How Do You File a Personal Injury Claim For an Incapacitated Individual?
It’s stressful enough getting into your own accident, but when someone you love is left incapicitated, it opens up a whole new world of uncertainty and anxiety. When expenses are piling up and the accident victim is unable to help themselves, a personal injury claim is needed in order to recover the requisite compensation. However, the process is a little different than usual when a third party is filing the claim, so let’s take a look at some of the factors claimants and their families should consider.
What Does it Mean to Be Legally Incapicitated?
As with all laws, the exact language for determining incapacity is different from state to state, but they all revolve around some form of severe impairment or loss of cognitive ability. A legally incapacitated individual does not have the ability to reasonably make decisions for themselves or communicate effectively.
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It’s important to reiterate that incapacity is a cognitive impairment and not purely physical. Accidents can cause severe injuries and even paralysis, but if an individual retains enough mental ability to comprehend their surroundings and communicate their desires, then they do not meet the criteria for incapacity and would have to file their own claim.
The Concepts of Guardianship and Power of Attorney
Two concepts that directly relate to cases of incapacity are known as guardianship and power of attorney–guardianship is the legal appointment of one individual to make decisions for another, and this is usually referenced when talking about parents and children. It relates to accident claims because guardianship is needed in order to file a claim on behalf of another person. The more convoluted the guardianship process is, the more difficult it will be to file a claim for an incapacitated individual.
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That is where power of attorney comes into play, as they outline many of the same responsibilities that guardianship entails. The difference between them is that a guardianship is chosen by the court and a power of attorney is chosen by the individual themselves. The scope of a power of attorney can be as limited or as broad as the appointee chooses. If an incapacitated individual has already chosen a power of attorney before an accident occurs, it streamlines the process because there is already someone in place to handle matters. If no power of attorney or guardian has been appointed, disputes can become very heated and contentious, especially if the affected individual is very wealthy or influential.
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Petitioning for guardianship is a complicated process, and it is highly recommended that you retain an experienced personal injury attorney when doing so. You will have to provide documentation and reasoning as to why the affected person is in need of guardianship and why you are suited to fill that role.
If a judge feels that your petition is valid, they will grant you guardianship of some kind; most states have different levels of guardianship, and it can be a temporary or permanent arrangement, especially if there is a chance the affected individual may eventually recover. Guardianship levels are typically as follows:
- Power to manage financial and estate-related matters
- Power to manage medical and personal matters
- Power to manage all matters
The Process of FIling a Claim
After you’ve gained the authority to act on behalf of an accident victim, you can then proceed with a personal injury claim against the guilty party or parties. Even though the actual plaintiff is not present, the process proceeds in much the same way as any other claim, in that you will work with your attorney to do the following:
- Investigate the circumstances of the accident
- Collect and preserve any evidence of negligence and wrongdoing on the part of the defendant
- Collect and present the whole of the claimant’s damages, including medical expenses, property damages, non-economic losses, etc.
- Negotiate a favorable settlement with the insurer or defendant in question
- File a lawsuit and proceed to litigation if a settlement is not reached
Even though the process is the same, it may take longer and it may include additional duties and responsibilities as a legal guardian. The best thing a claimant can do is be patient and coordinate with their attorney as much as possible, so that everyone is always on the same page.
Need Help With a Personal Injury Claim? Contact Van Law Firm Today
The claim process is stressful enough when it involves your own injuries, but shouldering the burden for others who are incapicatied can be truly overwhelming. Thankfully, the award-winning team of personal injury attorneys from Van Law Firm are here to walk you through every step of the process, from intake to settlement and beyond. With all injury claims, time is always of the essence, so call our office nearest you today to schedule a no-cost, no-obligation consultation.
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