Filing a Lawsuit for an Incapacitated Victim

Filing a Lawsuit for an Incapacitated Victim

Is it possible to file a personal injury claim on behalf of a family member who has been incapacitated? The quick answer is yes, and you can take legal action against a negligent party for injuries suffered by an incapacitated victim.               

However, here, “incapacity” refers only to the mental abilities of an injured victim. If a person suffers severe physical injuries in an accident but otherwise remains mentally capable of making decisions, they are not considered to be incapacitated. 

On the other hand, when a family member suffers brain injuries or any other injury that makes them mentally incapable of pursuing a lawsuit, a legal guardian with power of attorney can do so on their behalf. Find out about incapacitated victims’ legal options and rights to learn if you are eligible to take legal action on their behalf.

Determining When Someone is Incapacitated

Section 45 of Ontario’s Substitute Decisions Act, 1992 and Section 4 of the Health Care Consent Act, 1996 define incapacity as someone who lacks the mental ability to make personal care and health decisions for themselves and who doesn’t understand the consequences of their choices.                                 

 Examples of incapacity include someone who sustained traumatic brain injuries in an accident or a child who sustained birth injuries.                  

Therefore, an incapacitated person may be any one of the following:

  • An infant
  • A child under 16
  • A person with developmental disabilities
  • A person with severe brain injuries
  • A person in mental decline

However, except for infants and children under 16, you cannot simply decide that a family member is incapacitated and make decisions for them. Ontario law assumes adults have the mental capacity to make decisions unless otherwise proved.

You can request a capacity assessment of a family member from a professional, known as a capacity assessor, to determine a person’s capacity for legal purposes. If incapacity is so proven, you can apply to the court to be appointed as litigation guardian before filing, for example, a personal injury claim against negligent hospital staff.

What Is the Role of a Litigation Guardian?

A litigation guardian has the legal authority to make decisions that are in the best interests of a personal injury victim incapable of making those decisions themselves. Generally, the litigation guardian will appoint a personal injury lawyer to file an incapacitated victim lawsuit. Other decisions that a litigation guardian can make include the following:

  • Accept a settlement
  • Proceed to trial
  • Discontinue a claim

How to Act as a Litigation Guardian in Ontario

Anyone over the age of 18 (parents may be younger) and appointed by the court may stand as litigation guardians provided they themselves are not otherwise incapacitated. If applying in Ontario, the litigation guardian must also be a resident of Ontario.

Generally, a litigation guardian has grounds for their authority through kinship, marriage, or domestic partnership. The applicant may be a legal guardian, parent, spouse, partner, or other family members. When applying to an Ontario court to be appointed as the litigation guardian of an incapacitated person, you must provide the following information:

  • Nature and date of the cause of action
  • Nature and extent of disability
  • Residence of the incapacitated person
  • Relationship to the person under disability and residence in Ontario

You must also execute an affidavit stating the following:

  • You consent to act as litigation guardian
  • You are the proper person to be appointed
  • You are not an interested party in the proceedings that are against the best interests of the person under disability
  • You know that you may incur unrecoverable costs

Did you know?

An adult who is unable to make their own decisions may have a legal guardian appointed by a court. A person unable to make medical or financial decisions for themselves may require a guardian to act on their behalf.

Dealing with Canadian Lawsuits of an Incapacitated Victim? Contact Diamond Law Today.

As defined by applicable legislation, an incapacitated victim is unable to assert his or her rights and claim compensation for the losses caused by the negligent acts of another party. As a concerned family member or legal guardian, you may have the right to act as litigation guardian and hold the parties liable for financial damages.

However, you might encounter difficulties navigating Canadian lawsuits of this nature, so it would be an excellent idea to go to the Diamond & Diamond website for helpful information.

While you’re there, you might want to get one of our experienced Diamond Law personal injury lawyers give your case a free expert evaluation. We can help you navigate the intricacies of incapacitated victim lawsuits in Canada.

Are you ready to take the next step? Give us a call at 1-800-567-HURT or contact us today and let’s talk.

Is your loved one suffering from an injury that has left them incapacitated? Contact the experienced personal injury lawyers from Diamond & Diamond to help you file a lawsuit.

Leave a Reply


FAQs on Filing a Lawsuit for an Incapacitated Victim

Who determines if a person is incapacitated?

What does incapacitated mean in power of attorney?

What constitutes severe emotional distress?




Get the help you deserve


Call NOW for a free consultation


Diamond & Diamond Ontario Head Office

255 Consumers Road, 5th Floor, Toronto, Ontario

>> Learn More

Diamond & Diamond Alberta Head Office

4246 97 Street NW, Unit 103, Edmonton, Alberta

>> Learn More

Diamond & Diamond British Columbia Head Office

1727 West Broadway, Suite 400, Vancouver, British Columbia

>> Learn More


168 Bayfield Street


1331 Macleod Trail SE, Suite 645


2713 14 St SW


600 Crowfoot Crescent NW #240


4246 97 Street NW, Unit 103


256 Pall Mall St, Suite 102

Oakville / Mississauga

2939 Portland Drive, Suite 200


50 Richmond Street E, Unit # 108 B


955 Green Valley Crescent, Unit 315


31 Larch Street, Unit 300


1104 – 13737 96 Ave, Surrey, BC V3V 0C6


255 Consumers Road, 5th Floor


1678 Bloor Street, Suite 302


1727 West Broadway, Suite 400


13158 Tecumseh Rd. E. Unit 3B