OhioBWC - Basics: (Policy library) - File

Policy and Procedure Name:

Custody, Guardianship, Power of Attorney and Incapacitation

Policy #:


Code/Rule Reference:

The Ohio Constitution, Article 1, Section 1 and Section 16; R.C. 1337.22(E); R.C. 4123.89; O.A.C. 4123-3-08; O.A.C. 4123-3-10.

Effective Date:



Ann M. Shannon, Chief of Claims Policy and Support


Claims Policy


Policy # CP-03-06, effective 05/24/17


Previous versions of this policy are available upon request






The purpose of this policy is to provide general guidance relating to the legal concepts of custody, guardianship, power of attorney (POA) and incapacitation. 




This policy applies to claim services staff.




Claimant: One who asserts a right, demand or claim for workers’ compensation benefits.


Conservator:  A guardian appointed by a probate court at the request of a mentally competent adult who is physically unable to manage some aspects of life.  Powers of the Conservator are specified by the requestor of the conservatorship and set forth in the probate court order.


Custody: Having the charge, care and control of a person. Generally, a parent is  presumed a natural custodian of a child. However, even if a parent is alive, courts can appoint another person (usually a relative) as a legal custodian of a child. As a legal custodian, that person can generally sign contact letters or change banking information on behalf of a child.


Guardian: A person who has a court order and is charged with the duty of authorizing medical care, living arrangements, and/or managing the financial affairs of another person because the person is of minor age, or is incompetent and considered incapable of administering his or her own affairs. Guardianship of the person means they are responsible for the medical and/or living arrangements for the individual. Guardianship of the estate means they see to the person’s financial affairs.

Court orders can encompass either or both types of guardianship. The authority granted by the court order can be limited or unlimited (e.g.  financial only/medical needs only/all encompassing(medical and financial). The guardian may be a conservator of that individual’s needs.


Generally speaking, a custodial parent is a presumed guardian of a minor and a spouse is a presumed next of kin for a person incapable of acting on his/her own behalf.


A family member who is next of kin can make life sustaining medical decisions on behalf of an incapacitated individual, but cannot make financial decisions on their behalf. 


Incapacitated: The inability to make medical decisions, manage property or business affairs because the individual has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.


POA: A written document signed by the claimant that conveys the legal authority to act on their behalf to another person. Generally, the document conveys authority to sign on their behalf, attend to financial matters and/or make medical decisions or living arrangements on behalf of the claimant.  This legal authority can be limited or unlimited (e.g.  financial only/medical needs only/all encompassing(medical and financial).

A durable power of attorney means that the authority conveyed is either triggered by the inability of the individual to act on their own behalf or it survives their incompetency and is in effect until the individual dies or a court order replaces it. Unless specified in the document, most POA’s in Ohio are considered durable.




A.     It is the policy of BWC to provide a claimant with all legal rights afforded by law unless the authority to exercise such rights has been conveyed to another via statute, court order or a legally binding written instrument executed by the claimant (e.g., a POA).


B.     It is the policy of BWC that a minor who is injured or suffers an occupational disease in the course and scope of employment has the legal capacity to file a claim directly with BWC without the assistance of a parent or guardian. However, BWC may only pay compensation to the legal guardian of the minor.


C.    It is the policy of BWC that if BWC or the Industrial Commission determines that it is in the best interest of the claimant that a guardian be appointed to receive benefits payable, payment shall be withheld until such guardian is appointed.


D.    It is the policy of BWC, in the event a claimant is unable to complete the first report of injury (FROI) due to physical or mental disability, to allow the FROI to be completed and filed by the claimant’s spouse, next friend, guardian or employer.




A.     General Claim Note and Documentation Requirements

1.     BWC staff shall refer to the Standard Claim File Documentation and Altered Documents policy and procedure for claim note and documentation requirements; and

2.     Shall follow any other specific instructions for claim notes and documentation included in this procedure.


B.     Legal Right to Act on Behalf of Another

1.     If claims services staff receive documentation or otherwise learn that another person may have some legal right to act on behalf of a claimant, claim services staff must:

a.     Contact the claimant and/or the person claiming such rights and request the supporting legal documentation if it’s not already in the claim file;

b.     Ensure the submitted documentation is imaged into the claim file;

c.      Staff with the local BWC attorney to determine what specific rights the document(s) convey; and,

d.     Document the results of the staffing with the BWC attorney noting the following:

i.       The specific authority the legal document provides (e.g. financial only/medical needs only/all encompassing(medical and financial)

ii.      Name of the person(s) given the legal authorization.

e.     If the authority received is limited or vague, claims services staff must attempt to secure clarification and again consult with a BWC attorney.

2.     In general, documentation addressing the legal right one may have to act on behalf of another person may include:

a.     Birth certificates or other documents relating to custody; 

b.     Court orders granting guardianship of the person or the estate or a conservatorship;

c.      Power of Attorney;

d.     Other documents as determined necessary by the situation.


C.    Entering Information into the Claims Management System

1.     Claims services staff shall ensure any verified guardian:

a.     Is entered into the claims management system as a customer with the appropriate relationship identified; and

b.     Entered into the claim as a participant.

2.     Claims services staff may refer to the CoreSuite Training Manual – Investigation and Documentation for more information.


D.    FROI Filed By a Minor Child

1.     Claims services staff shall accept a FROI filed by a minor child on his or her own behalf.

2.     If there is any conflict or question regarding the minor child/claimant’s continued capacity to act on his or her own behalf, claim services staff shall consult with the BWC attorney.

3.     Claims staff shall pay compensation to the minor claimant’s legal guardian as provided by statute.


E.     Incapacitation

1.     If claims services staff receives a guardianship document or POA signed by the claimant, or has reason to believe that a claimant may be incapacitated as defined by this policy, claim services staff shall contact the local BWC attorney to determine what, if any, action needs to be taken relating to the claim.

2.     Claims services staff shall not assume that the physical inability of a claimant to sign a document, by itself, establishes incapacity and the need of a guardian. See the Signature Requirements on Applications policy and procedure for additional information.

3.     After staffing with a BWC attorney, BWC may withhold payment of compensation until a guardian is appointed if the BWC attorney determines that this action is appropriate.