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How a Lawsuit Works When the Victim is Incapacitated

The Law Office of David Dwork

How Families of Persons with Head Injury Can Get Settlements for Their Loved Ones

A sad reality of the field we work in is the fact that many of the injured accident victims we represent are incapacitated as a result of their traumatic brain injury. Legal incapacity comes in many different forms, but it always has an impact on the way a lawsuit is handled for the incapacitated person.

What is Legal Incapacity?

Legal incapacity is the inability to make decisions regarding one’s financial and legal options, and the inability to understand the meaning of legal proceedings. It often renders an individual unable to bring their own lawsuit to compensate them for their injuries. In head and brain injury cases, it would be incredibly unjust if an individual was unable to seek compensation for the injuries that made them incapacitated, simply because they were incapacitated. Therefore, the law has developed so that a designated individual can bring the lawsuit on behalf of the injured person.

Who Decides if Someone is Incapacitated?

When there is a question as to whether or not an individual is competent enough to bring their lawsuit, the court will make the determination. This is usually done through a hearing to determine competency. There are many instances of legal incapacity, such as being a minor child, mental illness, dementia, or other serious conditions that render the individual unable to understand the legal proceeding. In a personal injury case, the court will evaluate the mental capacities of the injured plaintiff, with review of medical evidence and testimony if necessary, and will then determine whether or not they are capable of bringing the action.

Who Gets to Bring the Lawsuit?

Once the court adjudicates the accident victim as incapacitated and unable to bring the claim on their own behalf, the question will turn to who will be the guardian for the individual. A guardian is appointed by the court and is usually a husband, wife, or next-of-kin who is a responsible individual that can assist the injured person with their affairs, both legal and medical. The guardian will be responsible for making many decisions on the injured person’s behalf, including whether to file a lawsuit and all of the legal decisions that go along with the personal injury case.

Where Does the Settlement go?

It’s important to remember, though, that the lawsuit will be filed by the guardian on behalf of the injured person. This means that settlement monies or jury awards will be set aside for the injured person to compensate for their medical care and therapy, or any other needs that arise in caring for them, such as housing and living expenses. While a guardian may be able to disburse these funds, they will always be held in trust for the benefit of the injured plaintiff and not for any other purpose.

Call a Boston Brain Injury Lawyer Today

If your loved one was injured in a catastrophic accident and suffered a brain injury, you need to act quickly to ensure that they have a guardian appointed and that their legal rights are protected. Call Attorney David Dwork today to talk about your legal rights.

Client Reviews

Please accept this review as my letter of recommendation for David Dwork to represent you as your next attorney. David was referred to me by a consultant, who has advised me for several years on financial and...

- Brian M.

My family has had the pleasure of working with Attorney David Dwork since last September, and the more I work with him, I know we selected the Best. He was highly recommended by two attorneys who I respect...

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I worked closely with David for more than 25 years in a mid-size law firm where, for much of that time, he was head of the litigation department. As we worked together on numerous complex litigation matters, he...

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