After a catastrophic event, an injured adult may be unconscious, unable to communicate, or unable to understand important choices. The family faces two urgent questions: Who can make decisions, and who can protect the legal claim?
Short answer
There is no single nationwide answer. Being a spouse, parent, emergency contact, health-care surrogate, or Social Security representative payee does not automatically confer authority over a lawsuit or settlement.
Depending on the documents, state law, and court, an agent under a durable power of attorney, guardian, conservator, “next friend,” or guardian ad litem may have a role. Each role has limits. Federal Rule of Civil Procedure 17(c), for example, addresses representation and court protection for an incompetent person in federal litigation. State procedures control many other cases.
The claim still belongs to the injured person. Identify the decision-maker early, preserve evidence and deadlines, and obtain jurisdiction-specific advice before anyone signs a release or distributes money.
This guide provides general information, not legal, medical, financial, or estate-planning advice. Capacity, authority, filing deadlines, and settlement procedures vary by state and by court. An emergency requires medical help first; call 911 when appropriate.
Table of contents
- Capacity is decision-specific—not just a diagnosis
- The roles families often confuse
- Who can start or manage the injury claim?
- What happens when family members disagree?
- Does a court have to approve the settlement?
- A practical action plan
- Example: a truck-crash survivor in a coma
- Frequently asked questions
- Takeaway
1. Capacity is decision-specific—not just a diagnosis
A coma may make the problem obvious. Other cases are less clear. A brain injury can affect memory, judgment, attention, or language while leaving other abilities intact. Someone may make simple choices but not understand a broad liability release.
“Capacity” can also mean different things in different settings. The test for consenting to treatment may differ from the test for signing a contract, executing a power of attorney, managing money, or directing litigation. Courts may consider medical assessments, the person’s ability to understand and communicate a choice, whether the impairment is temporary, and whether less restrictive help would work. When the person can participate, they should be involved as fully as reasonably possible.
2. The roles families often confuse
One relative may hold several roles, but the titles are not interchangeable.
| Role | What the role may cover | What it does not automatically establish |
|---|---|---|
| Health-care agent or surrogate | Treatment decisions under a health-care directive or state surrogate law | Authority to hire counsel, file suit, settle a claim, or control settlement funds |
| HIPAA personal representative | Access to and control of protected health information within the representative’s legal authority | General authority over the person’s property or litigation |
| Agent under a power of attorney | The financial or legal acts granted by the document and applicable state law | Authority beyond the document; a non-durable power may not remain effective after incapacity |
| Guardian or conservator | Court-defined authority over personal or financial matters | Unlimited authority; the order may reserve rights or require court approval |
| Next friend | Ability to prosecute or defend a particular lawsuit for a person who cannot do so | Ownership of the claim or unrestricted power over the recovery |
| Guardian ad litem | Protection or evaluation of the injured person’s interests in a court matter | General control over treatment, benefits, or all finances |
| SSA representative payee | Receipt and management of Social Security or SSI payments for the beneficiary | Authority over the personal injury claim, other assets, contracts, or medical decisions |
Medical records: HIPAA follows legal authority
Under the federal HIPAA Privacy Rule, a person authorized by state or other applicable law to make health-care decisions is generally the patient’s “personal representative” for information relevant to that authority. The U.S. Department of Health and Human Services explains that limited authority means limited access; special exceptions apply in some abuse, neglect, or endangerment situations. Family involvement alone may permit some disclosures but does not necessarily create a right to the complete record.
Social Security: representative payee is a separate appointment
The Social Security Administration appoints a payee to manage Social Security or SSI payments for someone unable to manage them. SSA says a power of attorney or joint account is not the same as appointment as payee. Nor does payee status itself create authority over an injury lawsuit.
3. Who can start or manage the injury claim?
Start with existing documents. A durable financial power of attorney may authorize an agent to retain counsel, pursue claims, or conduct litigation. Its wording, activation, and governing law matter. Do not assume that a generic form—or health-care power alone—covers settlement.
If there is no adequate power of attorney, a court appointment may be necessary. States use terms such as guardian, conservator, next friend, or guardian ad litem differently. The order itself should be checked: it may grant authority over the person, the estate, litigation, or only a narrow issue.
In federal civil cases, Federal Rule of Civil Procedure 17(c) says a general guardian, committee, conservator, or like fiduciary may sue or defend for an incompetent person. If there is no duly appointed representative, the person may sue by a next friend or guardian ad litem, and the court must appoint a guardian ad litem—or issue another appropriate order—to protect an unrepresented minor or incompetent person. That federal litigation rule does not create a universal guardianship system or replace state law on capacity and fiduciary authority.
The governing rules may come from the forum, the injured person’s home state, another state connected to the event, or a combination—especially in an interstate truck crash.
Four state examples—not a nationwide rule
These examples reflect official materials reviewed on October 12, 2026. They illustrate variation; they are not a complete statement of any state’s law.
| Jurisdiction | Illustrative rule | Practical point |
|---|---|---|
| Texas | Texas Rule of Civil Procedure 44 addresses suits by a next friend for a person who has no legal guardian. Rule 173 limits a guardian ad litem’s role and calls for appointment when a next friend or guardian appears adverse to the represented party or the parties agree. | A next friend and a guardian ad litem perform different functions; a conflict can trigger extra court protection. |
| Tennessee | Tennessee Rule of Civil Procedure 17.03 provides for an infant or incompetent person to act through a general guardian, conservator, or similar fiduciary and addresses next-friend and guardian-ad-litem protection when no such representative exists. | The correct representative and any required appointment must be resolved under Tennessee procedure. |
| Wisconsin | Wisconsin Statutes § 803.01(3) addresses appearance through a guardian or guardian ad litem when a party is a minor or the court has reason to believe the party is incompetent. Section 807.10 addresses court approval of settlements for minors or individuals adjudicated incompetent. | Litigation representation and settlement approval are related but separate questions. |
| Missouri | Missouri Supreme Court Rule 52.02 supplies procedures for civil actions by or against minors and persons who are mentally or physically unable to manage their own litigation. | A court may need to appoint a next friend or guardian ad litem for the particular action. |
4. What happens when family members disagree?
Relatives may disagree about whether to sue, which lawyer to hire, whether to accept an offer, or how settlement money should be protected. Review the actual powers of attorney, directives, court orders, and appointments. Then identify conflicts: a proposed representative may have a separate claim, expect reimbursement for caregiving, face liability, or disagree with the injured person’s known wishes.
The lawyer’s client is ordinarily the injured person—not every relative who communicates with the firm. A lawyer dealing with diminished capacity generally seeks to maintain a normal lawyer-client relationship as far as reasonably possible. If the person faces substantial harm and cannot adequately act in their own interest, applicable professional-conduct rules may permit or require protective steps. The exact ethics rule is state-specific.
If relatives claim competing authority, a court may define the role, require safeguards, or appoint a neutral representative. Do not resolve the dispute by racing to sign an insurance release.
5. Does a court have to approve the settlement?
Sometimes—but not in every jurisdiction or every case. Approval may depend on whether the person has been judicially adjudicated incapacitated, the type of representative, whether a lawsuit is pending, the amount and structure of the settlement, and the court’s rules.
A court reviewing a protected person’s settlement may examine liability, damages, fees, liens, conflicts, and the plan for the recovery. It may require medical evidence, a guardian ad litem’s report, a restricted account, trust, or another safeguard. Requirements vary sharply.
Approval is not a formality: a release can permanently end the injured person’s rights. Planning may also involve insurance reimbursement, Medicare or Medicaid, benefits, taxes, long-term care, and fiduciary reporting.
6. A practical action plan
Step 1: Put medical safety first
Follow the treating team’s instructions and identify the person whom providers recognize for health-care decisions. Do not delay emergency treatment while sorting out litigation authority.
Step 2: Gather authority documents
Locate powers of attorney, directives, guardianship orders, trust documents, benefit notices, insurance policies, and court papers. Keep originals safe and make readable copies.
Step 3: Build a role-and-scope list
For each proposed decision-maker, note the source, effective date, triggering event, expiration, and exact powers. A title without the underlying document is not enough.
Step 4: Preserve the injury claim immediately
Authority disputes do not stop evidence from disappearing or deadlines from running. Preserve photographs, vehicles and products, video, electronic data, witness information, police or incident reports, employment and wage records, medical records, bills, and correspondence. Send preservation requests through counsel when appropriate.
Step 5: Identify every potentially controlling deadline
Personal-injury limitation periods differ by state and claim, and government claims may have shorter notice rules. Tolling for incapacity is not automatic everywhere. Insurer negotiations usually do not extend a filing deadline unless a binding rule or agreement says so.
Step 6: Obtain the right appointment if needed
Counsel can determine whether an existing agent can act or whether a guardianship, conservatorship, next-friend appointment, or guardian ad litem is required.
Step 7: Clarify the client and conflicts
Ask the lawyer to confirm in writing whom the firm represents, who may receive confidential information, who gives instructions, and how disagreements will be handled. Family members with separate claims may need separate advice.
Step 8: Plan for settlement before agreeing to one
Confirm who may sign, whether court approval is required, how fees and liens will be reviewed, and where funds may be deposited. Do not put the recovery into a relative’s personal account.
7. Practical example: a truck-crash survivor in a coma
Suppose a commercial truck collision leaves an adult in a coma. The spouse is listed as emergency contact and has a health-care power of attorney, but no one can find a financial power. An adult child begins speaking with the trucking company’s insurer.
The spouse may control treatment and related records without having power to settle the claim. The adult child’s family relationship and insurer contact do not create litigation authority. Counsel would review the documents, determine the governing law, preserve truck evidence, and decide whether a court appointment is needed.
If the patient later regains sufficient capacity, authority may return to the patient or a protective order may need revision. If the patient dies, state survival and wrongful-death law determine what continues and who may act.