Who Can Represent a TBI Victim in California When They Can’t Advocate for Themselves

When a traumatic brain injury leaves a person unable to make decisions or participate in their own legal claim, someone else must step in to see to their medical care, financial interests, and legal rights. Who is allowed to do this in California depends on whether the injured person is a minor or an impaired adult and whether a formal court appointment has been made. Knowing how to proceed and moving quickly make the difference between a fair recovery and losing money and legal rights.

Below, the California trial attorneys at Kalfayan Merjanian, LLP, take a look at the options available, what they allow a caregiver to do, and the practical steps needed to secure and preserve compensation for the injured person. If your loved one suffered a TBI because of another party’s negligence, give us a call to speak with one of our lawyers experienced in representing victims of catastrophic injuries in California.

Injured Minors (under 18)

When a child under 18 years old is injured, their claim is typically brought by a parent or guardian ad litem (GAL) acting as the minor’s representative. A GAL is often appointed in cases where the legal rights of a minor may be affected. The role of the GAL is to represent the minor’s best interests in litigation and settlement.

If both parents are available and acting together, they commonly file suit on the child’s behalf, but the court still oversees settlements to protect the child’s interests. Any settlement of a minor’s personal injury claim by an adult (known as a “minor’s compromise”) typically requires court approval. The court reviews whether the settlement is fair and may order the funds placed in a blocked account or trust for the child.

Custodial status and any existing guardianship can play an important role. If the parents are unmarried, custody questions can affect which parent may sign settlement documents. If in doubt, petitioning for a GAL is the safe route.

Incapacitated Adults

For adults who lack legal capacity due to a TBI, California recognizes several avenues to pursue a claim on their behalf:

• Conservator (Probate conservatorship) — A conservator of the person or the estate appointed under California probate law may bring or defend litigation and can sign settlement documents on behalf of the conservatee. Where long-term incapacity is present, a conservatorship is the principal mechanism for giving someone legal authority to manage money and pursue legal claims.

• Guardian ad litem (GAL) — If an adult is “incompetent” for litigation purposes but has no conservator yet, the court may appoint a GAL to represent the incapacitated person’s interests during the lawsuit. The California Code of Civil Procedure (CCP §372) authorizes the appointment of a GAL for minors and incapacitated adults. This section of the law has been recently updated to clarify when the appointment of a GAL is appropriate.

• Next friend — A “next friend” (often a family member) may initiate litigation on behalf of a minor or incompetent adult when no formal guardian or conservator exists. The next friend is not a party or court-appointed fiduciary, so courts often require a more protective approach, such as the appointment of a GAL or conservator as the case progresses.

How the Type of Representation Affects Settlements and Where the Money Goes

• Minor’s settlements: After court approval, money is generally protected in a blocked account, structured settlement, or trust. Courts supervise attorney fees and disbursements for the child’s benefit.

• Conservatee settlements: The conservator must manage settlement proceeds for the conservatee’s needs, and large sums may require an accounting or approval by the court, depending on local practice. A conservator can also fund a special needs trust or structured settlement to preserve benefits like Medi-Cal or SSI.

• Next friend filings: if a next friend files suit, courts typically move to appoint a GAL or conservator to avoid conflict and ensure the incapacitated person is fully protected.

Practical Roadmap for Caregivers Pursuing Legal Claims

1. Prioritize medical care and documentation. The medical record is the foundation of a personal injury claim, and documents such as ER notes, neurology reports, imaging, rehab plans, therapy notes, and cognitive testing will be instrumental in building a case proving the extent of the injury and its impact on the victim’s life.

2. Preserve evidence. Request and preserve accident reports, photos, surveillance requests, and witness contact info. Send preservation letters for video evidence immediately.

3. Talk to an experienced California personal injury attorney who handles TBI cases. By talking to a TBI lawyer early, you’ll have a better idea of whether you should seek a conservatorship, petition for a GAL, or proceed as next friend to file a claim in a timely manner.

4. If the victim is a minor, expect a guardian ad litem appointment and a minor’s compromise hearing before any settlement funds are distributed.

5. If the victim is an adult and lacks capacity, prepare to file for conservatorship of the person, the estate, or both so that a conservator can file a claim and manage funds. Your attorney can usually file the personal injury claim in parallel with a conservatorship petition.

Why You Need a Lawyer Experienced in TBI Matters

These cases require both medical-legal expertise and procedural skill. A capable attorney will be able to evaluate capacity issues and promptly pursue the correct appointment, such as a GAL or conservator. They know what evidence to preserve and will be sure to file suit within California deadlines, if necessary. A TBI lawyer understands how to work with neurologists, neuropsychologists, and life-care planners to calculate future needs and lifetime costs. They can also advise you on using special needs trusts, structured settlements, or blocked accounts to maintain public-benefit eligibility while ensuring long-term care. A lawyer experienced in representing incapacitated individuals will also know the process for court approvals of a minor’s compromise or conservatee settlement so the funds are protected.

Practical Takeaways for Caregivers

If the injury is temporary and immediate decisions are needed regarding issues like medical care or whether to settle a claim, a temporary conservatorship or GAL petition can be filed quickly. For long-term incapacity, pursuing a full probate conservatorship enables the conservator of the estate to better manage settlement proceeds and supervise ongoing care.

Courts are protective. Even when a conservator signs a settlement, the court often reviews large or unusual settlements to ensure funds are used for the incapacitated person’s benefit. Expect judicial oversight.

Contact Kalfayan Merjanian, LLP

If you are a parent, caregiver, or otherwise looking after someone who has suffered a traumatic brain injury in a California car accident, slip and fall, or medical error, contact Kalfayan Merjanian, LLP for a free consultation to discuss how we may be able to help ensure your loved one is cared for and that justice is served.