Adults aren’t the only ones who can be injured in an accident. Minors can also sustain injuries. Children and young adults can be impacted by an accident, and sometimes their injuries stay with them for life.
Since minors are typically under the legal care of a parent or adult guardian, does this mean they can’t file a personal injury claim? The answer is usually no, only an adult can file a file, which is when it pays to understand the role of a litigation guardian for a child.
What is a Litigation Guardian
A minor is anyone under the age of 18. Once you turn 18, you’re considered a legal adult, which means you can enjoy certain rights like the ability to vote in elections and even join the armed services. As an adult, you can also decide if you want to file a personal injury claim after being involved in an accident.
However, if the accident victim hasn’t reached their 18th birthday, they legally can’t file a personal injury claim, which also applies to lawsuits. A minor can’t file a case in civil court, but this also doesn’t mean that a minor must wait until their 18th birthday to file a personal injury claim.
A litigation guardian can file a claim on behalf of a minor. So, what or who is a litigation guardian? This is an individual like the minor’s parent or guardian. The court can also appoint someone to act as the minor’s litigation guardian.
The litigation guardian is essentially an extension of the minor. Every step they take throughout the legal claim process must be done with the minor’s best interests in mind. In other words, the litigation guardian can’t accept a low settlement offer simply because they want to get out of their responsibility to the minor.
Why Would a Minor Need a Litigation Guardian
Minors may need a litigation guardian for a few reasons. If their parents are unable to represent the minor’s interests in the personal injury claim, a litigation guardian may be appointed by the court. This can be another close relative, a family friend, or even a stranger to the child in some instances. The court often has free will on who it decides to choose when the parents are unavailable.
There is also the matter of the statute of limitations. The statute of limitations refers to how long you have to file a personal injury claim after the accident. The average time is two years from the accident date, but this varies from province to province. If you’re not sure how long you have to file a personal injury claim, it’s a good idea to reach out to an attorney for guidance.
If the minor turns 18 in a year or less from the accident date, you may not need to worry about the statute of limitations. The statute also has a few exceptions, especially when it comes to minors. The filing deadline can be temporarily paused until the minor becomes an adult.
However, if the minor is an infant or small child at the time of the accident, you probably can’t pause the deadline for a decade or so. A litigation guardian can resolve this issue by acting on the minor’s behalf during the claim process.
Sometimes, injuries from accidents are severe and this comes with mounting medical expenses. Parents may not be able to afford to wait to settle a claim until their child turns 18. Another downside to pausing the statute of limitations is it can weaken your position in the claim. Witnesses to the accident can forget important details that help support your claim. Witnesses can also move away and evidence can get lost.
In most instances, it’s always best to file a personal injury claim as soon as possible after being involved in an accident.
Who Can Access the Settlement From a Personal Injury Claim
Who has access to a minor’s settlement from a personal injury claim can vary. Typically, the funds are placed in an escrow account until the minor turns 18, which means that the minor’s parents or guardians can’t access the money unless a judge signs off.
When would a judge allow someone to access a minor’s personal injury settlement award? This is typically limited to paying for the minor’s ongoing medical expenses including long-term care.
Working with a Child Injury Attorney
If a minor is injured in an accident, it’s best to work with an experienced attorney to help you. A child injury attorney can help you navigate the legal system from filing the claim to placing the settlement in escrow.
Your attorney can also explain the pros and cons of filing now or waiting until the minor is an adult, ensuring you make the best decision for your child’s future well-being and financial security.
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