If you suffer an injury that Florida law holds someone else responsible for, you have the right to seek compensation from the responsible party. You can file a lawsuit against them, for example, or you can use the threat of a lawsuit as leverage to negotiate a private settlement.
A problem arises, however, if your minor child (under 18 years old) suffers a personal injury that someone else is liable for. As a minor, Florida will not allow them to file a lawsuit. So are they out of luck?
Fortunately, the answer is no. If your child has a personal injury claim, an adult who is at least 18 can pursue a lawsuit on behalf of the child. The court must approve the adult as the child’s guardian ad litem for the purpose of helping them pursue their claim.
However, the court will not approve just any adult. They will probably be strongly inclined to appoint a parent as long as the parent is willing and qualified.
The Guardian Ad Litem
An adult with a personal injury claim usually has zero or one representative. They either represent themselves, or a lawyer represents them. A child with a personal injury claim has two representatives—a guardian ad litem (GAL) and a lawyer. The role of a GAL is distinct from the role of a lawyer.
The Role of a Guardian Ad Litem
The job of the GAL is to represent the best interests of the child, excluding their legal interests, which their lawyer handles. As such, it is permissible for the GAL to be the child’s parent. In fact, courts often prefer it this way, assuming that the parent is fit for the job.
Remember that the GAL’s job is not to act as an advocate for the child’s desires, but to advocate for the child’s best interests – even over the child’s objections if necessary. The older the child is, the greater weight the GAL is likely to give the child’s own preferences. A GAL will perform the following activities, among others:
- Investigate the child’s circumstances as it relates to their claim. They might interview parents, teachers, doctors, and others to gain a comprehensive picture of the child’s best interests. The GAL can look beyond legal matters to personal, medical, and psychological issues.
- The GAL issues recommendations to the court. The court does not have to follow them, but a GAL’s recommendations are typically persuasive.
The GAL is typically not trained in law and cannot perform legal tasks such as filing pleadings. Nonetheless, some GALs have undergone training in social work and other related issues.
Legal Safeguards on the Use of a Settlement or Verdict by the Child’s Parents
In all likelihood, if the child wins their personal injury claim, compensation will come in the form of a negotiated settlement. It is possible, however, that the claim will go all the way to trial. Either way, special rules apply if the settlement exceeds $15,000.
Amounts Over $15,000
If the total verdict or settlement exceeds $15,000, the court must appoint a guardian to manage the money. The money goes into a restricted bank account, and even the guardian cannot access the money without the court’s permission.
The court’s job is to see to it that the guardian uses the money strictly for the child’s best interests. This arrangement continues until the child turns 18.
Amounts Up to $15,000
Courts generally do not control settlements or verdicts under $15,000. Nevertheless, they have the authority to supervise the use of the funds under the right circumstances.
Even though the court does not place the money in a restricted bank account, the parent(s) must keep the money in a separate bank account-–they cannot commingle it with their own funds.
Although the parent normally does not need court permission to withdraw the funds, the parent must use the funds exclusively to enhance the best interests of the child.
Beware the Statute of Limitations Deadline
Beware the statute of limitations. A parent can only file a claim before the child’s 18th birthday, or until seven years after the injury, whichever occurs later. Once the child turns 18, it no longer matters that they were under 18 on the date that the accident occurred–they can file a lawsuit in their own name.
Circumstances That Might Rule Out the Guardianship of a Parent
A court is under no obligation to select the child’s parent as the GAL for the purposes of litigation. Indeed, under certain circumstances, a court will almost certainly refuse a parent’s petition for guardianship. Following are some examples:
Conflicts of Interest
Naturally, a court is not going to allow a parent to act as the child’s guardian if a conflict of interest exists. Following are some possible examples of conflicts of interest:
- The parent was partially responsible for a car accident that injured the child. The parent might not have placed their child in a booster seat, for example. Alternatively, the accident might have been partly the parent’s fault.
- The parent is the defendant in the action.
- In a medical malpractice lawsuit, the parent consented to the child’s treatment after the doctor informed them of the risks of treatment.
- The parent is a lawyer with professional ties to the defendant.
- The parent is a business partner of the defendant or frequently does business with the defendant.
- The defendant is a business in which the parent has an ownership stake.
If a court allows a parent to represent a child despite a conflict of interest, the child might challenge an adverse judgment later on. Other possible remedies include a legal malpractice lawsuit or perjury charges against the parent (if the parent lies under oath).
Parental Unfitness
Even if there is no conflict of interest, there might be other reasons for a court to refuse to allow a parent to represent their child. These include:
- Poor litigation history: The parent has a history of pressing vexatious litigation.
- The parent suffers from mental health issues.
- The parent has a history of substance abuse or criminal behavior.
Even if the court disqualifies a parent, they might select the other parent or another close relative of the child. Alternatively, they might appoint a stranger guardian ad litem over their child for the sole purpose of pursuing the personal injury claim.
Even if the court refuses to appoint a parent, it will probably not appoint the child’s lawyer as their guardian ad litem. Instead, it will appoint two different people for these roles, even if the guardian ad litem is qualified as a lawyer.
Special Circumstances: Florida’s No-Fault Auto Accident Insurance System
In all but the most serious car accidents, injury victims must look to their own personal injury protection (PIP) insurance to compensate them. Unless they meet certain very specific injury thresholds, they cannot file a lawsuit against the at-fault party.
Let a Clearwater Child Injury Lawyer Handle Your Claim
A child victim is a major red flag telling you that you shouldn’t try to handle your claim on your own. Contact an experienced Clearwater child injury lawyer to schedule a free initial consultation. Reach out to us and schedule a free consultation at (727) 787-2500.
