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How Do You File a Personal Injury Claim For an Incapacitated Victim?

brain scan of an incapacitated victim
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Madeleine Jones
March 8, 2022

Getting into an accident is stressful enough, but when it’s someone you love that was left incapacitated it leaves a feeling of anxiety and uncertainty. When medical expenses are piling up and the incapacitated victim is unable to do anything for themselves, your family needs a personal injury claim to recover the compensation needed. However, this process is a little different than normal when a third party files the claim. 

Being Legally Incapacitated

As with any law, the exact way to determine incapacity varies from state to state. However, in Nevada, it revolves around some form of loss of cognitive ability or severe impairment. A legally incapacitated person doesn’t have the ability to communicate effectively or reasonably make their own decisions.

It is important to note that incapacity is a cognitive impairment and not a physical one. Accidents can result in paralysis and severe injuries. But, if a person has the mental ability to understand their surroundings and communicate with others, then, they don’t meet the incapacity criteria and will have to file a personal injury claim on their own.

What Are Power of Attorney and Guardianship?

These are two different concepts that relate directly to incapacity cases. Guardianship is a legal appointment of a person to make decisions for another person. It is usually used when talking about children and their parents. However, it relates to personal injury claims because guardianship is needed when you want to file a claim on behalf of someone else. The more complicated the guardianship process is, the harder it will be to file a personal injury claim for an incapacitated victim. 

This is where a power of attorney comes into the picture, as it outlines all of the responsibilities the guardianship entails. 

The Difference Between Power of Attorney and Guardianship?

The difference between these two is that the power of attorney is chosen by the individual and the guardianship is chosen by the court.  The power of attorney’s capabilities can be as broad or as limited as the appointee chooses. If the incapacitated victim has already a power of attorney before the accident even occurs, it will streamline the process since there is already someone that can handle matters. If no guardian or power of attorney has been appointed, any dispute can be very contentious and heated, especially if the victim is very influential or wealthy.

Petitions of Guardianship

A guardianship petition is a very complicated process. We highly recommend you hire an experienced personal injury attorney when going through it. You will have to give your attorney the documentation and reason why the victim is in need of guardianship and why you are the one fit to fill that role.

If a judge determines you have a valid petition, they will grant you some kind of guardianship. Most states have different types of guardianship, and it can be a permanent or temporary agreement. Especially if there is a chance the incapacitated victim may recover eventually. The following are the typical guardianship levels:

  • Power to manage all matters
  • Power to manage personal and medical matters
  • The power to manage estate-related and financial matters

Filing an Injury Claim for an Incapacitated Person

After you have been given the authority to act on behalf of the incapacitated victim, you can then continue to file a personal injury claim against all the guilty parties. Even when the actual plaintiff won’t be present, the process continues in very much the same way as any other personal injury claim. You will work with your lawyer to do the following:

  • Conduct an investigation of the accident’s circumstances
  • Collect and keep any evidence of wrongdoing or negligence from the defendant
  • Collect and show the whole of the victim’s damages, including property damages, non-economic losses, medical expenses, etc
  • Negotiate a fair settlement with the defendant in question or with the insurer
  • File the lawsuit and proceed to the litigation process if the settlement is not reached

Even when the process is the same, as a legal guardian you may have additional responsibilities and duties. The best thing you can do as a claimant is to be patient and work with your lawyer as much as you can. This way everyone is on the same page at all times. 

Related Post: What Is Second Impact Syndrome?

Contact us For Help With a Personal Injury Claim

Going through a personal injury claim process is already stressful when it involves you. But when you are going through it for someone who is incapacitated can be really overwhelming. Luckily, our highly rated team of personal injury lawyers from Cogburn Law are here to explain every step of the process. With every injury claim, time is of the essence. Call us today at (702) 748-7777 to schedule a free initial consultation!