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My stepfather has been in a nursing home for about two months. He was put in a room with a severely demented and violent patient and was severely beaten. His daughter is filing a lawsuit against the nursing home and filing for guardianship. My mother is also thinking about filing a lawsuit against the nursing home. My questions are: Can there be two separate lawsuits?; if my stepfather's daughter's lawsuit gets a cash settlement, does the money go to my stepfather, to his estate, to his daughter?; My mother is very upset about the beating and also upset about her husband's daughter filing a lawsuit. What actions should my mother take as the spouse?
State/Country relating to Question: Massachusetts Already Tried: We have not anything yet.
Good Evening,
I am sincerely XXXXX XXXXX what is happening to your stepfather; a lot of these incidents take place, but, unfortunately, do not get reported and the people responsible for the care of recuperating patients get off without even a reprimand.
A paintiff cannot have 2 lawsuits for the same cause of action against the same defendants.
1. In your situation, it is your stepfather who has a cause of action against the nursing home and if he is of sound mind, he should be the person suing the nursing home and signing anything requiring a plaintiff's signature. The cause of action rests with him, not with anyone else. Your mother, as his spouse, can be a plaintiff also and allege her claim for a spouse's Loss of Consortium.
The law requires that a plaintiff have "standing" to bring a lawsuit. His daughter does not have standing to bring any lawsuit.
If he is not of sound mind, then your mother would be the proper person to file a Petition Determining Competency. After a hearing, if the Judge decides he is not competent to handle his affairs, he will appoint a guardian and your mother sould be the one appointed, as his spouse.
(Keep in mind that recuperating from a physical illness in a nursing home does not make any individual mentally incompetent
2. If your stepfather is mentally impaired and your mother is appointed guardian, then she would institute a lawsuit on behalf of your stepfather and also include her claim for Loss of Consortium.
Any money awarded for the injuries in Nos. 1 and 2, above belong to and would go to your stepfather and any award for Loss of Consortium belong to and would go to your mother.
3. If he were to pass away from these injuries, your mother as his spouse, would institute a wrongful death action against the nursing home and any other individuals responsible. Note: The laws of Some states provide that if the spouse (or, if none, the next of kin) do not bring this action within a certain number of months after death, then the EWxecutor, or administrator of the estate of the decedent is authorized to bring this action.
In such a cas, any money awarded would go to the estate of the decedent (your stepfather),
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Thank you and Good Luck!
ANDREA, JD, LL.M., Taxation
Member, NY & PA Bar
DISCLAIMER: The facts stated herein are information only and are not intended, nor should be construed as legal advice or legal opinion and No Attorney-Client relationship is formed by asking questions and receiving information; laws vary from state to state and to protect your interests, you should seek local counsel
My stepfather, 95 years old, is not mentally competent and his daughter has filed for legal guardianship. My mother is elderly and frail but she feels she should be guardian. The problem is she is burying her head in the sand and thinks because she is the spouse she automatically makes the decisions for her spouse. If the daughter gets legal guardianship how does this change the lawsuit and who gets loss of CONSORTIUM and control of any money awarded.
Thank you for your Reply,
You should tell your Mom that nothing is automatic and she must take some positive steps if she wants to help her husband.
If the daughter files for a competency hearing and your mother does not object, the Court will probably appoint the daughter as guardian.
If your Mom objects at the time of the hearing, she will look bad to your stepfather's daughter.
So, she is much better off filing the Petition herself; there will be less strife now, rather than waiting until the daughter steps forward and takes action.
If the daughter is appointed guardian and there is a monetary award, any part of that award will go into your sepfather's guardianship estate for his benefit, but the daughter will be making the decisions on how that money will be spent and there is no guarantee that she will approve even expenditures that are necessary. So, your mother will have to be arguing and pleading with the daughter in those situations.
Any award for "Loss of Cosortium" belongs trictly to your mother as the spouse; but my guess is that if the daughter commences the action, she will not include your Mom's claim, knowing that she will not benefit from any part of that money.
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Attorney
25 Yrs. Family Law, Estates, Real estate & Bus. Law, Criminal Defense, Immigration, Employment Law
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