When an older person is injured, whether in a fall on a badly maintained footpath, in a road traffic collision, or through poor care in a nursing home, it is very often a son or daughter who ends up carrying everything that follows. That can mean sitting in the emergency department, speaking to consultants and discharge planners, arranging home help or a change in living arrangements, raising a complaint with a nursing home or the HSE, and managing bills and paperwork on a parent’s behalf. Somewhere in among all of that, families begin to wonder whether the injury should have happened at all.
By the time an adult child contacts a solicitor, they usually have two questions. Is there a claim here, and am I entitled to bring it? The personal injury team here at McCarthy + Co Solicitors LLP regularly deals with families in this position. This short guide sets out some of the key things we often discuss with children of elderly parents.
Start with the question of capacity
Everything follows from one question: does your parent have the mental capacity to make decisions about a legal claim?
Irish law begins with a presumption that every adult has capacity. Under the Assisted Decision-Making (Capacity) Act 2015, capacity is assessed decision by decision, at the time the decision needs to be made. Age alone, a diagnosis of dementia, or a period of confusion after a serious injury do not, of themselves, mean that a person lacks capacity.
Where your parent has capacity
If your parent can understand the claim, weigh up the options, and give instructions, then the claim is theirs to bring. You cannot bring it for them, but you can play a useful role. Family members often:
- Attend the initial consultation with their parent, at their parent’s request.
- Gather photographs of the accident scene, the hazard, or any visible injuries.
- Take note of witness names and contact details before memories fade.
- Request CCTV footage promptly, before it is routinely overwritten.
- Keep a record of medical appointments, care costs, aids, and appliances.
- Help their parent describe the practical effect of the injury on daily life.
That last point is more important than people realise. An injury described as a “straightforward” fracture can, for an older person, mean the loss of independent living, and evidence of that loss needs to be presented carefully.
Where your parent does not have capacity
Where an adult is unable to make decisions about litigation even with support, proceedings are brought on their behalf by another person acting as their “next friend”. The next friend is named in the proceedings, swears an affidavit, and instructs the solicitor in your parent’s best interests.
Where a person lacks capacity across a broader range of decisions, the Circuit Court may appoint a Decision-Making Representative. The Decision Support Service oversees this system and provides plain-language guidance on the supports available.
One misunderstanding is worth flagging. An enduring power of attorney, or an informal arrangement whereby you manage your parent’s bank account, does not automatically entitle you to run a personal injury claim on their behalf.
Time limits
In most personal injury cases in Ireland, proceedings must be brought within two years of the date of the accident, or the date of knowledge of the injury, under the Statute of Limitations as amended by the Civil Liability and Courts Act 2004.
There is a limited exception where a person is under a disability, including unsoundness of mind, in which case time may not run while that incapacity continues. That exception is narrower than families often assume, and it should never be relied upon as a reason to delay.
The Injuries Resolution Board stage
With the notable exception of medical negligence claims, most personal injury claims must first be submitted to the Injuries Resolution Board before proceedings can be issued. The Board assesses the value of a claim where the respondent does not dispute liability, applying the Judicial Council’s Personal Injuries Guidelines. Where liability is denied, it will issue an authorisation allowing the claim to proceed to court.
Where a claim is brought on behalf of a person who lacks capacity, any settlement will generally require court approval. This is a protective measure, designed to ensure that the sum agreed is fair and that the money is safeguarded.
If your parent dies before or during the claim
Sadly, this does happen, and it does not necessarily bring matters to an end. Under the Civil Liability Act 1961, a cause of action generally survives for the benefit of the estate, although damages for pain and suffering are excluded in a survival action.
Separately, where a death is caused by wrongful act, the statutory dependants may bring a fatal injury claim. This can include damages for financial dependency, funeral expenses, and a fixed sum for mental distress, known as solatium, which is currently capped at €35,000 in total for all dependants combined.
Speak to our personal injury team
If you are concerned about your elderly parent and believe that their injury was caused by someone else’s negligence, we can help you work out who is entitled to bring the claim, what evidence is needed, and how best to protect your parent throughout. We understand that these are sensitive family matters, and we treat them accordingly.
Arrange a confidential, no-obligation consultation with our personal injury team today by completing our quick online form.
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