Minor children, of course, can be injured by the negligence of others just as easily as adults can be. However, in Missouri, the rules for recovery of personal injury damages do not apply to minors the same way as they do for adults.
Adults have the luxury of exercising their reason and discretion to be able to:
- Act reasonably in response to the negligence of others
- Know and articulate when and how they have been injured
- Decide to file a personal injury claim
- Negotiate a fair and proper settlement
However, children do not have the necessary legal capacity to make these decisions or to necessarily determine what is in their best interest. Therefore, a minor child may have someone agree to settle their claim on their behalf. These may include:
- A guardian
- A conservator
- A "next friend"
- A guardian ad litem (a lawyer responsible for advocating the best interest of the child)
What Is the Process for Representing a Child’s Settlement Interests in a Personal Injury Case?
Missouri Supreme Court Rule 52.02 provides for the process for a settlement agreement on behalf of a minor. To initiate a settlement on behalf of a minor child, the parties must motion the Court to approve the settlement. The motion should:
- State the facts of the case
- Request that a “next friend” be allowed to enter into a settlement on behalf of the child
- Be signed by all of the parties involved in the settlement and their respective counsel
If the petition is approved, the next friend, guardian ad litem or guardian or conservator shall have legal authority to waive a jury and submit a proposed settlement to the court for approval.
The court will then make a determination whether to approve the contract to settle the claim on behalf of the minor. The court also will order the next friend, guardian ad litem or guardian or conservator to sign a release of judgment and make arrangements for the payment of fees for an attorney to represent the child, including any bond that may be required.
If a settlement is approved, the child’s next friend or guardian ad litem may receive the child’s award on behalf of the child. To protect the child from the next friend or guardian ad litem taking advantage of the child by misusing the child’s award, there are certain rules that must be followed, one of which is that the next friend must obtain the court’s approval of the settlement.
What Are the Rules and Responsibilities for Representing a Child’s Settlement Interests in a Personal Injury Case?
Any settlement that a next friend reaches on behalf of a child must be approved by the court. And if the amount of the award the minor child is to receive is more than $10,000, then the court must appoint a conservator to receive the award on behalf of the child. If the award is less than $10,000, then a court appointment of a conservator is not necessary. Instead, the next friend may handle the child’s affairs and see that any award money is transferred to the child or a parent of the child.
If a next friend is to receive and administer the child’s award, they are responsible for posting a bond to the child. The court must also approve the bond. If the representative does not execute a bond when it is ordered but nevertheless receives the child’s award, they may be liable for an amount double the amount of the award that they received.
If the amount is greater than $10,000 and a conservator is appointed, it may be possible to avoid the need for a bond. The determination of whether a bond is appropriate can be complicated. You should discuss this aspect of the child’s settlement process with an attorney.
These rules, designed to strictly protect the child’s interests, are applicable even if it is the child’s parent who waives the child’s rights and agrees to a settlement, particularly since the statute of limitations on the child filing a claim is tolled until the child reaches the age of 21, thereby eliminating any immediate need to rush to a settlement agreement. The court’s greatest concern is that the settlement be fair for the child and serve the child’s best interest.
Protect Your Child’s Interests in Personal Injury Settlements
If your child has a claim against a defendant for personal injury damages or if you are serving as a next friend on behalf of your child, be sure you understand your child’s interests or the legal process for serving in this role and the responsibilities that are required of you. Call our experienced personal injury lawyers today to discuss all of your child’s rights and your responsibilities, as well as the responsibilities of others who may affect your child’s settlement.