Navigating Personal Injury Claims for Children.
–By Les Brock–
In Virginia, children who suffer personal injuries due to the negligence of others have the right to seek compensation through legal action. However, the process of bringing a claim for personal injuries can be complicated, especially when it comes to minors. In this post, we will provide a general overview of how to bring a claim by a child for personal injuries in Virginia, and we will discuss the special rules that apply to settlements of a child’s claim.
- Who Can Bring a Claim on Behalf of a Child?
Children under the age of 18 are considered minors and are not able to bring legal claims on their own. Therefore, a parent or legal guardian must bring the claim on behalf of the child. The parent or guardian acts as the child’s “next friend” in the legal proceedings.
- Statute of Limitations
In Virginia, the statute of limitations for personal injury claims is two years. However, when it comes to minors, the statute of limitations is “tolled,” or paused, until the child turns 18 years old. This means that a child has until his or her 20th birthday to bring a claim for personal injuries. This extension allows minors additional time to decide if they want to pursue legal action, as their injuries and potential long-term effects may not be apparent until they reach adulthood. It’s important to note that there can be exceptions to this rule, and it’s best to consult with an attorney to determine the specific statute of limitations for your case.
- Court Approval of the Settlement
When a personal injury claim involving a minor child is settled, the settlement must be approved by the court. This process ensures that the settlement is in the best interests of the child and that the funds will be handled appropriately until the child turns 18. The court will hold a hearing where all interested parties are expected or at least invited to attend, and the judge will consider the terms of the settlement. Only a settlement approved by the court is binding on the minor child.
4. The Role of the Guardian Ad Litem
A guardian ad litem may be appointed by the judge to assist the court in evaluating any proposed settlement. The guardian ad litem is typically an independent attorney who has no financial interest in the settlement and can faithfully represent the interests of the minor child. It is the responsibility of the guardian ad litem to provide independent recommendations to the court about the child’s best interests, which can be different from advocating for what the child or the parent may want, and to bring balance to the decision-making process. The guardian ad litem may conduct interviews and investigations, make reports to the court, and participate in court hearings.
5. Payment of Settlement Funds
The court has several options when determining how settlement proceeds are paid to the minor child. The default rule is to pay the money into the court to be held in an interest-bearing account until the child turns 18. The benefit of this option is that the court can be petitioned to release some of the money to the child if a specific need arises. The drawback of this option is that the money is typically held in a low-interest savings account.
Another option is to place the money into an annuity, where it is paid out in a lump sum or over time. This is a popular option, as the annuity can pay out substantially more funds than what might accrue over the same period of time if the court holds it in a low-interest account. The drawback of this option is that once the money is paid into an annuity, the child may have no way to access the money before the maturity date in the event of an emergency or some other special need.
Other options include investing the money into a college savings trust account, setting up a special trust held by a qualified fiduciary, or paying the money to the parents to hold in trust for the child. If the money is paid anywhere other than to the court, there are special precautions that the court will take to help ensure the money is properly protected and accounted for until the child turns 18. It is best to consult an attorney to understand the specific precautions applicable to each option.
Personal injury claims can be a complex area of law, particularly when it comes to minors. If your child has been injured in an accident, call Merrick Brock at 804-500-9796 to get a free consultation with one of our attorneys.
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