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.
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.