A Brain Injury Does Not Mean a Person Loses His Civil Rights

Question: 

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?

Answer: 

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.

 

Posted on BrainLine January 30, 2014. Reviewed March 20, 2018.

Comments (16)

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?

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

What are the rights of a non-guardian parent relating to knowledge of the care of an adult with traumatic brain injury?

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?

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

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.

Please help me find answers for him.

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!

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.

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

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.

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.

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.

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

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.

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.