If your parent is suffering from dementia, a brain injury, or other cognitive impairment, he or she may lack the mental capacity to bring a personal injury lawsuit. However, this does not mean that your parent can’t obtain financial recovery as a result of the negligence and/or abuse by another person. You may be able to commence a lawsuit on behalf of your injured parent for injuries arising from:
- nursing home negligence
- motor vehicle accidents
- pedestrian vs motor vehicle accidents
- retirement home negligence
- medical malpractice
- falls, slips and trips
- product liability claims
- disability and critical illness insurance claims
While seeking financial recovery on behalf of a parent is possible, it is important to know that these sorts of cases must be handled differently than other types of personal injury claims. They require unique elder law expertise. Reach out to our firm today for a free consult, if you think your parent may have a claim.
Pursuing a Lawsuit on Behalf of Mom or Dad
Become a Litigation Guardian
The first step to commencing a lawsuit for personal injuries on behalf of a parent lacking the mental capacity to sue involves becoming his or her litigation guardian. Under the Rules of Civil Procedure in Ontario, people “under disability” require a litigation guardian to file a lawsuit. The definition of a legal disability is complicated, but I will try and keep it simple here. A person requires a litigation guardian if he or she is:
- unable to understand information that is relevant to making a decision in respect of an issue in the lawsuit; and/or
- unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision in respect of an issue the lawsuit.
The lawyer representing the injured party will determine whether he or she has the mental capacity to commence a claim.
There is a hierarchy of persons set out in law who have the authority to act as a person’s litigation guardian. First, is a person who has already been appointed by the Court as a guardian of the older adult with the authority to act as litigation guardian. The next person in line, is an attorney under a power of attorney for property with the authority to act as a litigation guardian. It is common to find a clause in a power of attorney for property document, which explicitly provides the attorney with the authority to act as litigation guardian in any legal proceeding.
If there is no existing guardian of the person or attorney for property, any person who is not under a disability may become a litigation guardian by swearing and filing an Affidavit with the Court that meets certain legal requirements (provided they don’t have an adverse interest in the proceeding).
Limitation Period for Personal Injury Claims
In Ontario, a person must commence a legal action within two years from when he or she first knew or ought to have known that a claim could be made. Generally, this is two years from the date of the accident. However, the two year limitation period does not run during any time in which the person with the claim is incapable of commencing a proceeding and not represented by a litigation guardian.
Settling a Parent’s Personal Injury Claim
There are additional legal protections when it comes to the settlement of a personal injury claim for a party under disability. Once a litigation guardian decides to settle the claim, they must bring a motion for court approval of the amount for which the claim is being settled. Before approving the settlement, the Court will consider the following:
- the reasonableness of the settlement amount given liability and damages
- the allocation of settlement funds as between capable and incapable parties, if there are multiple plaintiffs
- the reasonableness of the legal fees charged by the lawyer
Ultimately, it is up to the judge to determine whether the settlement is in the best interests of the person. If the judge approves the settlement, he or she will sign a judgment. Generally, the next step is to appoint a guardian of property to manage the settlement funds.
If your parent has been injured as a result of another person’s negligence contact us for a free consult. We have helped many families get the financial recovery they deserve.