Can You File a Lawsuit on Behalf of Someone Who is Physically or Mentally Incapacitated?

Posted on behalf of Peter T. Nicholl in Personal Injury Published on February 20, 2020 and updated on March 7, 2022.

filing a lawsuitA severe personal injury may result in the victim being mentally or physically incapacitated, unable to pursue compensation for his or her injuries. If that victim is your loved one, you may wonder if someone else is able to pursue legal action on his or her behalf.

The Maryland personal injury attorneys from our firm explain the possible ways one might be able to pursue compensation on behalf of an incapacitated victim. Learn more about the potential legal options available during a free, no-obligation consultation.

Acting as a Conservator of the Victim

If a victim’s injuries are so severe that he or she is mentally or physically incapacitated by them, a conservator may be appointed by the courts who can pursue legal action on the victim’s behalf. To be named a conservator, you must prove to the court that your appointment as the victim’s conservator is in his or her best interests.

First, the person interested in serving as conservator must petition the court – this is typically a friend or family member of the victim. The petition needs to explain the legal reasons why this request is being made.

A court hearing is scheduled, and a judge will hear the interested party’s reasoning that he or she should be named the victim’s conservator. At this time, the victim as well as other family members of the victim are able to voice their objection to the interested party’s request.

If the court grants conservatorship over the victim, the conservator may pursue a personal injury lawsuit on behalf of the ward. All actions associated with such a lawsuit must first be approved by the court, including an initial approval to pursue the claim. This requirement gives the judge the opportunity to review decisions made by the conservator, to see that they are in the ward’s best interests.

Guardianship Laws in Maryland

An adult who is unable to make his or her own decisions may be appointed a legal guardian by the court. Someone who cannot make medical or financial decisions for themselves may require a guardian, who would act on the ward’s behalf.

First the incapacitated person must be found in need of a guardian by the court. If a court finds that a guardian is needed, the proper person to fill the role must be determined. The priority order of those who should be named a person’s guardian is as follows:

  • Someone who has been appointed guardian, conservator or fiduciary in a different state or jurisdiction
  • A person designated by the incapacitated person before he or she became incapacitated
  • The spouse of the incapacitated person
  • One of the incapacitated person’s adult child
  • The incapacitated person’s heirs
  • A person who has a specific interest in the incapacitated person

In a situation where multiple parties pursue guardianship of the incapacitated person who are at equal level of priority, the court chooses the party most fit for the position. Someone of a lower priority position may only be appointed guardian if substantial cause exists.

In situations involving a minor who is incapacitated, the court can appoint separate guardians over the minor’s personal and financial affairs, or one guardian to fill both roles. Co-guardians may also be appointed, allowing two people to share guardianship responsibilities.

Determining When Someone is Incapacitated

To prove a person is incapacitated and requires either a conservator or guardian, the court requires certificates from two physicians. These certificates state the incapacitated person has been examined by the physician and give evidence of the condition that occurred due to incapacity. Evidence may include:

  • Specific mental conditions suffered by the incapacitated person
  • Effects of the conditions unique to the incapacitated person
  • Examples of the incapacitated person’s inability to make his or her own financial and/or legal decisions

Contact Our Attorneys to Learn More

If you wish to file a lawsuit on behalf of your incapacitated loved one, it may be possible to be named his or her guardian or conservator in order to do so. Request a free legal consultation with the experienced attorneys at the Law Offices of Peter T. Nicholl to learn more about your options.

There is no obligation to pursue a case. If you do decide to take legal action, there are no upfront fees. Payment is only due if we recover compensation on behalf of your loved one.

Call 410-244-7005 or complete our Free Case Review form.