Imagine having a disability which required a legal guardian make choices for you—choices many of us take for granted: where we live, how we spend our money, whether we can drive. Legal guardians have tremendous power. Imagine your guardian forcibly removing you from one rehabilitation program to another in a different state where you have no friends or family. Next, imagine your guardian prohibiting you from contacting certain persons you trust, such as your family and previous rehabilitative provider. Then imagine your family not being contacted for a several days when you end up in the Intensive Care Unit after having medical problems. You may think that this could not happen in the US, especially with the mental health recipient rights strides of the 60’s, 70’s and 80’s. But this situation recently happened to someone I know. Professional guardians of those with traumatic brain injuries (TBIs) are allowed to do outlandish things that would never be tolerated for people with developmental delays or mental illness. Those with TBIs miss out on the recipient rights that have been acknowledged for legally incapacitated adults for decades now.
TBI can be devastating and result in lifelong deficits. It is a serious issue in the US that has been largely ignored. Every year, 1.4 million people suffer a traumatic brain injury in the US. Each one of us is only one accident away from a traumatic brain injury. One accident. I have worked at an assisted living program for over nine years (the last two and a half years as chaplain) and thus have become personally acquainted with the devastation of TBI. I have noticed more awareness of TBI as of late, but this has been largely focused on recent veterans. Some of the common deficits of TBI are impulsive decisions; psychiatric issues including mood swings, mania, depression, and anxiety; increased instance of substance abuse; cognitive problems; and short term memory loss. Even a “mild” to “moderate” TBI can adversely affect one’s life. Oftentimes adults with traumatic brain injuries are deemed unable to make decisions that have their own welfare in mind, and they end up with a professional legal guardian. This guardian is frequently appointed rather than chosen by the ward. Many who have legal guardians are still able to maintain gainful employment and live with some level of independence. Typically the best case scenario is for a family member or trusted friend to become one’s guardian. However, “professional attorney guardians” make guardianship their livelihood.
Although there is still injustice concerning those with mental illness and developmental disabilities, their civil rights are largely recognized. However, it has been my experience that those with traumatic brain injuries fall through the cracks in the system; all too often recipient rights are not applied to them.
The repeated refrain of the book of Judges comes to mind regarding the lack of regulation of guardians: In those days Israel had no king; everyone did as they saw fit. In many states there is virtually no oversight of these professional attorney guardians. Since many TBIs result from car accidents and work related injuries, treatment is privately funded. Michigan is a prime example of this: because of our no-fault auto insurance laws, there is a plethora of funding waiting for unscrupulous professional guardians to take advantage of. The practices of some attorney guardians are basically a version of human trafficking; they sell out their wards for silver (see Amos 2:6 and 8:6) moving them from one brain injury rehabilitative program to another. This happens when “deals” are cut with unscrupulous rehabilitative companies for someone to live there. This is particularly tragic when someone is forced to move away from their friends and family. They are at the mercy of a private capitalistic enterprise.
Furthermore, there are no licensing requirements for a professional attorney guardian in Michigan. You must be licensed to do counseling, to practice medicine, to perform marriages, but not to be a professional attorney guardian. Licensing is required for someone to do cosmetology but not for someone to make life-altering decisions for another person. One is required to have passed the bar exam to be an attorney, but nothing is further mandated concerning training to be a guardian. No required licensing plus no oversight and plenty of available funding, equals a cocktail for injustice. Sure you may get caught at something illegal, but who will report something within a privately funded system?
Losing one’s ability to make self-governing decisions is a hard enough; with our society’s obsession with autonomy there is no good paradigm for those that have no choice but to live lives of overt dependence. This difficult and complicated issue is made even worse when guardians appointed to serve them instead sell them out for thirty pieces of silver. Those with TBI’s need a prophetic witness; where is their kinsmen redeemer? Non-governmental interference is not going to work when it concerns those who have no voice.
Jesse Slimak is a licensed minister in the Evangelical Covenant Church. He works as the Spiritual Care Coordinator for Sheppard Rehabilitation Inc. (a company that serves those with traumatic brain injuries). Jesse is also an MDiv student at NorthPark Theological Seminary. He and his wife have two young children and live in the Detroit metropolitan area.
 Brain injury association of Michigan http://www.biausa.org/aboutbi.htm