A minor (a child under 18 years old) cannot vote, cannot buy alcohol, cannot marry without parental consent, cannot enter into a contract, cannot serve on a jury, and (in most cases) cannot consent to their own medical treatment.
Additionally, a minor cannot file a personal injury lawsuit. They must either wait until they turn 18, or they must have a court appoint an adult to file a lawsuit on their behalf. So, based on the facts of your case, you may be able to bring a personal injury claim on behalf of a minor child in the State of Florida.
Playing the Waiting Game
A child can wait until they turn 18 to file a personal injury lawsuit, provided that the applicable statute of limitations deadline doesn’t bar their claim. The statute of limitations deadline sets the deadline by which an injured victim can file a personal injury lawsuit. In Florida, the general statute of limitations deadline is two years. A minor, however, can wait up to seven years after an accident to file a lawsuit before the statute of limitations deadline bars their claim.
Of course, this 7-year statute of limitations deadline won’t help if the child is under 11 years old on the date of the accident, since they won’t be 18 yet by the time it expires. Even if the child is 11 or older, it’s best that they don’t wait. Evidence grows stale, witness memories fade, records get lost, and physical evidence deteriorates.
It’s always best to file a lawsuit as soon as you are able to. Having an adult willing to file a lawsuit on our behalf allows a minor to file immediately.
Filing a Lawsuit on Behalf of a Child as a Guardian Ad Litem
A court can appoint an adult as a guardian ad litem (GAL) to file a personal injury lawsuit on behalf of a child, regardless of the child’s age. The child will thereby enjoy the benefit of two representatives–a GAL and their lawyer.
Who Will Select the GAL?
Typically, a court will appoint a parent as the child’s GAL. It might refuse to do so, however, if appointing a parent as GAL would not be in the child’s best interests. This might be the case under the following circumstances:
- The parent’s interests are adverse to their child’s (the child is suing for personal injury arising out of a car accident while the parent was driving, for example).
- The parent is unfit. For example, they might be a convicted felon or a drug addict.
- The parent cannot be located or is not living in Florida.
- The parent has mental health issues.
- The parent has a history of pursuing frivolous litigation.
A judge will appoint the child’s parent as GAL unless there is a good reason not to.
What Does a GAL Do?
The GAL’s job during lawsuit proceedings is to represent the best interests of the child in every way except providing direct legal services (because legal services are the lawyer’s job). The GAL is not, however, a mere mouthpiece for the child’s desires.
Instead, the GAL is expected to make decisions in the child’s best interests, even if the child disagrees with these decisions. It’s okay, however, to give the child’s preferences some weight if they are old enough.
In addition to filing the lawsuit, the GAL should perform the following services on behalf of the child claimant:
- Investigate the child’s best interests. It isn’t always obvious what the “best interests” of a child are. The GAL might interview various people who know the child well and who have impacted their life–parents, teachers, and more. The GAL can evaluate the child’s psychological, medical, and personal needs.
- Issue recommendations to the court. Although the GAL has no formal authority, the court will ask them to issue recommendations, and these recommendations typically carry some weight with the judge who asks for them.
The GAL cannot be the child’s lawyer and cannot file legal motions with the court. The GAL and the child’s attorney must be two different people, even if the GAL has a license to practice law.
Management of Compensation
The practical reality of personal injury law is that the great majority of claims settle outside of court. So what authority does a parent or guardian have to settle a child’s personal injury claim? Generally, the parent may accept a settlement offer and may manage the money on behalf of a child as long as the gross amount does not exceed $15,000.
If Compensation Exceeds $15,000
If the total amount of compensation exceeds $15,000, the court will appoint someone, typically a parent, to manage the money. The parent must deposit these funds into a special restricted bank account.
The parent cannot withdraw money from the child’s restricted bank account without the court’s permission. The purpose of granting such authority to the court is to make sure that the parent uses the money only to advance the child’s best interests. This arrangement continues until the money runs out or the child turns 18, whichever comes first.
Amounts Up to $15,000
Courts exercise far less supervision of settlement amounts that do not exceed $15,000. Nevertheless, a court has the authority to supervise the use of such a settlement under the right circumstances. It also has the right to supervise the use of a verdict of this size.
The parents or guardians must keep even a small settlement in a separate bank account, although the account does not need to be restricted. The purpose of this is to prevent the parents from commingling their own money with the child’s money. The parents must spend all of the child’s money on the child’s needs.
Special Case: Florida Car Accidents
In all but the most serious car accidents, Florida car accident injury victims must look to their own personal injury protection (PIP) insurance for compensation. Unless they meet certain very specific injury thresholds, they cannot file a lawsuit against the at-fault party. A minor is entitled to full benefits under PIP insurance, whether as a licensed driver, a passenger, a bicyclist, or a passenger.
Even if the child lacks their own PIP insurance policy (because they have no driver’s license, for example), the policy held by their parent or by the driver of a car they were a passenger in will usually cover them. Because of this, there is no need to file a lawsuit unless the child’s losses exceed PIP coverage ($10,000 minimum). A child, like an adult, cannot seek non-economic damages under a PIP policy.
Car Accident Lawsuits Against Third Parties
If the child’s injuries are “serious,” as defined by Florida law, however, they can exit Florida’s no-fault system (there are other exceptions as well). If this happens, the child stands in the same position as if they suffered any other fault-based personal injury.
A court can appoint a GAL to file a lawsuit against a third party on their behalf. Alternatively, they can wait until they turn 18 to file a lawsuit in their own name (subject to the 7-year statute of limitations that applies in such cases).
A St. Petersburg Personal Injury Lawyer Is a Necessity When the Accident Victim Is a Child
As an adult, you have a constitutional right to represent yourself in legal proceedings. A child under 18 has no such right. Representation by a St. Petersburg personal injury lawyer is a legal necessity, even if the court has appointed a GAL for them.
Contact our law offices in St. Petersburg to hire a personal injury attorney at Lopez Accident Injury Attorneys for a free consultation, call us at (727) 933 0015.
