Who May Pursue An Injury Claim For An Incapacitated Adult

Attorney Answer

No — an unregistered live-in partner does not automatically outrank a sibling in California, and neither of you gets to settle this by relationship alone. When an injured adult can no longer manage his own affairs, the law does not rank his relatives. It requires a court to appoint someone to act for him.

Start with whose claim it is. The claim belongs to your brother, not to you and not to his partner. Cal. Code Civ. Proc. § 372(a)(1) provides that a person who lacks the legal capacity to make decisions must appear in an action through a guardian or conservator of the estate, or through a guardian ad litem appointed by the court. That is the whole mechanism: someone applies, and a judge appoints. A sibling can be appointed. So can a partner. So can a professional fiduciary. What a judge is deciding is who can properly protect the injured person's interests — not who lived at the same address.

The statute your brother's partner may have in mind is Cal. Code Civ. Proc. § 377.60. It says who may bring a claim for a person's death: subdivision (a) names the decedent's surviving spouse, domestic partner, children, and issue of deceased children, and, if there is no surviving issue, the persons who would be entitled to the decedent's property by intestate succession. Two things about it. It applies only where a person has died, and your brother is alive. And the term "domestic partner" carries a specific statutory meaning in California tied to registration, so whether an unregistered partner fits any category of that section is a question for a lawyer on the real facts. Either way, it is not the statute that decides who pursues a living person's injury claim.

Longer term, a conservatorship — a separate proceeding in the probate court — is the usual route when someone will need decisions made for him indefinitely. It is a different appointment from a guardian ad litem in the injury case, and one does not substitute for the other.

What you can do

1. Tell the attorney you already hired exactly what you have been told, and ask two direct questions: who is their client, and have they asked the court to appoint a guardian ad litem for your brother?

2. Look for anything your brother signed before the crash — a power of attorney, an advance health care directive, a will, or a trust. If one exists, it may already say who may act for him.

3. Preserve the records: the traffic collision report, his hospital and rehabilitation records, and anything showing his condition before and after. Ask his providers for copies in writing.

4. Ask a local attorney about a guardian ad litem for the injury case and, separately, about a conservatorship for the rest of his affairs.

5. Do not sign a settlement, a release, or any document on your brother's behalf unless a court has appointed you to do it.

Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. An injury claim runs on Cal. Code Civ. Proc. § 335.1: "Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another." Cal. Code Civ. Proc. § 352(a) can stop that clock while a person lacks the legal capacity to make decisions, but it looks at capacity at the time the claim accrued, and applying it to an incapacity caused by the crash itself is not something to assume. Treat the deadline as running. Have a local attorney confirm it against your brother's actual facts now.