Can I File a Lawsuit on Behalf of an Incapacitated Victim?

filing a lawsuit for a victim who is physically or mentally incapableWhen a victim is severely injured in an accident, he or she may be physically or mentally incapable of pursuing compensation for his or her damages. If that victim is a loved one, you may be wondering if someone else may be able to take legal action on his or her behalf.

The Windsor personal injury lawyers at our firm discuss the possible ways one may be eligible to file a lawsuit on behalf of an incapacitated victim. Learn more about your rights and legal options that may be available at no cost to you during an initial consultation. There is also no obligation to hire us.

Victims Who May Need a Litigation Guardian

Anyone involved in an accident can sustain a serious, life-altering injury. A victim who lacks the capacity to instruct a lawyer must have a litigation guardian. Under Ontario law, these are victims who are legally deemed to be parties under disability. These victims cannot start a legal proceeding on their own.

In most personal injury cases, this includes anyone who prior to being injured or following an injury lacked the mental capacity to make informed decisions. For instance, a victim who suffered a traumatic brain injury may now be unable to assess the consequences of his or her decisions. Victims who may also need a litigation guardian include infants, children and young adults under 18 years old.

The Role of a Litigation Guardian

A litigation guardian can start a legal proceeding, including filing a lawsuit for damages, on behalf of a victim incapable of handling his or her case. A litigation guardian could be anyone over the age of 18 appointed by the court with the authority to seek legal counsel and instruct a lawyer.

Some of the decisions a litigation guardian can do include:

  • Discontinuing a claim
  • Accepting a settlement
  • Proceeding to trial

Litigation guardians are required to make important decisions and act in the best interests of the victim.

Acting as a Litigation Guardian in Ontario

In Ontario, a court-appointed litigation guardian could be a parent, spouse or another family member as long as he or she is not also deemed under disability.

However, it does not have to be a loved one. If the victim already has a legal guardian or a power of attorney, this individual could act as the litigation guardian. For instance, if the victim is a child, the litigation guardian is often one of his or her parent(s).

A litigation guardian must swear an affidavit in which he or she:

  • Consents to act as litigation guardian
  • Confirm that written authority was given to the named lawyer in the lawsuit
  • Give reason for the nature and extent of the victim’s incapacity
  • Set out his or her relationship, if any, to the party under disability
  • State no interest adverse to that of the party under disability
  • Acknowledge the requirement to personally pay any costs awarded against him or her, or the party under disability

In some rare cases, the victim’s lawyer, public guardian or trustee may be appointed if there is no known guardian, power of attorney or another individual willing to represent the victim’s best interests.

Reach Out to Our Firm to Learn More

If you want to file a lawsuit on behalf a loved one who is physically or mentally incapable, you may be able to be appointed as litigation guardian in order to do so. It costs nothing to talk to a lawyer at Greg Monforton & Partners about your situation during an initial legal consultation.

You are not obligated to have our firm represent you, but if you do, we charge nothing up front for our services. We only receive payment if we help you obtain compensation via a settlement or verdict.

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