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Watching a loved one adapt after suffering life-changing injuries following an accident, whilst navigating the practical implications such as the cost of care, loss of income, and adaptions to the home, can be one of the hardest things a person will experience, particularly where the claimant has lost capacity.

Our Personal Injury Team has a wealth of experience in supporting claimants and their families in obtaining compensation and navigating the complex process of arranging private care and rehabilitation, recovering past and future earnings, and helping the claimant rebuild their life.

Our Team has prepared a brief summary of some of the main concerns you may have if your loved one has suffered life-changing injuries following an accident which was not their fault, to guide you through the initial steps.

My partner has lost capacity as a result of their injuries, what can I do?

If the claimant made a Lasting Power of Attorney before the accident and has lost capacity, their Attorney (the person appointed in the LPA) should be able to pursue a claim on behalf of the claimant, depending on the terms of the LPA.

If, however, the claimant did not make an LPA, then a suitable litigation friend would need to be appointed to bring a claim on behalf of the claimant who has lost capacity (referred to as a ‘protected party’).

The Civil Procedure Rules state that a person can act as a litigation friend if they:

• can fairly and competently conduct proceedings on behalf of the protected party;
• have no interest adverse to that of the protected party; and
• where the protected party is a claimant, undertake to pay any costs that the claimant is ordered to pay, subject to any right to be repaid from the assets of the protected party.

A family member will generally be appointed as a litigation friend subject to meeting the above criteria.

Once a litigation friend has been appointed, a personal injury claim can be pursued on behalf of the claimant to obtain damages to compensate them for their injuries and any reasonable financial losses or expenses incurred as a result of the accident including but not limited to lost earnings (past and future), the cost of private treatment and/or care, surgery and medication etc. (known as Special Damages).

I had to give up work to provide care to my loved one, can I claim for a loss of earnings?

Whether you took time off work, reduced your hours temporarily, or had to give up work entirely to care for a loved one who has been injured, there is support available.

If liability i.e. fault is admitted, a claim can be included as part of the personal injury claim for your lost earnings in addition to any other losses and/or expenses incurred by or on behalf of the claimant due to the accident. Our team can assist in calculating your loss of earnings, seeking an early interim payment (if necessary), and recovering your lost earnings from the defendant as part of the settlement.

It may be the claimant also requires professional care and assistance. This will need to be determined by a medical expert, and if recommended, we can help you to find a suitable care provider and include the cost as part of the claimant’s Special Damages

I need to provide care and assistance to my loved one, what support is available?

It is possible to obtain an interim payment from the defendant’s insurers before settlement of the claim as the Courts recognise that claimants and their families require financial support between the accident and settlement of the claim, which can often take years to conclude where the claimant has suffered serious injuries. If liability i.e. fault has been admitted by the defendant, we can help you to apply for an interim payment to be offset against the claimant’s damages. Any interim payments made would need to be deducted from the final settlement received at the end of the claim and approved by the Court.

Interim payments can be used to fund private care, specialist equipment and/or adaptions to aid the claimant’s recovery and to support you financially to care for the claimant.

If liability has been admitted, the defendant is also obliged to arrange and fund an Immediate Needs Assessment (INA) under the 2015 Rehabilitation Code. As part of the INA an independent case manager will assess the claimant and provide a report setting out their recommendations for managing recovery. This may include treatment such as physiotherapy, or recommendations for specialist equipment, which would be funded by the defendant’s insurers.

There may also be benefits available to the claimant such as industrial injuries disablement benefit, personal independence payment, disability living allowance, attendance allowance, etc. and our Personal Injury Team can help provide advice or signpost you to the relevant authority.

I might need to make modifications to my home, is there financial support available for this?

Depending on the type of injury sustained, the claimant may require adaptations at home (for example, a stair lift, grab handles, or a wet room) or specialist equipment (for example, raised toilet seats, an orthopaedic mattress, or an electric chair)  If so, our Team can instruct an occupational therapist to understand what adaptions are necessary and the cost of making those changes now and in the future.

There may also be financial support available through government support or a Home Improvement Agency to make those adaptions

Life following a serious injury can be overwhelming and complicated, but the Personal Injury Team at Leathes Prior are here to help answer your questions and support you through the process of bringing a personal injury claim. If you would like to discuss your circumstances with the team, please contact us via info@leathesprior.co.uk or call 01603 610911.

For further commentary on capacity in legal proceedings, see our article ‘Capacity in civil proceedings – Clarity delivered on the process of determining litigation capacity’ here.

To read more on Lasting Powers of Attorney, see our article here.