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Filing a Medical Malpractice Claim on Behalf of Someone Else

Filing a Medical Malpractice Claim on Behalf of the Injured Party

Incapacitated/disabled adults generally cannot file their own legal claims, which is why their guardian or designated power of attorney needs to act on their behalf to recover damages when they are the victim of medical malpractice.

Guardian vs. Power of Attorney

A guardian ad Litem, "GAL" is appointed by the court, by way of a court proceeding, to protect the incapacitated/disabled party’s personal and financial well-being when that individual is unable to make decisions about his/her health care, money, or other personal matters.  A GAL has a legal duty (fiduciary duty) to act in the best interest of the individual (also known as “ward’).

For example, John was a diabetic who was hospitalized after breaking his leg.  He was conscious and alert until he was given an overdose of insulin.  The insulin overdose left John in a permanent vegetative state.  John did not have an advanced directive (discussed more fully below) or other legal document providing for his care in the event he was unable to make any kind of decisions on his own behalf.  John’s sister, Karen, petitioned the court for guardianship over John, which the court granted.  Karen can now act in John’s stead in all matters concerning John’s personal affairs, healthcare, and financial matters.  Karen also has the legal authority to sue the negligent healthcare providers responsible for John’s permanent vegetative state.

Generally, there are four different types of power of attorneys:

A limited power of attorney gives someone else the power to act in your stead for a very limited purpose.  For example, a limited power of attorney could give someone the right to handle all aspects of a real estate transaction because you are unavailable to do so yourself.  A limited power of attorney typically ends with the conclusion of the specific transaction set forth in the written power of attorney.

A general power of attorney is comprehensive and gives all the powers and rights, that you would otherwise have yourself, to the individual you designate as your power of attorney.  Unless you rescind the powers given to the individual, a general power of attorney typically ends upon your death or incapacitation.

A durable power of attorney can be either general or limited in its powers; however, it will remain in effect even if you become incapacitated.  Unless you rescind the power of attorney while you are not incapacitated, a durable power of attorney will remain in effect until your death.

A springing power of attorney springs into action once you become incapacitated. In other words, it does not become effective until you are incapacitated.

Uniform Power of Attorney Act (UPOAA)

This act proposed a uniform standard for power of attorney laws in every state, and that there would be basic legal elements which has to be followed when implementing a power of attorney. Generally, uniform acts must be adopted by the individual state.  North Carolina has adopted the UPOAA.

The UPOAA provides that any "natural person having the capacity to contract may execute a power of attorney." The power of attorney must contain the date of execution and it must be signed by the principal or by another adult in the principal’s presence and under the direction of the principal.  The power of attorney is signed and acknowledged before a notary public or is signed by two witnesses.  If the durable power of attorney is signed by two witnesses rather than a notary public, the witnesses must be adults and cannot include the attorney-in-fact representing the principal. (

The most significant difference between a power of attorney and a person with guardianship over another is that an individual designates his/her own power of attorney while they are still of sound mind to make their own decisions.

Power of Attorney for Medical Decisions

An advanced healthcare directive, living will, or medical power of attorney designates the person who you want to make healthcare decisions for you when you become unable to make them for yourself.  It details an individual’s wishes regarding medical treatment and intervention.  Laws governing advanced healthcare directives may differ from one state to another.

In North Carolina, two witnesses and a notary public are required for a living will or healthcare power of attorney.  Neither are valid if the subject of the living will or healthcare power of attorney is pregnant.

For other North Carolina State statutes regarding power of attorneys and advanced healthcare directives see N.C.G.S. §§ 32A-15 through 32A-34.

Generally, an individual who is the GAL or designated medical power of attorney may file a medical malpractice claim on behalf of an incapacitated individual.  However, only an appointed GAL can file a lawsuit on behalf of the injured party.  Either the POA or GAL can request medical records on behalf of the injured party which is the first step in determining if there is a viable claim.  If a claim is viable the POA can petition the court to become the GAL for bringing the lawsuit.  Depending on the severity of the injured parties disability the GAL can be appointed via motion by the clerk or a hearing will have to be scheduled in front of the judge.

Once the GAL is appointed he/she will make the decisions regarding the litigation.  These decision include whether to accept or reject any settlement offers made by the defense. Of note, minors (individuals under 18) are considered incapacitated in the eyes of the law since they are unable to sign a contract.  As such, even though the minor Plaintiff is able to communicate their wishes regarding the cases, a GAL will need to be appointed to file a Complaint (lawsuit).  It is also possible to substitute a GAL after the lawsuit has been filed.  There are multiple reasons to substitute a GAL after suit has been filed and most times the defense will consent to the change.

Schedule a free consultation with one of our medical malpractice attorneys to learn more about your role in your loved one’s medical malpractice claim and how you can start the malpractice claim process.  Contact our office 704-714-1450.  There is no fee for an initial consultation.


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