of the National Disability Insurance Scheme will have a direct impact on claims for compensation. It is based on a no-fault insurance model, so in many cases people with an injury will receive financial support without having to pursue compensation from the party claimed to be at fault. 

 

Guardianship

When a brain injury has left a person with a diminished capacity to make decisions, it is necessary to establish a power of attorney or guardian - in Australia and many other countries, this process allows  a carer, family member, friend or a legally appointed third person to take over responsibilities on the person's behalf. It is necessary to get details of the person's assets, bank accounts, loans and important documents (e.g. wills, house titles, birth and marriage certificates, insurance policies, superannuation documents). Your Brain Injury Association can advise you on how to start this process. 

 

Making a Will

A Will is one of the most important documents most of us will ever sign. Anyone can make a Will, as long as they are over eighteen years of age and are judged to have been full capable of making this Will at the time.

 

A Will should always be prepared through a professional service to avoid potential lengthy court proceedings and possibly being judged ineffective. The Executor of a Will is the person appointed to attend to the administration of the estate. They should have the necessary knowledge, experience and judgment to perform the task.

  

Marriage

A person with a disability is subject to the same marriage laws as any other person. A person can marry provided that they have the ability to understand the nature and effect of the marriage ceremony at the time of the ceremony.

 

Entering a contract

In most legal systems, a person entering into a contract must have the ability to comprehend the nature of the agreement being entered into. If a person with a brain injury has a cognitive disability and enters into a contract, the obligations entered into in the contract may be questioned. Any queries regarding the nature of a contract or a person's rights concerning a signed contract should be taken up with a solicitor or other legal professional.

  

Disability legislation

The law is a set of principles and guidelines designed to protect and give citizens the freedom to live without fear of intrusion by others. Many countries have specific legislation concerning disabilities that guarantee:

  • Respect for human worth and dignity
  • The right to physical, social, emotional and intellectual development
  • Access to services that support obtaining a reasonable quality of life
  • The right to not be discriminated against due to a disability.

 

Children with disabilities

The right to an education is enshrined in legislation in most countries. In addition, many countries also legislate for "inclusive education" which ensures the specific needs of a child with a disability will be met in a classroom community.

References and further information

 

 

 

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