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Personal Injury, Wrongful Death, and Medical Malpractice When It is Necessary to File a Guardianship

In law, there are cases, which require action in more than one jurisdiction; the court system has numerous divisions and often an attorney must appear in more than one court in a variety of different actions. These cases are called crossover cases.

There are times when a lawsuit in one division also requires a separate lawsuit in another. Factual circumstances dictate when two cases must be filed either simultaneously or one case filed a second opened.

A guardianship case is filed when an individual is incapacitated and does not have the ability to make informed or necessary decisions on their own behalf. Guardianship can be filed on behalf of minors who are incapacitated by age.

There are also guardianships filed which are caused by disease that limit people’s abilities to make choices such as Alzheimer’s or Dementia. Guardianships are also necessary when an individual is approaching the age of majority but does not have the mental capacity to make decisions on their own; an example of this type of Guardianship involved people with Autism or people born with other birth defects that make them either physically or mentally incapable of caring for themselves.

The examples given above are primarily related to individuals who need Guardianship, but these Guardianships are based upon a set of predictable events and occur frequently in the Guardianship and Probate Divisions.

There are unpredictable events that occur which require immediate and often emergency action in the Guardianship Division. These are cases in which circumstances outside an individual’s control result in a person becoming incapacitated.

Life is unpredictable and unfortunately traumatic events occur which impact the lives of both individuals and their families.

Personal injury cases result in Civil Litigation when the negligence or neglect of a person, company or business causes bodily injury or harm to an individual. Most personal injury cases do not result in a person being rendered incapacitated and those cases do not require the services of a Probate or Guardianship Attorney to file a case. However, there are cases in which an individual is seriously injured and does not have either the physical or mental capacity to care for themselves. Injuries which cause brain trauma or coma fall into this category. The injured individual does not have the capacity to file suit and a Guardianship must be opened to allow a Guardian of the Property of this person (the Ward) to act on their behalf to protect their interest, assets and future care. Not only is this Guardianship necessary to protect the Ward (incapacitated person) but also their family such as his or her spouse and children. The future of multiple people will be determined based upon the cases being filed. There will be a need for crossover cases in both the Civil Jurisdiction or General Jurisdiction, the Probate and Guardianship Division, and potentially Juvenile or Criminal Divisions may also be involved.

Cases involving the Wrongful Death of an individual result in a different set of circumstances. Clearly, a Wrongful Death action which was caused by the negligent or wrongful action of an individual, business or a company, require the filing of a wrongful death action in a Civil Action. Additionally, the Probate Division will be involved as it relates to the assets or Estate of this person. The Personal Representative of the Estate will have to file litigation on behalf of the Estate or heirs. The Guardianship Division is also involved, if the Deceased Person, or Decedent had minor children. The children of the Decedent may or may not need a legal Guardian to determine various issues. It may be necessary to determine where they live, to protect their assets, and clearly to determine their futures.

Finally, Medical Malpractice cases may result in a person becoming either permanently or temporarily incapacitated.

As in the case of a personal injury case, litigation will occur in both a Civil Jurisdiction and Guardianship Division. However, Medical Malpractice cases require specific Pre-Suit procedures in orders to meet the necessary time provisions to preserve the rights of the Ward. It is critical that a Guardianship be established on an emergency basis to secure the proper medical attention for the Ward in this scenario.

It is necessary to retain an experienced Attorney when complex litigation arises that may be necessary to be filed in multiple jurisdictions and divisions. These cases require strategy and careful thought. Please contact my office, if you have any questions concerning any of these types of cases or you are in need of representation.

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