What is Guardian Ad Litem in a Personal Injury Claim?

Last updated on: November 30, 2022

Sadly, sometimes children are amongst the victims of situations that merit personal injury lawsuits. Fortunately, the law allows compensation to be pursued for the interests of a child who was the victim of another party’s negligence. However, a child is not considered competent to pursue a lawsuit and obtain legal representation in the same way an adult is, and so courts make sure the best interests of the child are represented by a guardian ad litem, who will protect the interests of the child in the case at hand—guardian ad litem literally means, “guardian for the suit.”

While it might sound like an unusual concept, guardians ad litem are often appointed when minors are involved in a court case, with one common example outside of personal injury suits being custody hearings between divorced parents. If you or a loved one has had a child injured and you are wondering about the possibility of a lawsuit, contact the child injury lawyers at Zinda Law Group today for a free case consultation.  

How Does Guardian Ad Litem Work?

The idea of a guardian or a conservator might be familiar to most people—an individual placed in a legal position allowing them to look after the interests of a ward, someone who is not able to look after their interests themselves, whether by incapacity or due to young age. A guardianship or a conservatorship might last indefinitely, if the incapacity of the ward is permanent, or, in the case of age or temporary incapacity, for a fixed period of time until the ward has the capacity to attend to their own affairs. In contrast, a guardian ad litem is appointed to only represent the interests of the ward for the case at hand, and the relationship does not extend to other cases or other areas of the ward’s life.

A guardian ad litem is paid for their work, and generally the judge decides which of the parties is responsible for the fee. In personal injury cases, that individual is likely to be the defendant.

Who Can Be Appointed Guardian Ad Litem?

If a ward already has a guardian of their estate, then that individual is likely to he appointed as the guardian ad litem. If not, a parent can act as a guardian ad litem, but only if the parent is not involved in the lawsuit the minor is being represented in. This is true for the most common usage of guardians ad litem, custody suits, but can also be true in a personal injury case if the parent and child are both suing in the same case.

If a parent or other family member without an interest in the child’s case wants to act as the guardian ad litem for that child, most court systems require them to submit a form applying for the role. This is often included with the initial complaint, as the guardian ad litem is the only one able to make decisions on behalf of the child and therefore should be appointed as soon as possible.

Appointing a Guardian Ad Litem

Typically, when a parent is unable to stand in for their child, the court system will maintain a list of qualified attorneys able to act as guardians ad litem. While the guardian at litem appointed by the court is likely to be an attorney, they are not acting as a second litigator in the child’s case. Instead, they will be fulfilling the role that the child does not have the capacity to fulfill in terms of consulting with the attorney representing the child, making decisions regarding settlement issues, communicating about the case to the child in an age-appropriate way, and assisting in whatever preparation of the case the attorney needs.

Not every attorney in the state is able to act as a guardian ad litem. Attorneys who qualify to be appointed by the court as a guardian ad litem must receive special certification for this status. The process for appointing and applying to be guardians ad litem varies from state to state, so it is beneficial to consult with a lawyer if you have questions about your jurisdiction.

Settlement Issues in Cases Involving Minor Children

When a child recovers money in a personal injury lawsuit, that money is legally the child’s only, and the child’s parents do not have access to it or the ability to make decisions about it off of their authority as parents. In most cases, the only one who has authority to make decisions about the child’s claim is the guardian ad litem.

When a guardian ad litem accepts a settlement offer on behalf of a minor child, it is a very serious situation because, as with every settlement, acceptance signifies the relinquishing of a legal claim. When the legal claim does not belong to you, but to someone without the capacity to advocate for themselves, the court wants to be certain that the best interests of the child are being preserved, and thus will scrutinize the decisions of the guardian ad litem.

When a settlement is reached, the guardian ad litem has to file with the court so that a judge can review the reasonableness of the settlement in light of protecting the interests of the minor child. Depending on the settlement amount, the court will decide how the settlement should be handled; smaller settlements, less than $5000, are often managed without court supervision by the parents of the minor child, whereas with larger settlements the court will decide how best to handle the money until the minor child attains his majority.

Preparing the Case

Good guardians ad litem do not just sign off on settlements the moment that they see them. Typically, a guardian ad litem will request all of the relevant information in a case, including pleadings and depositions but also information such as medical records, as well as input from the child him or herself. The guardian ad litem wants to make sure that he knows all the facts of the accident in order to determine whether or not the settlement is fair, as well as whether the minor child will have any ongoing injuries or conditions that would need continuous care, as that impacts the settlement amount.

Is the Guardian Ad Litem Biased?

The guardian ad litem is focused on the best interests of the minor child involved in the case. Any party that could possibly be biased or have an interest in the case themselves cannot be appointed as a guardian ad litem in order to eliminate any possibility of bias.

Get Help From Zinda Law Group Today

Personal injury cases are never easy, but personal injury cases with minor children can be extremely complicated. Whether you find yourself applying to act as a guardian ad litem for your child or find yourself needing to work with one in your child’s lawsuit, it’s important to have experienced legal counsel to guide you and your child through this process.

If you or a loved one is seeking to pursue a personal injury suit on behalf of a minor child, contact the personal injury lawyers at Zinda Law Group today for a free case consultation. Zinda Law Group operates on a contingency fee basis, meaning that you will only pay if you receive a favorable settlement—otherwise, you won’t pay anything.