Injuries in Minors – Personal Injury Lawyer
Introducing a new guest blogging series, this Workshop Wednesday post elaborates on last week’s article and includes insight from an attorney who focuses his practice on injury cases.
As a Florida Personal Injury Lawyer practicing primarily in Miami, Broward, and Palm Beach counties, the unfortunate situation frequently arises when a child sustains injury from an accident. While the standard of care and laws surrounding negligence rarely change when it comes to children, Florida law mandates certain guidelines to follow should the child be afforded monetary compensation for his or her loss. And whether it be a car accident or slip and fall, the law is clear as to the establishment of a guardianship for the child following an injury settlement or jury verdict.
When pursuing a lawsuit on behalf of a minor, typically the parents of the child are deemed “natural guardians.” Of course, a child does not have the capacity or ability to retain a lawyer and proceed with a lawsuit on his or her own, for the parent or “natural guardian” acts on the child’s behalf and in the child’s best interest during the course of the litigation.
Similar to that of other states, Florida has an entire chapter of its statutory code dedicated to Guardianship. Pursuant to Florida Statute, 744.301, “the parents jointly are the natural guardians of their own children and of their adopted children, during minority.” According to that statute, parents deemed natural guardians are entitled to proceed to act on behalf of their children as it pertains to settlement of a lawsuit or cause of action.
According to Florida Statue, 744.387, parents cannot settle claims larger than $15,000 on the child’s behalf without seeking court approval. As a parent, you may seek approval by filing a Petition for Approval of Settlement, where you will detail the situation that led to your child’s injury, the fault of each party involved, and the settlement amount each party has agreed to, among other pertinent details.
However, in an effort to protect the interests of the child in the event of an excess injury settlement or verdict, Florida law may require the appointment of a guardian ad litem. Specifically, under Florida Statute, 744.3025(1)(a), “the court may appoint a guardian ad litem to represent the minor’s interest before approving a settlement . . . in which the gross settlement of the claim exceeds $15,000.” This ultimately means that a guardian ad litem does not need to be appointed for claims exceeding $15,000.
However, while the court has discretion as to whether to appoint a guardian ad litem for settlements exceeding $15,000, the law removes any judicial discretion for claims equaling or exceeding $50,000. Under Florida Statute, 744.3025(1)(b), “the court shall appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s claim in any case in which the gross settlement involving a minor equals or exceeds $50,000.” In other words, for all settlements equaling or exceeding $50,000, a guardian ad litem must be appointed regardless as to whether the court deems it appropriate or not.
This guardian may be present only for the duration of the legal proceedings in order to represent your child during negotiations and during the distribution of the money. In other cases, this guardian will be present after the legal process has ended. The money will likely be deposited into a trust, and the guardian will have to approve expenses.
While the establishment of a guardianship and appointment of a guardian ad litem for a child may be time consuming and an additional cost, it is certainly a necessity to ensure that distribution of the child’s settlement funds are disbursed appropriately. In summary, the guardian ad litem is a neutral advocate for the child in place to ensure the child’s best interests.