Filing a Lawsuit for a Loved One in California

Filing a Lawsuit for A Loved One - How it Works in California

In California, to file a personal injury claim, you must have "standing" to sue for the relevant claims.

What does this mean?

Essentially, to have standing you must either be the person directly affected by the accident at-issue, or you must qualify as the legal representative of the person who was actually affected by the accident at-issue. Typically, filing a lawsuit is handled by the person who is directly affected (e.g. the plaintiff), unless said person is a minor, disabled, or otherwise incapacitated under the law.

So, what happens when a loved one does not have capacity to sue?

If your loved one has been injured, but currently lacks the capacity to sue under California law (they are a minor or are otherwise mentally incapacitated), they will not have legal standing to pursue their personal injury claim. In such cases, it is necessary for a legal representative (or, in the case of a minor, a guardian ad litem) to file the lawsuit.

To put it in simpler terms: if your loved one has been injured in an accident due to the fault of another, but is a minor or is otherwise incapacitated, you can still file a lawsuit and pursue the claim - you just have to ensure that a proper legal representative/guardian ad litem to be appointed.

The Guardian Requirement

Again, minors and persons lacking legal competence to make decisions must pursue their injury claims through a guardian ad litem (see California Code of Civil Procedure section 372(a). The court will appoint the guardian ad litem.

For minors, appointment of a guardian ad litem is mostly a non-issue: a parent of the child will be appointed as the guardian ad litem (or the child's legal guardian, in the event that the child has no living parents).

In California, the statute of limitations period does not begin to run until the minor reaches the age of 18. As such, the personal injury claim can live for many years longer than the standard personal injury statute of limitations period - despite the fact that a guardian ad litem could pursue the claim for the minor during such time.

For persons lacking the legal competency to make decisions (incapacitated persons, for example), a guardian or conservator of the estate will have to be appointed. These may be selected beforehand (through various power of attorney mechanisms, if the required documents have been executed), or may be court-appointed.

Generally speaking, courts give preference to guardians/conservators who are friends or family of the incapacitated person. A friend or relative must make an application to serve. If none are suited to the role (though the standard is fairly low!), then the court may appoint someone of their own choosing.

Continued Concerns

Many people have concerns about how the dynamic of having a guardian ad litem or other legal representative affects a personal injury claim. In reality, however, these are facilitation mechanisms, and nothing more. The use of a legal representative to pursue a personal injury claim should not affect the outcome of the claim (and will - to only a minor extent - affect the distribution of damages).

Legal representative has power to settle

The legal representative of the minor or incapacitated person has a great deal of power and decision-making discretion. If you are planning on serving as the legal representative for your child (or an incapacitated loved one) in a personal injury lawsuit, it is helpful to understand the extent of your powers. Specifically, you are empowered to accept a settlement compromise and to discharge the claims as necessary. This is important because most claims settle before a judgment is reached. As such, being able to use your discretion to reach an amicable settlement prior to a court judgment is crucial to achieving a successful resolution for the injury claims.

The legal representative will be paid

Though the legal representative will not be paid an egregiously high amount of fees, the court is required to pay the legal representative fair compensation for their reasonable expenses in pursuing a claim on the minor/incompetent person's behalf. Such fees are not meant to be excessive, nor are they meant to "reward" the legal representative. It is meant to cover the costs, only.

Legal representatives can take over a lawsuit midway

An ongoing lawsuit need not be destroyed in the event that the plaintiff becomes temporarily or permanently incompetent/incapacitated during the lawsuit. This is not an entirely rare event, given how long some lawsuits go on for (in excess of 1-2 years!). In such circumstances, the action will not be suspended or destroyed. Instead, the legal guardian can continue the action with the court's approval.


For a free consultation with a very experienced San Jose personal injury attorney, call the Law Offices of Brian O' Grady at (650) 318-6131 to set up your appointment today.