Please accept this blog entry as this week’s topic from the injury lawyer and accident attorney (Boca Raton, West Palm Beach, Loxahatchee, Palm Springs, Wellington, Boynton Beach, Delray Beach, Manalapan, North Palm Beach, Palm Beach, North Lake, Palm Beach Gardens) at Drucker Law Offices.
First of all, if the child is over the age of 18 and thus an adult, the parent really has no obligations and the child is able to sign a contract with the lawyer and is able to both make the decisions regarding his case and to sign any papers related to the accident. Obviously, the parent in this situation can provide support and guidance to the child.
When the child is under the age of 18, then the Florida Statutes have certain rules that apply. If the settlement is $15,000 or less, the parents have the rights as the child’s natural guardians, to resolve the case without court supervision. If the gross amount of the settlement is above $15,000 and up to $50,000, the court may appoint a disinterested expert (guardian ad litem) to review the settlement. The guardian ad litem generally charge a fee for this so that they can advise the court on whether the settlement is fair and so forth. When the gross amount of the settlement is greater than $50,000, then the court must appoint the disinterested expert/guardian ad litem to review the case. These precautions are done so that the settlement monies are available for the child when the child reaches maturity. In these cases, the monies that are held for the child can be supervised by the court and can be placed in income producing accounts on behalf of the child. In other cases, annuities are set up for the child, so that the money hopefully grows and increases with inflation and so forth. All of these precautions are set up so that in the larger cases, the monies are set up to be in the best interests of the child and will be there when the child reaches maturity.
Of course, every case is different and needs to be judged based on the facts of each case. It is a good idea to get a consultation regarding an accident case in case this happens to you. The advise contained in this blog is intended to be of general nature and not as to a specific situation, so pelase call a licensed Florida attorney, like attonrey Gary J. Drucker, to determine if and how Florida law applies to your case.
If you child has been in an accident, you may need the services of an injury and accident lawyer. At Drucker Law Offices, clients are helped with injuries and some of these clients are minors. Afree consultation is offered to clients and fees are only charged if your case is successfully resolved. Please call the law firm at 561-483-9199 (Palm Beach County), 305-981-1561 (Miami-Dade County), or 954-755-2120 (Broward County).
Every case is unique and should be judged based on the specific facts of the case. The advice in this blog is intended to be general and should not to be construed as specific advice for a case or your case. A minor difference in the facts of the case in a fact pattern such as above could change the result. Also, this blog is, as the web site suggests, based on Florida law and the laws of any other states could vary from Florida.
The applicable statues are below:
744.301 Natural guardians.—(1) The mother and father jointly are natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom custody of the child is awarded. If the parents are given joint custody, then both continue as natural guardians. If the marriage is dissolved and neither the father nor the mother is given custody of the child, neither shall act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.
(2) Natural guardians are authorized, on behalf of any of their minor children, to:
(a) Settle and consummate a settlement of any claim or cause of action accruing to any of their minor children for damages to the person or property of any of said minor children;
(b) Collect, receive, manage, and dispose of the proceeds of any such settlement;
(c) Collect, receive, manage, and dispose of any real or personal property distributed from an estate or trust;
(d) Collect, receive, manage, and dispose of and make elections regarding the proceeds from a life insurance policy or annuity contract payable to, or otherwise accruing to the benefit of, the child; and
(e) Collect, receive, manage, dispose of, and make elections regarding the proceeds of any benefit plan as defined by s. 710.102, of which the minor is a beneficiary, participant, or owner,
without appointment, authority, or bond, when the amounts received, in the aggregate, do not exceed $15,000.
(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:
NOTICE TO THE MINOR CHILD’S NATURAL GUARDIAN
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF ( name of released party or parties ) USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM ( name of released party or parties ) IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND ( name of released party or parties ) HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
(c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.
1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.
2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.
3. If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence.
(d) Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.
(4) All instruments executed by a natural guardian for the benefit of the ward under the powers specified in this section are binding on the ward. The natural guardian may not, without a court order, use the property of the ward for the guardian’s benefit or to satisfy the guardian’s support obligation to the ward.
744.3025 Claims of minors.—(1)(a) The court may appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s portion of the claim in any case in which a minor has a claim for personal injury, property damage, wrongful death, or other cause of action in which the gross settlement of the claim exceeds $15,000.
(b) The court shall appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s claim in any case in which the gross settlement involving a minor equals or exceeds $50,000.
(c) The appointment of the guardian ad litem must be without the necessity of bond or notice.
(d) The duty of the guardian ad litem is to protect the minor’s interests as described in the Florida Probate Rules.
(e) A court need not appoint a guardian ad litem for the minor if a guardian of the minor has previously been appointed and that guardian has no potential adverse interest to the minor. A court may appoint a guardian ad litem if the court believes a guardian ad litem is necessary to protect the interests of the minor.
(2) Unless waived, the court shall award reasonable fees and costs to the guardian ad litem to be paid out of the gross proceeds of the settlement.
744.387 Settlement of claims.—(1) When a settlement of any claim by or against the guardian, whether arising as a result of personal injury or otherwise, and whether arising before or after appointment of a guardian, is proposed, but before an action to enforce it is begun, on petition by the guardian of the property stating the facts of the claim, question, or dispute and the proposed settlement, and on any evidence that is introduced, the court may enter an order authorizing the settlement if satisfied that the settlement will be for the best interest of the ward. The order shall relieve the guardian from any further responsibility in connection with the claim or dispute when the settlement has been made in accordance with the order. The order authorizing the settlement may also determine whether an additional bond is required and, if so, shall fix the amount of it.
(2) In the same manner as provided in subsection (1) or as authorized by s. 744.301, the natural guardians or guardian of a minor may settle any claim by or on behalf of a minor that does not exceed $15,000 without bond. A legal guardianship shall be required when the amount of the net settlement to the ward exceeds $15,000.
(3)(a) No settlement after an action has been commenced by or on behalf of a ward shall be effective unless approved by the court having jurisdiction of the action.
(b) In the event of settlement or judgment in favor of the ward or minor, the court may authorize the natural guardians or guardian, or a guardian of the property appointed by a court of competent jurisdiction, to collect the amount of the settlement or judgment and to execute a release or satisfaction. When the amount of net settlement to the ward or judgment exceeds $15,000 and no guardian has been appointed, the court shall require the appointment of a guardian for the property.
(4) In making a settlement under court order as provided in this section, the guardian is authorized to execute any instrument that may be necessary to effect the settlement. When executed, the instrument shall be a complete release of the person making the settlement.
