When someone is harmed by another person’s negligence, he or she usually has the right to pursue legal action against the at-fault party. But what happens if the injury victim cannot do this on his or her own?
The knowledgeable West Palm Beach personal injury lawyers at our firm discuss these exceptions in detail and explain when you may be able to file a personal injury lawsuit on behalf of a loved one.
When the Victim Is Incapacitated
Sometimes an accident is so severe that it causes the victim to become incapacitated or the victim already had a physical or mental disability at the time of the accident. In either case, because he or she does not have the capacity to do so. Someone could be appointed on his or her behalf to make medical, financial and legal decisions.
Florida law allows two different pathways to accomplish this. The first is to have the court appoint a guardian. If a guardian is already appointed, Florida Rule of Civil Procedure 1.210(b) allows the guardian to sue on the victim’s behalf.
If a guardian has not already been appointed, the person wishing to be appointed guardian would have to petition the court for this appointment and establish that the victim cannot make decisions. The proposed guardian will have to appear at one or more hearings and will have the burden of proof that a guardianship is necessary and that he or she should be appointed as guardian.
Once a guardian is appointed, the guardian can work directly with a lawyer on the injured victim’s behalf. He or she can assist with the necessary tasks to initiate and maintain the lawsuit.
Florida law also allows a lawsuit to be filed on an incapacitated victim’s behalf without a legal guardian. This can be done by being the victim’s “next friend” or by a guardian ad litem. A guardian ad litem is a professional who is appointed by the court to act as the victim’s representative and in his or her best interests. A “next friend” is a person who acts on the victim’s behalf even though he or she has not been appointed as a guardian.
When the Victim Is a Minor
Another time when you can file a personal injury lawsuit on a victim’s behalf is when he or she is a minor. In these situations, a parent or legal guardian can file the lawsuit on behalf of the child. A child cannot legally file a lawsuit on his or her own before reaching adulthood.
Filing a lawsuit early while the child is still young can help the parents or legal guardian recover compensation now to cover existing expenses as well as for anticipated medical treatments or rehabilitation services. A lawsuit can also be filed by the child’s “next friend.”
If the lawsuit is successful, the person bringing forth the lawsuit is not entitled to the proceeds. Instead, these funds belong to the child. The court may require that a conservatorship be established so that these funds can be managed on the child’s behalf until he or she becomes an adult. The child could also choose to wait to take legal action once he or she reaches the age of 18.
When the Victim Unexpectedly Dies
If the victim files a personal injury lawsuit and unexpectedly dies before the case is finished, a third party may be able to file a lawsuit on the victim’s behalf. The person eligible to file this type of lawsuit is typically the personal representative or executor of the estate. This person typically files the lawsuit on the behalf of the surviving spouse, child or other dependents.
Contact Our Firm to Learn More
Personal injury cases are often complex and advocating on behalf of an injury victim can be difficult, especially if you are not familiar with the procedures that need to be followed in these situations. The experienced lawyers at Gordon & Partners are prepared to help you navigate through the legal process and fight to recover fair compensation on your loved one’s behalf. Contact our firm to schedule a free, no-obligation consultation to learn more about your options.