California law entitles those who've been injured due to the negligence of others to seek financial compensation for their injuries. However, someone filing a personal injury claim must have both legal standing and the legal capacity to begin the case. This means that children, or those who are deemed legal incapable, will require a guardian ad litem appointed to make decisions for the incapable individual and to seek compensation for their accident-related expenses.
Appointing a Guardian Ad Litem
A guardian ad litem is someone who is appointed by the court to act in the best interests of a child or legally incompetent person who is involved in a legal proceeding. “Ad litem” is a Latin phrase which means “for the suit.” A guardian ad litem is used in a personal injury claim involving children under the age of 18, or adults who are mentally incapable of making decisions for their well-being.
In most personal injury cases, a guardian ad litem is a parent, grandparent, or other close relative. Since only one guardian ad litem is necessary, it's usually advised to select the adult relative with the most time available to devote to working with the attorney or to help settle the child's case. For example, if a child lives with a stay-at-home mother and a father who must frequently travel on business, having the mother appointed guardian ad litem would allow the case to proceed in a timely fashion. That is not to say that the father would not have input in the handling of the case, it only means that the mother would the person designated to make the final decisions for the case.
If no suitable relative is available to perform the duties, or there is reason to believe the child's interests will conflict with those of the available relatives, the court can appoint another person, such as an attorney to serve as guardian ad litem.
Preparing the Case
The role of a guardian ad litem varies depending upon the type of personal injury claim and the age of the child. However, the person serving as guardian ad litem will usually be responsible for:
- Evaluating the case with the attorney
- Assisting the attorney with any necessary preparation of the case
- Make decisions on the issues of a potential settlement
- Providing age-appropriate updates about the case to the child
- How settlement funds will be invested for the minor
Settlement Issues for Cases Involving Minor Children
California requires a judge to approve the settlement of any personal injury claim over $5,000 that involves a minor child. Insurance companies will often insist on court approval even if the child's net recovery is less than $5,000 after attorney fees, costs, and medical expenses.
During the settlement process, the guardian ad litem will play a role in addressing the following concerns:
- Distributing funds over the course of the child's life
- Deciding how to best invest the child's settlement funds
- Determining what portion of the settlement belongs to the parents as reimbursement for the child's previously paid medical expenses
- Determining if the parents should be allowed to use a portion of the child's settlement to make modifications to the home that would improve the child's quality of life, such as installing wheelchair ramps or roll-in showers
Length of Involvement in the Case
The role of a guardian ad litem does not end until the child reaches age 18. Children often receive structured settlements providing periodic payments that will need to be invested to meet future needs or allocated towards current living expenses. If an injured child's original guardian ad litem becomes unavailable or is deemed to be not acting in the child's best interests, the court can step in and appoint a replacement.
Necessity of Legal Representation
Although parents or other family members are often allowed to serve as a guardian ad litem for an injured child, California law mandates that children have an attorney to prepare the case paperwork and represent their interests throughout the approval process. A guardian ad litem cannot act in pro per (without a lawyer) to represent the child’s interest in a monetary settlement. This would be considered an unlawful practice of law.
If you are seeking legal representation on behalf of a child who has been injured in an auto accident or a dog bite attack, Inland Empire Law Group can help. Our experienced attorneys are committed to assisting clients in obtaining fair and prompt settlements. Please call to schedule a free, no-obligation consultation at either our Rancho Cucamonga or Victorville offices. Call now (909) 481-0100 to speak with one of our representatives, or submit your information through this website to have our office reach out to you.