Brain injury can render a person incapable of managing their property and their personal affairs. Where that brain injury is caused by medical negligence, the responsible defendants are liable to compensate the plaintiff for anticipated expenses associated with the management of a substantial award of damages. Typically, large damages awards in medical malpractice cases are generated primarily by the assessment of future care needs. Future income loss may also be a very large component of the assessment of damages. Impaired brain function which precludes the injured person from managing large sums means that others will have to step in to manage the estate on their behalf. Considerable expense may be associated with this process for the person charged with managing the funds and the oversight of the process by the Courts and the Public Trustee and Guardian.
Under the Rules of Civil Procedure, the injured person is considered a person under disability when the person is “mentally incapable”, as defined in section 6 or 45 of the Substitute Decisions Act, 1992.1 A person may be incapacitated from managing personal care or managing property. Those so incapacitated will have their decisions made by guardians of their property and guardians of their person. The need for guardianship and the costs associated with it are payable by the defendant when the evidence establishes that the need arises from the defendant’s wrongdoing.
This paper will consider the damages that should be sought and awarded in connection with guardianship issues, in cases where the medical negligence renders a person incapable of managing their affairs. If the resulting brain injury precludes the plaintiff from managing funds, considerable assistance may be needed. Often, that assistance comes from multiple sources,
Paper: Damages Guardianship Issues