Does a person with TBI have any legal rights to choose what they want with their money and where and how they want to live?
Just because an individual has sustained a traumatic brain injury does not render him or her incompetent to make important decisions regarding property, assets, and living arrangements. Until a court of law — after a judicial proceeding — determines that an individual is not competent to make decisions regarding financial affairs and lifestyle, the person is presumed to be competent and act accordingly.
The judicial system is very reluctant to deprive any individual of the freedom to make important financial and personal decisions. The Guardianship Laws in most states control the powers and restrictions imposed upon an individual’s ability to make personal decisions. These laws vary from state to state and therefore it is difficult to answer your question with specificity.
The laws of guardianship generally endeavor to impose the “least restrictive alternative.” That means that if a court determines that an individual is in need of a guardian, that guardian’s authority is explicitly limited and tailored to address only the specific financial or personal needs for which that individual needs assistance, while retaining freedom in all other respects to make his own personal decisions.
The court will focus its determination on assessing the functional limitations that an individual may have, which may impair his ability to provide for personal needs, or financial or property management. The determination is not whether an individual suffers from a particular disease or medical condition, but how that condition affects or limits that person’s ability to function. The court will examine an individual’s abilities as well as limitations and then fashion a remedy that only grants a guardian those powers that are necessary to assist the incapacitated person, while allowing the person the greatest ability to function independently and maintain the right to self-determination as constrained by that person’s ability to appreciate and understand his or her own limitations. The court will also look at reasonable alternatives that may be available to assist the individual without the necessity of the appointment of a guardian.
In all court proceedings, the individual’s legal rights are protected and the person for whom a guardianship is sought is entitled to have their own legal representative whose sole function is to represent that person and his or her desires.
About the author: Shana De Caro, Esq.
Shana De Caro, Esq. is partner at De Caro & Kaplen, LLP. Ms. De Caro serves on the board of directors for both the Brain Injury Association of America and the New York Academy of Trial Lawyers. She is first vice president of the American Academy of Brain Injury Attorneys and serves as secretary of the Civil Justice Foundation.
Comments (27)
Please remember, we are not able to give medical or legal advice. If you have medical concerns, please consult your doctor. All posted comments are the views and opinions of the poster only.
Anonymous replied on Permalink
we are three women living with TBI in our family and lost the civil and property rights and no land law is helping us to restore the rights and we are living in crisis since 22 years how can you help us
Anonymous replied on Permalink
I worked for the Florida Court for 4 years and was fired. I have a severe traumatic brain injury.I filled late with the EEOC.
I could not find an attorney to help. I was told by 2 attorneys that attorneys would be worried about how they would be treated in future cases. I had to go to the trial by myself, with no knowledge of the law or even capable to learn or understand the laws. It was me against the court. Guess who the judge found in favor of? Yes himself the court. I asked for an impartial jury but was denied that. I know there have been a lot of brain injured in court cases but none against the court itself. Also cases against the government.I was told it is a case of great importance to show there is still justice in our courts. Plus 60 million disabled Americans need to know they are protected. Can you help? Hapdoggm -at- gmail
Anonymous replied on Permalink
I am so overwhelmed by what has been aloud to happen. To much power given by attorneys. Lack of supervision by courts. His sister has broken every rule to the greatest extreme. Lawyers backing her to the point they are doing sworn deposition lying and trying to make me look horrible. I have proof I am just not educated like a lawyer. She is temporary because she didn't disclose me living with him. She moved him out of state last in January. Court just found out then she used me as her excuse like I am hurting him. I haven't had any contact for 4 months. With all her accusations I am scared to try. I do know she is lying to him saying I abandoned him sold his things and gave up our house. Thats the only way he would go. He made it clear to his lawyer he didn't want to go with sister to Indiana. So she stopped our contact makes me look bad. Disobeying every power she don't even legally have and gets her way. He is back were she wants him. I am confused though because the lawyers in sister say how good he is doing getting almost all memories back but judge says he can't destengush approving or contesting conservatorship so he don't need attend
Anonymous replied on Permalink
I a legal guardian to.my 38 year old tbi son for 6 years he thinks he can be his own legal guardian but as I see he cant does he have the right to request be his own legal guardian he not even ready has not shown me responsability
Lorna Shores replied on Permalink
My Nephew was in a motor cycle accident and was unconscious for 2 months. he now is just resuming consciousness and is incoherent frequently and confused and agitated. He has always been close to his mother and two sisters. His wife has never gotten along with his family and became angry when he responded better to his mother and has restricted his family from seeing him. What can they do to get visitation rights?
K.bower replied on Permalink
Just wondering if they were abls ro get visitation? Same deal here but its the daughter whwhot let mw see her dad and qe were not married but lived together 13 yrs. If i dont see him soon i will loose it. Idk what to do he was tbe onlone who helped md ever. Im so lost pls tell meif theres is something i can do
DAN PARKER replied on Permalink
What are the rights of a non-guardian parent relating to knowledge of the care of an adult with traumatic brain injury?
DAN PARKER replied on Permalink
My adult son suffered a traumatic brain injury in an accident. While I was at an out of state VA hospital. My son's stepbrother and other parent were appointed guardians without my knowledge. I divorced my son's other parent and in retaliation, he advised the care facility to not allow me any information on my son's care or health. They also had their lawyer advise me that I could not contact the VA or care facility about my son. Is there anything I can do?
Caroline replied on Permalink
I have been in a few comas due to 14 suicide attempts as well as having untreated head injuries in the past. I am constantly being taken advantage of,it's happened all my life. I don't understand technology like my phone and ask strangers to help me. I get lost going to the grocery store so I avoid it all together cuz it's too stressful. I need a ride to the store and can't even bring it up 3 flights of stairs. I have applied to access link 4 times in the past year. My state provider does not help me much of the time. Hospitals don't give me my medical records. I was psychologically abused by staff at a state psych facility where they refused to let me use the bathroom. I also suffered from a possible brain injury at this hospital. My worker at the time removed it from my papers after my discharge. I read these papers again and again for about 2 hrs in waiting to go to my new apt. What happens when the state of nj is trying to cover the fact I had a traumatic brain injury??? I don't know what to do. I have no support system. I also suffered another head injury last Feb. When my legs were mutilated and I had septic shock. No one helps me
Bobbie replied on Permalink
I have the same thing. I sit alone in my room now and cry evert day and i dont know what to do or how to get help.
People dont even talk to me anymore because all i do is cry. And every day j jjust dig deeper and deeper and deeper
Glen replied on Permalink
I asked my best friends of 35 years just to give me a 10 minute call once a month, and that hasn’t happened.
Deborah replied on Permalink
I am not sure what state you reside in, but you need to get an advocate. it is like a caseworker who will work on your side to help you. You shouldn't be in that position. You mustn't blame yourself because things seem out of order to you. My son suffered a traumatic brain injury as well. It's not your fault you just need guidance to kind of make things more organized and you'll feel a lot better. Much love and God bless
Teresa replied on Permalink
My best friend was in a very bad motorcycle wreck. He was in a coma for three weeks and has brain damage. He had to relearn how to talk, walk, and eat. This has been so hard on him. He has no family and nobody has been by his side except but me and it has been so stressful.
The worst of it all is that during the several months he was in the hospital stay and rehab, people went to his home stole the titles to his motorcycles. Now a so-called "friend" convinced him to buy a car. When he came to my house I asked if he had the title or a receipt and he didn't. I went to take a look at this car -- it had a flat tire, no key, a busted headlight and sounded like crap when we finally got it started by using a screwdriver.
I am so tired of people taking advantage of him and tormenting his mind. I wish somebody could give me somebody to turn to and help him get his stuff back. This is a sad situation. It has to be somebody that can help.
Teresa replied on Permalink
Please help me find answers for him.
Michelle replied on Permalink
Teresa, I can relate to your post. My fiance was in a car accident that resulted in TBI. He was in a coma for 28 days. He and I had been together for 8 years, but I've known him since the 7th grade. Although we weren't married, we had our own home and business, and life was going along well for us. His father passed away in 1992, and he hadn't had a relationship with his narcissistic mother for 3 years prior to this accident. (Note, his mother and I don't get along). When he was in the hospital, I did what I thought was the right thing, and I called his mother and let her know what was happening. She became his Power of Attorney because we weren't married. She then had ME kicked out of the hospital and banned from seeing him! I called his father's side of the family for support, and they came to support he and I. So, his mother had his father's side of the family banned from seeing him also, simply because they took my side on the matter. She then invited his EX WIFE and her daughter (my fiance's ex step daughter) to the hospital. They took down pictures of he and I and replaced them with old pictures of their wedding day. They wouldn't tell ANYONE how he was, and had a password set up at the hospital in case someone called to find out how he was doing. She then called our landlord and said he would never be returning to that house, and they took his things out of our home and SOLD THEM at the FLEA MARKET! His sister, mother and ex wife's family came in like vultures and proceeded to tear apart our life together. Taking what they wanted, furniture, antiques, family heirlooms. We lost our home, our business, personal possessions, our work truck, tools...His mother made sure that there would be nothing left. BUT...they NEVER thought in a MILLION YEARS that he would be recovered enough to realize what they did. But he is, and he can't forgive them for what they've done. When he was released from the hospital, he was released into his mother's care. At first, they lied to him and said that "the woman you were with, she left you and is now living with another man". Which was a complete lie! I had been fighting for him every day he was away from me. They wouldn't tell him where he lived before, where I was, who I was, or anything about the last 5 years of his life because they didn't know...she hadn't been around in years! He had to learn how to walk, talk, eat...everything. Once she got him to her house....She couldn't handle him, so she "invited" me to come stay there at her house and help him. Since I've been there, she has called the cops on him, told him she wishes he had died in the accident, told him he was a mistake, calls him names, steals his things, hides his phone and keys, and his mother's boyfriend even pulled a knife on him! It's extremely abusive! Monday...she started in on him...picking and calling him names...and he yelled back at her. She called the cops and lied on the police report claiming SHE was abused...now there's an Emergency Protective Order against him and he's not allowed at the house. She's using the legal system as a way to kick him out because of her jealous boyfriend. HE now wants him home. My fiance is not working, and we're still trying to get disability for him. People take SUCH advantage of him, and it's sickening. Right now, we're just working on getting into a better living situation. With limited funds and help...I'm drowning. But...I refuse to give up. Love has brought us a long way. It's just sad that you get to see a completely different side of people when when opportunity controls their loyalty. They came in to tear him down and leave him with nothing. I'm here to help rebuild our life.
In our area...there's a place called Brain Injury Services. You may want to see if there's an organization like this where you are. They've been a tremendous help, and it's free.
I do understand where you're coming from. Being on the outside looking in...sometimes it's a helpless feeling. It takes a strong person to take something like this on. He's blessed to have you by his side. One day at a time...chin up!
Jen replied on Permalink
Wow . Your story just made me feel instantly better about mine. What a wild ride . I'm glad he's recovering!
Mine is just your basic grandmother who favored one son over the other and created this hostile environment of toxic masculinity now that she is in a temporary recovery center. She is awake and talking but already had signs of dementia before . She's kinda a miracle. She wants to come home but the son with the papers doesn't think it's a good idea and now it's gotten mess. I honestly don't know how I feel about it. I just wish we could all make the decisions and take turns letting her be where she's happy even if the bulk of the caretaking is on me. I'm a granddaughter. I've hid out for 2 weeks when I thought I was sick but then realized I was just really depressed and stressed . We've had a lot of loss . Neither one of her sons are going to listen to me it they know better which is always because I'm "only 32." I literally just want them to stop fighting , giving silent treatments and threatening each other so she can come home for whatever time she has left .I can't handle being in the middle or hearing her beg me to come home because I can't do anything about it. So .... Just one of those messy elderly things that come up when issues had a bandaid slapped on them for 50 years and everyone is too proud and manipulate to even boil water together. The rest of us who don't give a damn about material possessions or control end up losing the the remaining time .
That said , your story was way more intense.
Jacqueline Nich... replied on Permalink
i am going through the same thing right now with my fiance sister. i cried reading your story. i am in california she received consecutership by saying he was single. i informed the attorneys they should have told the judge. having it thrown out . instead they are teaming up letting he isiolate him from me, selling his things trying to let us loose our home. please any help advise i am unendated
Teresa replied on Permalink
Thank you, it has been awhile since I been on line . My friend Scott with TBI has been having a very hard time dealing with everything that has been stolen from him . Two cars , two motorcycles and two four wheelers . All the titles . And its been so hard on me cause he has been so very angry . Some days I feel I can not handle this Any more.
Ginger replied on Permalink
Michelle,
My Fiancé fell 30 ft last October 7, 2017. He suffered TBI to his frontal lobe! We too are not married but shared our home and every other aspect of a married couple! His children from a second marriage maybe visited once a year, if that. I have two sons from a previous marriage and we lived as a family! I was the last face my fiancé saw before they took him into surgery not knowing if he would survive. On November 6, I went to see Frank and with me being there he finally started responding. The staff was thrilled. I stay night and day till November 4.
When I went back I was told I had to leave. They changed passwords and the only way I could find out about him was through sending friends there! He was in a coma or induced coma for three half months! Two weeks later they flew him to Nebraska. I only got to see him before he left with the help of our friends!
Well, it's been seven months now! His son had promised me updates but that was when his son needed stuff from Frank's home! I never got an update -- just a message to "go hang" myself!
Like you, they brought in his ex-wife (not the mother of his children) but the one he just paid $22,000 to divorce. She put pictures up of him and her acting as they were still a couple! Even told the staff she was his wife. I faxed divorce papers! I can't understand how they are allowed to mess with someone injured brain by trying to delete the last three years before the accident!
I guess what I'm needing to know is how long does therapy take? Shouldn't he be able to speak for himself? He was talking in sentences in February! I'm so lost. I've been paying our bills and his mortgage (which his son was supposed to be doing). All our bills are in collection and our home soon to be in default! I keep thinking he should be coming home soon.
In the Dark
Harry West replied on Permalink
I'm a Highly Qualified person and I am nearing full recovery after a TBI, many years it has taken. In this country one has no rights at all!
Anon.
Elizabeth Byrnes replied on Permalink
What a true statement. I have literally lost everything, aside from my home, to the right compensation from the man that ran me over twice and dragged me down the street, to proper medical care, to my job, to the expense of relationships, any noral life, I have been put with mentally ill people whom have completely different issues, I have endured homeless, lack of medical, food assistance, there isnt an area that has not been affected. I've been abused in the housing I reside with no resolution, I'm not stupid. I just am different now. Everyday is a gamble. I've qualified for TBI subsidy and then for the very reason I need it. I'm broken but have a very strong reason to live. I've had human, civil, medical you name it I've been burdened with so many tasks that a normal person cant get through. The judges for not trying hard enough. It's a hideous way to live.
Deborah replied on Permalink
My son had a traumatic brain injury, he's got nothing but the runaround homelessness hunger lack of medical took years to get him half of the disability he's owed. I feel for you and I pray for you I hope that things get easier somewhere somebody's got to step up and change these laws. Bless you
Anonymous replied on Permalink
My TBI happened when I was 16 from a car accident. I had a settlement with the insurance company in 2006, and by 2007 my mom had transferred my money out of our joint account and into her account. I had wanted help managing it and I had believed that my mom was trustworthy. Money is funny how it changes people.
I have fought for 10 years to get back what was taken. I focused on learning the best I could about the legal system, because calling lawyers and many web searches turned up nothing. This whole situation is easy to prevent and I am certain it happens often.
Anonymous replied on Permalink
I was taken advantage of by my parents right after my settlement, and due to a DAI TBI, I was too weak to go against it. Long story, short, my husband literally rescued me/saved my life, but my parents had ALSO taken out a life insurance policy on me (that couldn't be converted into anything else) I really don't know what I am able to do.
Anonymous replied on Permalink
Well said above! I Am a fellow TBI survivor When I fell 3 stories after I finished my freshman year at The University of Texas I'm Austin in 2000
Anonymous replied on Permalink
civil rights were violated in our case severely after head injury. people in charge of state agencies should be required to take classes and learn about head injury rather than attacking families and demanding they gey drugged up on prozac simply cause a school refused to provide education andnwould rather report families fr nonprozac rather than provide education and threaten to steal a teen from his home which regressed his recovery steps made due to stress and denying him therapy he was doing well with. we havensince had to prove based on false allegations that a healthy teen would die without prozac that indeed a teen cannot die if healthy and not depressed. what a nightmare and do ya think anyone in charge of a single agency stood upagainst such monsters as this happened? no. i can only pray no on else has a head injury in davenport iowa. ever.
Anonymous replied on Permalink
Yes but No, i had a T.B.I at the age or 10 with my best of friends on the back of my new red bike, well my life changed that day after i asked my daddy working on the windows in our garage, can i take ... for a ride on my new bike (of course we did not have helmets back in the 60's) i took her for a ride down the street and the bike went under both of us and i went over the handle bars she fell on my middle of my back which brought me back up after i smashed my head on the cement then back to the cement and turned my head the other way. And i was taken to the hospital x ray then sent home for 6-8 months then back to school. Psycharist my mom the nun and he said you will do ok in life but you probably won't do college but you will do ok. Their was no therapy back then so i just went on with life. No college, no husband, kids but i'm ok. No one knows, no one not even your siblings what you go through every day almost, mood swings mood swings, you would rather be alone, after a sibling says to you ask your husband if he has ever been ashamed or imbarassed in public with me, yeah my sister said this to me, and they wonder why I'm so unstable, go through what i went through and you will know yeah you will know, Honey.