What happens when an injured party lacks capacity to sue?
When a person is injured as a result of another’s negligence, an action to recover monetary compensation is available. The person commencing the lawsuit is the plaintiff and, the person, or entity, being sued is the defendant. In many cases, the injuries sustained by the would-be plaintiff are so severe or fatal, that they cannot represent themselves. Until such time as someone accepts responsibility to protect the assets and rights of the injured party, no lawsuit may be commenced. Such a person is called a fiduciary, who is appointed by the Court, and empowered to commence a lawsuit as “the nominal plaintiff” and act in the best interests of the “real party in interest.”
Did you know that if the Court finds that a person who has commenced a lawsuit “lacks the capacity to sue,” the action can be dismissed? While this seems harsh, the reason for this rule is to protect and preserve the rights and interests of an alleged incapacitated person [referred to as the “AIP”].
When the family of a loved one consults our law firm, we ascertain whether a Guardian may be required, and if so, our law firm will take the necessary steps to have a close family member appointed Guardian. Keep in mind that while your intentions are sincere, your loved one may not consent to such a proceeding, or if they do, based upon their condition they may not be in a position to execute a valid consent.
In most instances, the person commencing the proceeding is the spouse, adult child or parent, seeking to be Appointed Guardian of the Person and Property of the AIP. The Petition must be accompanied with detailed medical proof of the AIP’s mental and physical condition, and why he or she is incompetent, for instance because they may be ventilator dependent, in a vegetative state, or confined to a nursing home and unable to make their personal needs known.
The proceeding can be contentious since the prerequisite for the appointment of a Guardian is a hearing and determination by the court based upon medical evidence to establish incompetency. As in any court proceeding, our system of justice requires notice and an opportunity for any potential interested person, such as a close family members, to be heard as to the relief requested, and object to it.
In the Petition for the Appointment of a Guardian for an Alleged Incapacitated Person, there are specific prerequisites and details, which must be met, which include:
- The assets of the AIP, which include the potential proceeds of an action to recover monetary compensation to be brought upon appointment of the Guardian of the Person and Property and review of medical records.
- Any outstanding debts or claims.
- The names, address and telephone number of potential heirs (spouse, parent or children) other or interested parties.
In the Petition filed with the Court to initiate the proceeding, the proposed Guardian must state whatever specific powers it needs to act on behalf of the AIP, for example:
- Marshall the alleged incapacitated person’s assets, make all expenditures and pay all expenses necessary for his well-being;
- Authorize access to or release of confidential records
- Apply for government and private benefits;
- Consent to or refuse routine or major medical or dental treatment;
- Determine the appropriate facility or residence for the AIP.
- Retain and pay counsel, institute any action to recover for the personal injuries sustained by the alleged incompetent person, settle and compromise and /or discontinue such action, and distribute any settlement funds;
- Pay such bills as may be reasonably necessary for maintenance and support of the incapacitated person;
- Prepare, sign and file tax returns and deal with all Federal, State and local taxing authorities with respect to all claims, litigation, settlements and other matters.;
After reviewing the Petition to Appoint a Guardian issues an Order appointing a designated Court Evaluator herein to explain this proceeding to, the Alleged Incapacitated Person and to investigate the claims made in the Petition as well as an attorney to represent the AIP
The Court sets a specific date and time for a hearing and directs the attorney for the Petitioner to serve notice upon the Court Evaluator, the appointed attorney for the AIP, and other interested parties including the heirs, including the facility where the AIP is confined or where the AIP is residing or confined, and potential creditors.
And then at the hearing, after reviewing the paper filed with the Court, the testimony of interested parties and/or objections, the Court renders a decision and judgment either granting denying or modifying the relief sought.
As you can see, this is a complicated and time-consuming endeavor; however, it should be addressed, considered, and dealt with.
If your spouse, child, or parents have sustained devastating injuries as a result of carelessness, negligence or medical malpractice, they be entitled to monetary compensation for their past, present and future pain and suffering.