When someone has sustained physical harm as a result of another person’s negligence, the injured person may seek compensation through a personal injury claim. However, there are circumstances under which, for legal or health reasons, another individual has to file a claim on behalf of the victim, usually a family member.
Which family members are eligible to file a personal injury claim on behalf of a loved one?
Minors cannot enter into contracts. Therefore, if a child is injured because of someone else’s careless or reckless actions, a parent (or legal guardian) can file a claim on his/her behalf.
Another reason that it could become necessary to file a claim on someone else’s behalf is when the injured person is not capable of making sound decisions in the legal process. It could be an elderly relative who suffers from dementia or a family member whose injuries render him/her incapacitated by something like a traumatic brain injury.
Parents, siblings and adult children are examples of family members who could be eligible to file on behalf of an injured loved one. No matter who the person is, approval must be granted by probate court which can sometimes be complicated. Therefore, it’s usually a good idea to secure legal representation with a local attorney in Denver.
When should a family member file a personal injury claim on behalf of a loved one?
Ideally it should be done immediately. Of course, it will take extra time to get court approval so it’s best to get the process going as soon as possible. The statute of limitations for a personal injury claim is two years in Colorado (three years if it involves a motor vehicle accident).
If the case involves a minor or a family member deemed mentally incompetent, it may be possible to extend the statute of limitations. This issue should be discussed with an attorney.
What is the procedure for filing a personal injury claim on behalf of a loved one?
The person seeking to file the claim must be appointed as a guardian. Although each situation may vary, there are some general requirements.
The following are steps to obtain guardianship:
- filing petition – must be filed with the district court in the county the incapacitated person lives;
- payment of filing fee – in certain circumstances this could be waived but is typically required at the time of filing the petition;
- submit medical information – functional evaluation must show evidence that the loved one is unable to make decisions;
- request for statement of the type of guardianship – typically guardianship is limited but other options include unlimited and on an emergency basis (this petition must also include extent of decision making authority being requested—such as medical and/or financial); and
- filing of statement of the respondent’s property – value of various assets.
If there are conflicts of interest or cause for concern in appointment, the court could prohibit the family member from obtaining guardianship. A hearing will be scheduled in which a decision is made regarding the family member’s appointment.
Although not required, it’s a good idea to have an attorney present. D.J. Banovitz helps families in Denver who must file personal injury claims on their loved one’s behalves. Call (303) 300-5060 to schedule a consultation