If someone experiences an accident resulting in injury, that person has the right to pursue proper compensation for his/her injuries, loss, pain and suffering. But what if the person becomes incapacitated as a result of the injuries? What if you have a loved one who winds up comatose or permanently brain damaged? What if this loved one simply can’t fight the battle on his/her own? Are you able to file a personal injury claim on behalf of your loved one?
The answer is yes. It takes a few extra steps, a bit more time and likely some help from a personal injury attorney, but it can be done. Let’s look briefly at the various steps in the process.
When a person can no longer make financial, medical and/or legal decisions for himself, the courts can appoint a guardian to act on his behalf. No one can successfully file a personal injury claim on behalf of a loved one unless this guardianship is established. The first legal questions in any lawsuit is who is doing the suing, and whether they have the right to sue. You don’t have to wait to start gathering evidence and processing the other paperwork; you can do these alongside petitioning for guardianship. However, if you skip this step completely, your case may be thrown out because the courts don’t recognize your right to sue.
Sometimes, the proper chain of guardianship is already established, in which case you won’t have to petition for it. For example:
- If the injured party is a child — whether or not the child is incapacitated — the parents are automatically recognized as legal guardians able to file suit on the child’s behalf.
- Some people name a provisional guardian, power of attorney and/or medical proxy as part of their financial or estate planning, meaning this person or persons may speak for them in the event they are incapacitated. If the injured party has done this type of planning in advance, the named person(s) may already have legal guardianship.
If neither of the above is true, you will have to petition the courts for guardianship of your loved one as the critical first step in filing a claim. An experienced personal injury attorney can guide you through these steps.
While you work on establishing guardianship, begin gathering all the appropriate documentation that will serve as evidence of your loved one’s personal injuries and his right to compensation. These may include any/all of the following:
- Medical bills/records
- Insurance documents
- Expense receipts
- Documentation of property/auto damage, if applicable
- Any applicable photo/video documentation of the accident and your loved ones’ injuries
- Documentation to prove lost wages
- Prognosis of recovery (how long does the doctor expect the patient will take to recover—if at all)
All of this documentation will ultimately factor into how much compensation you will demand on behalf of your loved one.
If your loved one ultimately passes away as a result of his/her injuries, the nature of the case may change. At this point, family members may have the right to file a wrongful death lawsuit seeking appropriate damages. This compensation should cover the cost of medical care/burial as well as any resulting loss of income and financial difficulty the family may encounter, along with pain and suffering.
Consult with a skilled personal injury lawyer
Filing a personal injury claim is difficult enough when you’re the one injured; it can obviously be even more complicated when you intend to file on behalf of an injured loved one. Many things can go wrong in the process, any/all of which can reduce your ability to receive compensation. For this reason, you should never endeavor to file the claim without the assistance of a skilled personal injury attorney who understands the law and the inner workings of the court systems. An attorney will be able to:
- Assist you in procuring guardianship over your incapacitated loved one
- Advise you on what documentation to gather
- Determine the amount of compensation to ask for
- Help you make determinations on more intangible aspects of your claim, like long-term care, pain and suffering, etc.
- File the case on your behalf and represent you and your loved one in court, if necessary
Most importantly, a good personal injury attorney will be able to strategize with you to formulate a case most likely to result in a positive outcome for you, your loved one and your family. For a free, no-obligation review of your case, call Sutton Slover today at 404.768.0292.