When a child passenger is injured in an automobile accident or tractor trailer accident, who protects his or her rights? Well, you would assume that the parents or legal guardian would represent the child’s interests. They do, but with caveats. Parents must understand the law because how a personal injury case is handled for a Georgia child will affect that child’s future in terms of recovery, rehabilitation, care and education.
A child under 18 is not competent to represent himself or herself in a personal injury claim or litigation. Such a child is not sui generis in the eyes of the law. Accordingly, Georgia courts will often “toll” the statute of limitations until such a child is eighteen, the age of adulthood in Georgia. This means that a 5 year old child may have as long as two years after his eighteenth birthday in which to file suit. However, you should never rely on tolling. It is subject to the discretion of the judge. If you are the parent or guardian of a minor child who has been injured, whether in a premises liability matter, a products liability case, a tractor trailer accident or similar incident, then you should bring the claim within the regular 2 year statute of limitations period.
Georgia courts will not allow the child to claim medical expenses for which the child did not pay and for which the child is not legally responsible. Therefore, the parents must join any lawsuit as “Next Friend” of the child in order for the medical expenses to be recouped.
Generally, the parents or guardian communicates with the lawyer and has responsibility for making the settlement or litigation decisions on the child’s behalf. However, once a child injury suit is settled or the proceeds from a judgment paid, the money from the settlement must be placed in a conservatorship for the benefit of the child if the proceeds are over $5,000. The conservator is the person, usually the parent or guardian, who looks over the money and must report to the probate court judge at least once per year and every time any non-material amount is to be spent for the benefit of the child.
An alternative to a conservatorship is a “structured settlement”. In a structured settlement the money is paid not to the child but to a special account for the benefit of the child under the Georgia Transfer to Minors Act. The account is set up with a broker or financial advisor and the parent acts as “Custodian”, directing the financial advisor. When the child reaches age 18, the money is relinquished to the child. Many of these accounts also may qualify for 529 treatment, meaning that the earnings during years between deposit and the age of majority are tax deferred. A structured settlement is much easier, cheaper and less laborious than a conservatorship and should be the preferred method of funding a settlement for a minor.
If a child is killed from the negligence of another in Georgia, then the family will need to act in accordance with the wrongful death laws of Georgia and should speak to a wrongful death attoney as soon as practicable. If the child had no will, then an Administration will have to be established for the child. The parents are the likely beneficiaries of any proceeds from the estate of the child and any wrongful death settlement.