Sleep Better at Night With Answers to Your Top Questions on Virginia Brain Injury Claims

Experiencing something as traumatic as an accident in Chesterfield County can leave your head spinning with questions and uncertainty. Get the answers you need fast in this FAQ series from Richmond brain injury attorney Kevin Mottley.

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  • How do I remove a power of attorney (an attorney-in-fact)?

    If you are a person who is entitled to obtain information from  an agent (an attorney-in-fact) and the agent fails or refuses to give that information to you, this is a basis for filing a complaint in circuit court to remove the agent.

    In addition, if you are the principal, a close relative of the principal, someone entitled to make health care decisions for the principal, the principal’s caregiver, a guardian, conservator, representative of the estate of a deceased principal, a person who is asked to accept a power of attorney, or a beneficiary of a principal’s estate, then you may petition a circuit court to review the agent’s conduct and to grant appropriate relief.  If it be shown that the agent has breached his or her duties as attorney-in-fact, then the court may order the removal of the agent.

  • What is undue influence?

    To raise a presumption of undue influence of a testator in making a will, the evidence must show three things.  First, that the testator was “enfeebled in mind” when the will was executed.  Second, that someone benefitted by the will stood in a position of trust with respect to the testator or that the testator depended upon the person.  Third, that the testator had previously expressed an intention to make a contrary disposition of his or her property.

  • What are the grounds for contesting a will in Virginia?

    Grounds for contesting a will under Virginia law include the following:

    • the formal requirements for making a will under Virginia law were not performed properly, rendering the document invalid as a will,
    • the document was not made with “testamentary intent,” meaning that the document sought to be admitted to probate as the decedent’s will was not intended by the decedent to be his or her last will,
    • the person who made the will lacked testamentary capacity to make the will,
    • the person who made the will was the victim of undue influence or duress at the hands of someone who is benefitted by the will, and
    • fraud.

  • What degree of testamentary capacity is required under Virginia law to make a will?

    You must understand that showing someone lacked testamentary capacity to make a will under Virginia law is exceedingly difficult.  A person making this claim must show, by strong evidence, that the person making the will did not have mind enough to understand the nature of the business in which he is engaged, to recollect the property being disposed of, the objects of his bounty, or the manner in which he wishes to distribute his property. 

    It is not enough to show that the person did not have the same quality of mind that he previously had, that the mind is debilitated, or that the testator is eccentric.  Just because someone lacks the mental strength and qualities to transact business affairs does not mean they cannot make a will.

  • How do you contest a will in Virginia?

    There are two ways under Virginia law to contest a will.  First, within 6 months after the clerk of the court enters the order that probates the will, any interested person may appeal that order to the circuit court.  The issue in these cases is whether the document admitted to probate actually is the decedent’s will.

    The second way to contest a will in Virginia is to file a complaint in circuit court seeking to impeach (challenge) the will as being the will of the decedent.  In such a case, the court is required by statute to empanel a jury to hear the case.  The sole issue for the jury to decide is whether the will that has been offered is, in fact, the will of the decedent.  The jury may also decide that some other paper produced at the trial is the actual will of the decedent.

  • What is “anoxia” and “hypoxia”?

    When blood flow to the brain is depleted of oxygen, then irreversible brain injury can occur from anoxia or hypoxia.  Anoxia is when the brain receives no oxygen.  Hypoxia is when the brain receives reduced oxygen.  This can occur within a short period of time, like minutes.  It can be caused by medical emergencies like heart attacks or respiratory failure.  If this type of brain injury happens, the consequences can be severe.

  • What is a “deceleration injury” (diffuse axonal injury)?

    This sort of injury to the brain occurs when sudden movement of the skull through space (i.e., acceleration) occurs.  When the skull stops moving, for whatever reason (say, for instance, it hits something or is suddenly forced to move in a different direction), then the gelatinous brain inside the hard skull continues to move inside the skull.  When this happens, an injury to the brain occurs.  This is often referred to as “diffuse axonal shearing” because, when the brain is slammed back and forth in the skull, it is compressed and stretched.  The fragile “axons”, which are part of the nerve cells in the brain and spinal cord, are also compressed and stretched.  When this happens, they are injured.  This is called “axonal shearing” and, when this happens, the brain cell dies.

  • What is the Ranchos Los Amigos Scale?

    Like the Glasgow Coma Scale, the Ranchos Los Amigos Scale is a system used by medical professionals to evaluate victims of traumatic brain injuries, and is based on cognitive and behavioral presentations as victims emerge from a coma.  The scale runs from 1 to 8, with 1 being a person who is non-responsive and has no responsive cognitive functioning, while a score of 8 indicates appropriate and purposeful functioning.  Victims of traumatic brain injury will progress up the scale as they recover.  Recovery for victims is different from person to person, and some victims may plateau at a certain level on the scale.

  • What is the Glasgow Coma Scale?

    One tool used by medical professionals is the Glasgow Coma Scale.  It is a 15-point scale used by all sorts of medical professionals to evaluate a patient for level of consciousness and brain function following a head injury.  A score of 13-15 in a patient with a head injury is generally considered to show a mild or minor brain injury classification.  A score of 9 to 12 is moderate.  A score below 9 indicates a severe brain injury.

  • What are the signs and symptoms of a concussion?

    Symptoms of concussion are generally organized into four groups: (1) thinking/remembering symptoms, (2) physical symptoms, (3) emotional/mood symptoms, and (4) sleep symptoms.

    A person suffering from a concussion may have difficulty thinking clearly, concentrating, or remembering new information.  They may describe a feeling of being “slowed down” in their thinking.  I have seen this in clients as they sit in my office trying to describe things to me.

    As for physical symptoms, the person may experience headaches, fuzzy or blurry vision, nausea or vomiting, dizziness, sensitivity to light or noise, balance problems, or a feeling of fatigue or lack of energy.

    Emotional and mood symptoms include irritability, sadness and depression, a tendency to be more emotional than normal, and a feeling of nervousness or anxiety.

    A person’s sleep may be affected as well.  The person may sleep more than usual or less than usual.  Also, they may have difficulty falling asleep.

    It is important to understand that some of these symptoms may not appear right away.  In fact, some of them may not be noticed for weeks or even months after an injury when the person resumes his or her daily life activities (work, school, etc.).  Because of this time delay, the victim of a concussion may not admit they’re having problems and may not understand why they’re having difficulties.  This, of course, leads to more anxiety.  Also, family, friends and coworkers may not notice the problems and symptoms, as the person appears “normal.”