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Who can file a catastrophic injury or death claim

Where somebody has died, statute names the people entitled to sue, and our wrongful death guides set that out. The harder case is the one this page is about: somebody survived, cannot make decisions, and needs another person authorized to act for them. That authorization has conditions, and one of them changes how a settlement ends.

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By Michael Mangione, Legal Research Editor Last reviewed August 1, 2026 19 min read
If somebody died
Statute
A list of entitled people, set out on our wrongful death guides.
If somebody survived
Appointment
Another person must be authorized to bring the claim for them.
Three roles
Not equal
Guardian, conservator of the estate, and guardian ad litem differ.
Settling
Approval
A representative can compromise only with the court's approval.

Key takeaways

  • Being next of kin is not authority. Acting for an injured adult generally requires an appointment, not a relationship.
  • Raise capacity at the first conversation. It changes who signs, what has to happen first, and how long the end takes.
  • A settlement is not final on a handshake. Where the claimant cannot consent, a court's approval is generally required.
  • The court can weigh divergent interests. A relative's position and the injured person's are not automatically the same.
Editorial content, not legal advice

This guide is written and reviewed by our editorial team to be accurate and current. It is general information, not legal advice, and reading it does not create an attorney-client relationship. The statute quoted here is one state's, used to show a mechanism that exists in some form in most states. It is not a statement of the law where you live, the titles for these roles differ between states, and so do the approval requirements. Who may act for a particular person is a question for an attorney licensed in that state. We are a referral service and are paid by attorneys.

01 Two different questions under one heading

Quick answer

The first is who is entitled to bring a claim after a death, which statute answers with a list. The second is who may bring a claim for a living person who cannot instruct anybody, which statute answers with a procedure. They are different problems with different solutions.

Most writing on this subject answers the first and stops, which leaves the families in the worst cases with nothing useful. If you are searching for who can file a wrongful death claim, the answer is a statutory list and the next section points you to it.

This page spends its length on the other question, because the site already answers the first properly and because catastrophic injury is precisely the category where the injured person often cannot answer for themselves.

Bottom line: after a death you look for a list. After a survival with lost capacity, you look for an appointment.

02 If somebody died, briefly

Quick answer

Each state names the people who may sue, usually a spouse, children and parents, sometimes in an order of priority, and sometimes with a personal representative bringing the action on their behalf. There is frequently a second claim belonging to the estate rather than the family.

That second claim is the part most often missed, and it is set out in full elsewhere rather than repeated here. Anybody researching who can file a wrongful death claim needs both halves, not only the list of relatives.

  • The list is statutory, not intuitive. Some people who were plainly close to the person who died are not on it, which is painful and is nonetheless the position.
  • Unmarried partners are frequently excluded. A few states include registered or domestic partners; many do not include an unmarried partner at all.
  • Who sues is not always who benefits. In several states a representative brings the action for the benefit of the named family members.
  • Two claims mean two sets of rules. Which is why the interaction is dealt with properly on a dedicated page.

Our guides to catastrophic wrongful death claims and to wrongful death representation cover the lists, the two claims and where the money goes. The rest of this page is about the living.

Blue and white spiral stairs
The other half
Surviving, and unable to act.

03 If somebody survived and cannot act

Quick answer

Then the claim still belongs to them, but they cannot bring it themselves. Somebody else has to appear on their behalf, and the mechanism is an appointment rather than a family relationship. Being a spouse or a parent is not by itself authority to sue.

One state's procedural statute puts the requirement plainly enough to be worth reading, as an example of a mechanism that exists in some form almost everywhere.

One state's procedure, as an illustration
That person shall appear by a guardian, a conservator, or a guardian ad litem
California Code of Civil Procedure section 372, subsection (a)(1), current text

It provides that When a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case. Note the structure. It is not permissive. Where capacity is absent the appearance must be through one of those routes, which means somebody has to be in place before the case can properly proceed. Read the section

This is why the question of who can file an injury claim for somebody who cannot instruct is answered by a procedure rather than a list. It also explains a delay families find baffling: nothing much can happen until the appointment exists.

04 Three roles that are not the same thing

Quick answer

The statute quoted above names three: a guardian, a conservator of the estate, and a guardian ad litem appointed by the court. They arise differently, they last for different periods, and they are not interchangeable.

Titles vary by state, so treat these as categories rather than as universal labels.

  • A guardian. Broadly, somebody appointed to make decisions for a person who cannot, usually through a separate court process that takes time.
  • A conservator of the estate. Concerned with property and financial affairs, which is what a damages claim ultimately is.
  • A guardian ad litem. Appointed for the litigation itself, by the court hearing it, and confined to that role rather than to the person's wider life.
  • They can coexist. The statute contemplates a guardian ad litem being appointed even where a guardian or conservator of the estate already exists.

The practical significance is timing. A litigation appointment can generally be obtained faster than a full guardianship, which matters when a filing deadline is approaching and no one yet has authority to file.

Spiral staircase
Not final
Until a judge says so.

05 Why a settlement needs the court's permission

Quick answer

This is the most consequential thing on the page and it surprises almost everybody. A representative acting for somebody without capacity can agree a settlement only with the approval of the court. Until that approval is given, the agreement is not concluded.

The same statute says so directly, in the subsection immediately after the one quoted above.

Same section, the power to compromise
With the approval of the court in which the action is pending
California Code of Civil Procedure section 372, subsection (a)(3), current text

It provides that the representative shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise. The power to settle and the approval are stated together, not separately, which is the point. A representative does not have one without the other.

Two consequences worth planning for. The end of a case takes longer than a family expects, because a hearing has to be listed after the deal is struck. And a court asked to approve is entitled to look at the terms, including the deductions, which is a protection rather than an obstacle.

06 Where the money goes once approved

Quick answer

Somewhere more supervised than a relative's bank account, and this catches families off guard. The same subsection directs that money for the benefit of such a person be paid and delivered as another body of law provides, which in practice means a held or managed arrangement rather than an ordinary transfer to whoever brought the claim.

Families are sometimes upset by this, and it is worth understanding as protection rather than suspicion.

  • The statute points elsewhere. It directs payment to be made as provided by a named chapter of another code, which sets up the mechanism.
  • Supervision is the norm. Arrangements exist to hold funds for the injured person rather than releasing them to whoever brought the claim.
  • It affects planning. How money is held interacts with future care costs and with any benefits the person receives, so it is a question for advice.
  • Ask early, not at the end. The structure is easier to arrange before a settlement than to unpick afterwards.

We are deliberately not describing the vehicles used to hold such funds, because that is financial and tax territory rather than ours, and getting it wrong would be worse than saying nothing.

Brown wooden bench on gray concrete floor
Divergence
The court may look for it.

07 When the representative's interests diverge

Quick answer

The law does not assume that a relative's interests and an injured person's are identical. The same section requires a court, in choosing a particular representative for a minor, to consider whether their interests and the child's diverge.

This is uncomfortable and it is also sensible, because the situations where it matters are recognisable.

  • Where the relative may share blame. A parent driving the car in which a child was hurt is in an obvious position of conflict.
  • Where families disagree. More than one person may want the role, and their views on settling may differ sharply.
  • Where money is a pressure. A household under financial strain has an interest in settling that is not identical to the injured person's.
  • Raising it is not an accusation. It is a structural question the court is entitled to ask, and better asked early than late.

A note on sourcing. We have described this requirement rather than quoting it, because the complete sentence containing it appeared in an older version of the statute rather than in the current text we read. That is a small distinction and we would rather flag it than blur it.

08 How to establish who may act

Quick answer

Five steps, and the first belongs in the first conversation with any attorney. Capacity is not a detail to be sorted out later, because it determines who can sign anything at all.

If you are acting for somebody else, say so at the outset rather than being asked. The question of who can file an injury claim on behalf of another person is settled at the beginning of a case or it becomes a problem in the middle of one.

1

Say plainly that the injured person cannot instruct

Or that you are unsure. It changes who signs the retainer, and a firm that glosses over it is storing up a problem.

2

Ask what authority you actually hold

Next of kin, a health care document, an existing guardianship, or nothing formal. These are very different starting points.

3

Ask which appointment is needed, and how long it takes

A litigation appointment is usually quicker than a full guardianship. If a deadline is near, that difference matters.

4

Ask whether anybody's interests may conflict

Particularly where a family member was driving, or where relatives disagree about settling.

5

Ask what the approval process at the end involves

Because a settlement for somebody without capacity generally needs a court's approval, and that adds time you should know about now.

Deadlines interact with all of this. Our guide to limitation periods explains why the clock may be suspended for a person without capacity, and why that suspension is not something to rely on.

Painting of stairs with white wooden frame
Warning signs
Nobody asked who signs.

09 Red flags

Quick answer

A retainer signed by a relative with nobody asking what authority they hold, no mention of an appointment, no mention of approval at the end, and no question about whether anybody's interests conflict.

Each of these creates a problem that surfaces at the worst moment, which is when a settlement is supposed to complete. The same applies on the other side of the title: getting who can file a wrongful death claim wrong is discovered late and expensively.

How a claim gets brought by the wrong person

Nobody asked who can sign. Where the injured person cannot instruct, the question of authority comes first, not later. Next of kin treated as authority. A relationship is not an appointment, and the two are frequently confused. Approval never mentioned. If a settlement for somebody without capacity needs court approval, a family should hear that at the start rather than at the end. No conflict check. Where a relative was driving, or relatives disagree, the choice of representative is a live issue. The money question left to the end. How funds will be held affects care and benefits, and is easier to plan than to unwind.

A closing note on tone, because this page describes safeguards and could read as bureaucratic obstruction. It is the opposite. The appointment requirement and the approval requirement exist because somebody who cannot protect their own position needs a court to look at the deal. Slower is the price of that, and it is worth paying. You can read how we match people with attorneys, and a free case review costs nothing.

How we vet every lawyer

This is a standard rather than an ordering. An attorney either clears it or does not.

  • Active, discipline-free license

    Verified good standing with the state bar, with no unresolved discipline on record. You can check this yourself too.

  • Asks about capacity in the first call

    Because it determines who can sign anything, and a firm that skips it is creating a problem for later.

  • Explains the approval step up front

    Including that it adds time, so a family is not surprised when a settlement does not complete on signature.

  • Clear contingency terms

    Fees and case costs put in writing up front, so you know exactly how it works before signing.

Tell us what happened and we will only match you when a case genuinely fits.

Help in all 50 states

MVA Lawyer Network is a nationwide guide. Wherever it happened, we can connect you with an independent attorney licensed in that state.

Northeast Southeast Midwest Southwest West Coast Mountain West Gulf States Alaska and Hawaii

This is a subject where a single state's statute illustrates a mechanism rather than stating a rule, which is why only one is quoted here and why it is labeled as an illustration. States differ on who may bring a death claim and in what order of priority, on whether an unmarried or registered partner is included, on whether a representative sues for the family or the family sues directly, on the titles and procedures for appointing somebody to act for a living person without capacity, on whether a court must approve a settlement and at what threshold, and on how funds for such a person must be held afterwards. Nothing here is a statement about the law where you live. The deadline for bringing a claim, known as the statute of limitations, is running now.

Sources and authorities

One state statute, quoted from the version named and cross-checked against three further reproductions.

Appearing and settling for a person without capacity

  • California Code of Civil Procedure section 372, current text. Source of subsection (a)(1), requiring that a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof; and of subsection (a)(3), giving that representative power, with the approval of the court in which the action or proceeding is pending, to compromise the claim, to agree to the order or judgment, and to satisfy, release or discharge any claim pursuant to that compromise, and directing that money or property for the benefit of such a person be paid and delivered as provided by a named chapter of the Probate Code. Quoted text was cross-checked against a 2022 codification, FindLaw and a further public reproduction. Full section.

On currency, and a numbering change. That section has been amended, and subsection numbering has moved. Older codifications used the phrase incompetent person where the current text refers to a person who lacks legal capacity to make decisions. We have quoted the current wording and identified the subsections as they appear in it. Anybody comparing our quotation against an older reproduction should expect the labels to differ even where the substance does not.

Something described rather than quoted. Section seven notes that a court must consider whether a minor and a proposed representative have divergent interests. The complete sentence containing that requirement was located in an older codification rather than in the current text we read, so it is described in our own words and not presented as a quotation. That is a fine distinction and we would rather draw it than let a reader assume we had the current wording in front of us.

Why only one state, and what is covered elsewhere. One statute is quoted to show that this machinery exists and what it requires, not to tell any reader what applies to them. Titles, procedures and approval thresholds differ everywhere. The question of who may bring a claim after a death, the separate claim belonging to an estate, and where death claim proceeds go are all dealt with on the two wrongful death guides linked above, and the interaction with filing deadlines is on the limitation periods guide.

Our editorial standards

How we keep this guide accurate and worth trusting.

01

We took the half nobody covers

The death list is answered elsewhere on the site. The injured survivor who cannot act was not.

02

One statute, labeled as an illustration

It shows a mechanism that exists in some form widely. It is not anybody's law.

03

We flag described versus quoted

Where we only had older wording, we say so rather than presenting it as current.

04

We stay out of financial planning

How settlement funds are held affects benefits and tax. That needs a specialist, not us.

Michael Mangione, Legal Research Editor
Michael Mangione Verified editor
Legal Research Editor · Founder, The Mangione Group, Inc.

MVA Lawyer Network is edited by Michael Mangione, who has spent more than twelve years working inside contingency-based law firms, building intake departments, designing qualification frameworks, and studying how claims are screened and pursued from the first call through resolution. Intake scripts ask who is calling. They rarely ask whether that person can lawfully sign anything, which is the question that decides whether the next six months are wasted.

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Common questions, answered

General information, not legal advice. Who may act, and what approvals apply, differ by state, so check with an attorney licensed where it happened.

My husband cannot make decisions. Can I bring the claim?

Very likely, but generally not simply because you are married to him. Where an adult cannot instruct anybody, the usual route is an appointment: a guardian, a conservator of the estate, or somebody appointed by the court for the litigation itself. Section three quotes one state's statute setting that out. Raise it in your first conversation with an attorney, because it affects who signs the retainer and what has to happen before anything is filed.

What is a guardian ad litem?

Somebody appointed by the court hearing a case to stand in for a party who cannot act for themselves, confined to that case rather than to the person's wider affairs. It is usually the quickest of the available routes, which matters when a filing deadline is close. The statute quoted in section three contemplates one being appointed even where a guardian or a conservator of the estate is already in place.

Can a settlement be agreed without going to court?

Where the claimant cannot consent for themselves, generally not. The statute quoted in section five gives a representative power to compromise a claim only with the approval of the court in which the proceeding is pending. The power and the approval appear in the same breath. Practically, that means the case ends later than families expect, because a hearing must be listed after terms are agreed.

Why does approval take extra time?

Because a judge is being asked to look at the deal on behalf of somebody who cannot examine it themselves, and that requires the material to be prepared and a hearing to be found. It is a protection rather than an obstruction: the court can examine the terms, including what is being deducted. Knowing about it at the start rather than the end is the difference between a delay and a shock.

Does the money come to me as the parent or spouse?

Usually not directly. The statute quoted in section five directs that money for the benefit of a person without capacity be paid and delivered as provided by another body of law, which in practice means a supervised arrangement rather than a transfer to whoever brought the claim. How funds are held interacts with future care costs and with benefits, so it needs specialist advice, and it is far easier to plan before a settlement than to rearrange afterwards.

I was driving when my child was hurt. Can I still act for them?

It is exactly the situation where the question of conflicting interests arises, and a court choosing a representative for a child is entitled to consider whether their interests and the child's diverge. That is not an accusation and it does not necessarily disqualify you. What it does mean is that the issue should be raised openly and early with an attorney rather than discovered later, because a case built on the wrong representative causes real delay.

Who can sue after somebody dies?

Statute decides it, state by state, and the answer is a list rather than a procedure. Typically it reaches a spouse, children and parents, occasionally in a fixed order, and in some places the action is brought by a representative on their behalf instead of by them directly. A second claim, belonging to the estate rather than the relatives, often runs alongside. Both wrongful death guides linked from this page work through that properly; here the focus stays on people who survived.

We were together for years but never married. Am I included?

Frequently not, and this is one of the harder things about these statutes. A few states include a registered or domestic partner, and some recognize a person who believed in good faith that they were married. Many make no provision for an unmarried partner at all, regardless of how long the relationship lasted. It is a question to put to an attorney in your own state early, because the answer shapes everything that follows.

Do I have to pay anything up front?

Injury firms generally work on a contingency basis, meaning the fee is a percentage of what is recovered set out in the written agreement and there is nothing to pay up front. Case costs, meaning experts and records and filing fees, are a separate item from the fee, and the agreement should say plainly who carries them and what happens to them if the case does not succeed.

Is what I tell you private?

Yes. What you share in a case review is kept private and is used only to match you with an attorney who fits your situation. One distinction is worth understanding: true legal confidentiality, called attorney-client privilege, only attaches once you actually have an attorney-client relationship with a lawyer. Submitting a form to a referral service is not the same thing. If that matters to you, raise it directly with the attorney.

What does it cost to use MVA Lawyer Network?

Nothing. We are a free, independent referral service, not a law firm, and we do not give legal advice. Requesting a case review costs you nothing and puts you under no obligation. When a situation fits, we connect you with an independent attorney who reviews it directly, and we may be paid a referral fee by that attorney. That fee does not add anything on top of their percentage.

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