Suing on Behalf of a Child: Guardians, Court Approval, and Settlements

A parent, legal guardian, next friend, or court-appointed guardian ad litem can sue on behalf of an injured child, but the child owns the claim. Because minors generally lack the legal capacity to file lawsuits, sign binding settlements, or release claims, an adult must act on their behalf. In many states, a court must approve any settlement involving a minor, and the funds may need protection in a restricted account or trust until the child reaches adulthood.

Consulting an experienced personal injury attorney in your area is a prudent next step. An attorney can preserve critical evidence and ensure any claim is filed properly and on time, protecting your child’s rights.

How Suing on Behalf of a Child Works

Unlike adults, minors lack legal capacity to sue, enter into contracts, or release claims. This means a child cannot bring a lawsuit on their own. However, the claim still belongs to the child. An adult must bring the claim on the child’s behalf.

Who Has Legal Standing To File

Although a child lacks legal standing to file a personal injury case on their own behalf, certain adults can file on the child’s behalf. These include the following.

• Parents, natural guardians, or legal guardians. These adults are typically the first choice to bring a lawsuit on a child’s behalf.
• “Next friend.” Some states use this term for the adult who brings the lawsuit on the child’s behalf.
• Guardian ad litem (GAL). A person the court appoints specifically for the lawsuit. This means the individual serves as the guardian “*ad litem, *” which means guardian “for the lawsuit.”

Terminology varies by state, but the roles are similar to those described above.

The Role of a Guardian Ad Litem

A guardian ad litem (GAL) represents the child’s best interests in court. The GAL’s primary role varies significantly by jurisdiction. In general, a GAL is appointed to protect the child’s best interests. Depending on state law and the court’s order, a GAL may work with the attorney, recommend to the court, and evaluate settlement offers.

If a conflict of interest prevents the parents from being neutral, such as when a parent was the at-fault driver, the court may need to appoint a GAL. A court-appointed GAL can be an attorney or another person trained for the role.

Child and Parent Legal Claims

When a child is injured, two sets of legal claims may be brought. The child can bring a claim for pain and suffering, medical needs, and lost earning capacity.

Parents may also claim medical expenses paid and, in some states, lost time or services. Parents and children could have separate claims for the same incident.

Statute of Limitations for Minors: How Tolling Works

Cases must be brought within the relevant time limits, or else a party loses the ability to bring the claim. Tolling is a legal procedure that pauses or delays the filing deadline. Regarding minors, many states delay the clock until the child reaches the age of majority, usually 18.

Consider this example. A child is injured through the negligence of another party at age 10 in a state with a two-year deadline to file. In that case, the child may have until age 20 to file. This procedural rule protects minor children whose parents did not act in time. Once the child reaches the age of majority, the statute of limitations begins to run. This allows them to act on their own behalf as an adult.

Important Exceptions to the Tolling Rule

The tolling rule is subject to limitations. Many states shorten tolling for minors in medical malpractice cases. States with these types of rules either cap or shorten the tolling period.

Claims against government entities can also be exempt from the general personal injury tolling period. These claims may be subject to notice-of-claim deadlines as short as a few months, with or without tolling. Parents’ own claims to recover medical bills are often not tolled.

Why Waiting Rarely Helps

Although a minor may use tolling provisions to bring a personal injury claim after reaching adulthood, it may not always be the best legal strategy. As in any case, evidence becomes harder to locate over time, witnesses become harder to track down, and records supporting the claim become harder to obtain.

Even if the deadline to file a suit on behalf of a child seems far away, it is best to consult an experienced personal injury attorney early. They can provide guidance on the best next steps.

What Is a Minor’s Compromise?

In many jurisdictions, a settlement involving an injured child must go through a court-approval process, often called a minor’s compromise or something similar. Depending on state law, courts may require approval whether or not a lawsuit has already been filed.

Courts often require approval before a settlement becomes final, and in some states, if the net settlement exceeds a statutory threshold, a conservator or similar fiduciary may need to be appointed to manage the child’s funds. This may take place in probate court or family court. It depends on the court rules of the applicable jurisdiction.

The Purpose of Court Oversight

Court oversight measures help ensure a fair settlement for the child. In fact, it can benefit both parties since an approved settlement prevents the child from reopening the matter once they reach the age of majority.

The Approval Process, Step by Step

A settlement for a minor typically follows the general steps outlined below. However, the process can vary.

1. Negotiate a proposed settlement
2. File a petition for approval of the minor’s compromise (names vary by state)
3. Submit supporting documents, including medical records, an injury summary, and a breakdown of fees and costs
4. Attend a hearing, where the judge may question the parent, guardian, or attorney
5. Receive a court order approving the proposed settlement and directing how the funds are handled.

Deciding whether to accept a proposed settlement agreement requires the court to evaluate the case. It seeks to determine if the settlement is fair in light of the child’s injuries, future needs, medical bills, and how the remaining settlement money will be used to protect the child.

Protecting Settlement Funds Until the Child Reaches the Age of Majority

To serve the minor’s best interests, settlement proceeds can be handled in several ways.

1. Restricted/Blocked Accounts

This settlement payout option requires depositing funds into an insured account that cannot be withdrawn without a court order. Funds in restricted accounts typically become available when the child reaches the age of majority, often 18.

2. Structured Settlement Annuities

Structured settlement annuities are periodic payments made over time, funded by an annuity. These payments often start at 18 or are spread across key milestones. This type of settlement provides guaranteed payments, potential tax advantages, and protection against spending the full amount at once.

3. Other Options for Specific Situations

Settlement mechanics for minors can vary widely depending on the case’s specific circumstances. The right structure depends on factors such as the child’s injuries, age, and long-term needs.

• Special needs trusts. These specialized trust accounts can help preserve eligibility for government benefits for children with lasting disabilities while allowing the settlement funds to be used in ways that support the child’s quality of life.
• Smaller settlements. When the settlement is relatively small (does not exceed the statutory threshold), some states allow simplified options, such as custodial accounts. This simplified process is more efficient to manage and administer when modest amounts are involved.

Common Mistakes Parents Can Avoid

Keep these details in mind when you file a lawsuit on behalf of a child. Be aware of the following common mistakes to avoid to protect the claim:

• Assuming that tolling applies to every claim and missing a shorter deadline
• Accepting the first offer or insurance settlement check, or signing a release without court approval.
• Overlooking a separate claim that parents can make for medical expenses
• Expecting to use settlement funds for household expenses
• Waiting to gather records, photos, and witness information until it is too late.

Avoiding common mistakes can help build a strong case for your child (and, in some cases, for your separate claims).

Consult a Personal Injury Attorney If Your Child Has Been Injured

An experienced local personal injury attorney can guide you through a case when you bring a claim or a lawsuit on your child’s behalf. They can confirm deadlines that protect the claim, guide the minor’s compromise process, and help build a settlement plan that best supports your child’s future. You do not have to face this legal matter alone.