Sometimes a claim can be filed on behalf of another family member if the family member is unable to handle the case on his or her own. There are generally two reasons this is done. One is when it involves a minor and the other is when an adult is incapacitated.
Filing an Injury Claim on Behalf of another Family Member
Minors don’t have the legal capacity to enter into a contract. Therefore, if a child suffers an injury and damages in an accident, someone who can make an informed decision in the minor’s best interest must take legal action.
Another scenario is when an adult family member has been severely injured in an accident. Let’s say a high speed crash on Interstate 225 in Aurora caused a loved one to sustain brain damage.
Another driver was intoxicated and had exceeded the posted speed limit by more than 30 mph. Because of incapacitating injuries and an inability to make legal decisions, someone else might file an injury claim on that family member’s behalf.
Whatever the circumstances may be, court approval is necessary in order to file a claim on someone else’s behalf. If an adult didn’t already have a power of attorney, a conservator or guardian would need to be appointed. The same is true for a minor.
Appointment of a Guardian or Conservator in a Personal Injury Case
One of the duties a guardian may have is to make medical decisions, whereas a conservator typically makes financial decisions. In some cases, it’s necessary for someone to decide on both medical care and financial interests. Because of the important responsibilities a guardian or conservator has, not just anyone can be appointed which is why the courts get involved.
First, the court must decide that the circumstances require the appointment. Age is usually the only factor regarding a minor. But with someone who is incapacitated, the individual’s status must meet certain requirements, such as being unable to effectively evaluate and/or receive information. In both cases there must be evidence that supports the necessity of a guardian or conservator.
Second, whoever is appointed must be deemed capable of making necessary decisions, which includes not having a personal interest. Once it’s determined the individual meets the criteria, the court will make it official. However, any settlement reached in an injury claim must also be approved by the court.
Why Seeking Help from an Attorney May Be Necessary
Sometimes people mistakenly believe that a parent is automatically appointed as a guardian or a spouse would be appointed as a conservator. But that isn’t always the case. So it’s important to discuss your rights regarding serving as the injured party’s representative with an attorney.
Not only can legal counsel assist with the process of becoming a guardian or conservator, a lawyer can help handle the injury claim, including negotiating a settlement. Contact D.J. Banovitz if you’re in the Aurora area and have questions about your case and/or right to file a lawsuit on behalf of another person. Call 303-300-5060 or contact us online.