Posted on behalf of Anderson Cummings on Jan 30, 2020 in Personal Injury
In most cases, the victim of another’s negligence is the only one who can file a personal injury lawsuit to pursue compensation for damages. However, sometimes victims are disabled or incapacitated, either as a result of the accident or another factor, like a pre-existing medical condition.
In this situation, others may be able to file a lawsuit on the victim’s behalf. If you have a loved one who cannot advocate for himself or herself because of a disability, contact Anderson & Cummings for a free consultation to discuss what your options may be.
Guardianship in Texas
You may be able to file a lawsuit on your loved one’s behalf if you have been appointed a guardian or an incapacitated adult.
Under Texas law, an incapacitated adult is either an elderly individual, senior or developmentally disabled adult, who is substantially unable to provide for himself or herself or manage physical health or financial affairs. The individual is in this situation because of a physical or mental condition.
Texas appoints guardians in the following order:
- The individual who was designated to be the guardian by the incapacitated individual
- The spouse
- Non-relative the court determines will be an appropriate guardian
You may apply to be a guardian by submitting an Application for Appointment of Permanent Guardian. You need to provide documentation from medical professionals about the mental acuity and physical ability of the person you are seeking guardianship of. The latest examination of the individual must have been done within the last four months, or 24 months if the person has an intellectual disability.
A court hearing must be held, and clear and convincing evidence must be presented that the person is incapacitated, appointing a guardian is in that person’s best interest and the guardian will protect the property and rights of the incapacitated individual.
In an emergency, such as after a personal injury, courts may appoint an emergency or temporary guardian. The process for this is much faster:
- Application for temporary guardianship of a person or estate is filed
- Letter from a doctor is filed
- Appointment of an attorney ad litem, who advocates on behalf of the ward (incapacitated person)
- A hearing is held in court within 10 days of the application being filed. This will result in the temporary guardianship being granted or dismissed.
Temporary guardianship can last no more than 60 days. Once the 60 days pass, the court will review whether a permanent guardianship is needed.
Problems with Guardianship
While guardianship can help protect the vulnerable from many forms of abuse, it is very restrictive. The ward loses their most basic rights, and if the family is not appointed guardian, they may no longer have any involvement in decision-making. They may also have limited access to the ward.
Also, once a guardian is appointed, you must go through a court hearing to terminate or modify this arrangement, unless the ward dies.
Contact Our Firm If You Need Help
If your loved one was injured in an accident caused by someone else’s negligence, you may be able to file a personal injury lawsuit on his or her behalf. Schedule a free, no-obligation consultation with our Fort Worth personal injury attorneys to learn what legal options may be available.
There are no upfront fees and payment is only due if we recover compensation on your behalf.
Reach us by phone at (817) 920-9000.