How is a Child Injury Case or Personal Injury Case for a Minor Handled?
How is a Child Injury Case or Personal Injury Case for a Minor Handled?
A child injury case is similar to an injury claim for an adult, yet different. The underlying claim has the same components. However, the procedural aspects are different in certain ways. One of the main differences is the involvement of the court to oversee and approve the settlement for the injured child.
Who Is Considered a Child or Minor in Arizona?
Like most states, any person under the age of eighteen is considered a child in Arizona. Eighteen is the age of majority. The definition of child is set forth in Arizona Revised Statutes 8-101. It defines child as “any person under eighteen years of age.” Likewise, Arizona Revised Statutes 14-1201 provides a definition for a minor. It defines a minor as “a person who is under eighteen years of age.”
A Parent or Guardian Must Enter Into Agreements For a Minor or Child
A minor is unable to enter into binding contractual agreements. As such, a parent or guardian is required to do so on behalf of a child. This holds true with respect to entering into an agreement with an attorney or law firm for representation. The same is true for entering into any settlement agreement for a personal injury.
How a Child Injury Case is the Same as a Personal Injury Case for An Adult
A child’s injury case or claim is the same as that of an adult in certain ways. First, everything that is needed to prove the claim must exist. For a negligence claim a person must prove a duty owed, a breach of that duty and that the breach proximately caused injury or damages.
In any case for a minor, the same elements must be proven that are required in a personal injury case for an adult.
In a car accident case, one must prove that a driver was at fault for causing the crash and that the crash caused an injury to the person. For example, if a driver fails to stop for a red light and that causes a crash, the duty was established and breached. Everyone knows that drivers have a duty to stop for red lights and that if they fail to do so they are breaking the law and breaching that duty. If a crash results that causes injury and damages, the at-fault driver is responsible. The damages can include monetary losses, medical expenses and amounts for pain and suffering.
In any case for a minor, the same elements must be proven that are required in a personal injury case for an adult. This includes all types of cases, including:
- Slip and Fall Cases
- Car Accident Cases
- Dog Bite Cases
- Battery Cases
- Dental Malpractice Cases
- Premises Liability Cases
- Product Liability Cases
- Auto Defect Cases
- Sexual Abuse Cases
- Medical Malpractice Cases
For all these different types of cases, the elements must be proven to show that the person injured is entitled to damages. This includes both a minor and an adult who was injured and advances the claim. However, for cases involving a minor or child injury, the court must be involved to oversee and approve the settlement and to make sure it is protected for the benefit of the minor child.
However, for cases involving a minor or child injury, the court must be involved to oversee and approve the settlement and to make sure it is protected for the benefit of the minor child.
The Probate Court Must Approve a Child Injury Settlement
The probate court must approve the settlement of any case where a child is injured and receiving money. This includes both child injury cases and any other type of case. Under the law, a child is not thought competent to make decisions and handle money. As a result, any time a child receives money by way of settlement, that settlement must be approved by the Court and the money accounted for.
Even if a settlement agreement is tentatively agreed to for a child injury, it can not be finalized without court approval. As a result, an attorney can negotiate a personal injury settlement for his minor client with an insurance company, but it will always be contingent upon receiving the court’s blessing. To get the Court to approve the settlement a conservator will need to be appointed.
A Conservator Must Be Appointed to Settle a Child Injury Case
A petition for permanent appoint of conservator for a minor must be filed in order to finalize a child injury settlement and receive payment. The court requires that a conservator be named to enter into the settlement agreement and to ensure that the funds are used for the best interests of the child. A conservator’s job is basically to conserve the funds for the child until the child reaches the age of eighteen.
A conservator’s job is basically to conserve the funds for the child until the child reaches the age of eighteen.
The conservator is usually the parent, guardian or other close family member. There is a priority under Arizona law as to who may be appointed. This priority for appointment is set forth in Arizona Revised Statutes 14-5410.
What Information Will the Court Need to Approve a Child Injury Settlement?
The court will require information regarding the injured child and the proposed conservator to be appointed. The child is called the ward or proposed protected minor in this proceeding. The court will also require the information of the parent or person applying to be appointed as conservator. The court will want proof that the parent or person to be appointed conservator understands his or her responsibilities as a conservator.
The court will also require information about the injury and the settlement. The court will want to know the extent of the injury, if it is permanent, the course of medical treatment and the amount of past and future medical expenses. The amount of the settlement will be listed as an asset of the child and must be provided to the court. It is the court’s job to ensure that the settlement is fair and that the minor is receiving an adequate amount from it.
The court will require information on every distribution to be made from the settlement. This includes information as to any medical expenses or liens to be paid from the settlement funds or any amounts to be paid to an attorney for his fees working on the case and costs advanced. If all is approved, the court will issue an order setting forth how every dollar is to be allocated from the settlement. All settlement funds distributed must match exactly what the court approved and ordered.
What Will Happen After the Court Approves the Settlement?
After the court appoints the conservator and approves the settlement, it will issue an order. This order will be provided to the insurance company or the attorneys representing the at-fault party. The insurance company or at-fault party will then issue a check for the amount of the settlement approved.
The Settlement Funds of the Minor Will Be Deposited In a Restricted or Protected Account
There will be a provision requiring that the settlement funds be deposited into a restricted account in the order issued by the court. This is of critical importance to the Court. The court will require that the funds be deposited into a financial institution in an account that restricts any withdrawals without a court order.
The court will require proof that this occurred. It will require the financial institution to sign a form proving that the funds were deposited into a restricted account. A bank manager will have to attest that he or she understands that no withdrawals from the account may be made without a court order. In this way, the court ensures that the settlement funds are protected for the minor.
The Settlement Funds for a Child Injury May Only Be Used for the Injured Child
The settlement funds for a child injury belong solely to the child. Parents often wrongly believe that they should be entitled to part of the settlement for what they went through. However, this is not the law and not the way the court views the situation.
The law holds that the child’s injury settlement is for his or her losses only. It is to compensate the child for what he or she went through and the disability, pain and suffering they experienced.
The law holds that the child’s injury settlement is for his or her losses only. It is to compensate the child for what he or she went through and the disability, pain and suffering they experienced. Parents may have their own independent claims for their own losses related to the injury. This includes if they witnessed the injury happen and if it affected them. This also includes claims for loss of care, companionship and love of their child to the extent that occurs.
Can a Parent Use a Child’s Injury Settlement on Things the Child Needs
Whether or not a parent can use a child settlement funds for the benefit of the child is left to the decision making of the trial court. In order to do so, the parent as conservator must ask the court for permission to use the funds and receive an order to withdraw from the funds for that purpose. The court will require a showing that the use of the funds is necessary and in the best interests of the child.
For example, a court would likely give permission to withdraw funds so an almost adult child can make a down payment on his or her college tuition. Likewise, the court may give permission to withdraw funds so the minor can receive an educational summer camp experience or receive orthodontic work like braces that he or she needs. On the other hand, the court would not be inclined to grant a request so that the parent could take their child on a Disneyland vacation. The court would likely conclude that such an expenditure was not necessary.
Parents cannot withdraw funds to help pay for food and basic necessities like shelter and housing.
Parents cannot withdraw funds to supplement their normal financial obligations to their children. Parents cannot withdraw funds to help pay for food and basic necessities like shelter and housing. Even though this benefits the child, these are typical parental obligations. As a result, the court will likely not allow a child’s injury settlement funds to be spent this way.
When Can a Child Receive His or Her Personal Injury Settlement?
A child injury settlement will be available to the child when he or she turns eighteen years old. This is considered the age of majority. The only exception to this is for withdrawals that were approved by the court before then as discussed above.
Once the child turns eighteen years old, a petition for termination of conservatorship and the release of restricted funds may be filed with the court. The court will typically set a hearing to ensure all is in order and then issue an order that terminates the conservator’s responsibilities. The same order will allow the financial institution, where the restricted account was set up, to release the funds directly to the former child who recently turned eighteen.
How Much Does it Cost for an Attorney to Get a Conservator Appointed?
Unlike most law firms, our firm does not charge for the work associated with appointing a conservator and getting the settlement approved for the claims we handle. Many Arizona personal injury firms charge extra for this service. Some of these firms are incapable of doing this work entirely and hire attorneys from outside firms to handle it.
Our attorneys know how this process works and how to get the court approvals needed. We consider this part of our work on the underlying child injury cases we handle. This is a great benefit to the child as they ultimately receive more from their personal injury settlement.
Contact a Child Injury Attorney Today
If you are the parent or guardian of a child who was injured, contact our law firm today. An experienced attorney is available now to discuss the case. A consultation is free and we do not charge anything unless we win the case and obtain money for the ones you love. Contact us today.
About the author: The content on this page was provided by Scottsdale personal injury attorney and civil rights lawyer Tony Piccuta. Piccuta graduated with honors from Indiana University-Maurer School of Law in Bloomington, Indiana (Previously Ranked Top 35 US News & World Report). Piccuta took and passed the State bars of Arizona, California, Illinois and Nevada (all on the first try). He actively practices throughout Arizona and California. He is a trial attorney that regularly handles serious personal injury cases and civil rights lawsuits. He has obtained six and seven figure verdicts in both state and federal court. In 2022, he set a record $11.75 million dollar settlement for a case he handled against Maricopa County. He has been recognized by Super Lawyers for six years straight. He is a member of the Arizona Association of Justice, Maricopa County Bar Association, Scottsdale Bar Association, American Association for Justice, National Police Accountability Project and Consumer Attorneys of California, among other organizations.
Disclaimer: The information on this web site is for informational purposes only and does not constitute legal advice. The information on this page is attorney advertising. Reading and relying upon the content on this page does not create an attorney-client relationship. If you are seeking legal advice, you should contact our law firm for a free consultation and to discuss your specific case and issues.
References:
[1] https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/8/00101.htm
[2] https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/14/01201.htm
