One question that we are frequently asked by parents after a child has been injured is, “What should I do?”
This is a difficult question for parents to ask because they must face a few competing instincts. Almost every parent realizes the enormous responsibility they have to look out for the best interests of their child. Frequently children are injured in events that are truly accidents, such as when another parent driving your child home from school gets into a car crash or when a friend’s dog bites your child or when they are injured while playing at a friend’s home or in the neighborhood. In situations such as this, where the parent has a relationship with the at-fault party, there is an instinct to excuse the wrongful conduct that injured the child as an accident. However, as a parent you have a legal responsibility to safeguard the righst of your child, and failing to take prompt action to protect your child’s rights can compromise their rights through the loss of evidence due to fading memories and the passing of time.
The most important thing that must be done following an accident is to make sure that the injured child receives appropriate medical care. All Illinois children should be eligible to receive needed care through the Kids First insurance program even if there is no private health insurance coverage. Further, there is frequently insurance coverage just for medical payments under a no-fault coverage called medical payments or medical expense coverage under the homeowner’s or automobile liability coverage of the at-fault party.
While adults are generally free to settle their personal injury claims on whatever terms they choose, the rights of children cannot be settled as easily. Minors are considered to be under a legal disability until they turn 18. Once they turn 18, they can settle their personal injury cases in any way they see fit. However, until they turn 18, any settlement involving a minor does not become final without court approval.
In order to obtain court approval, a petition for guardianship of the estate of the minor must be filed in probate court. While the term “estate” sounds strange for a living, breathing child as opposed to a dead person, the an estate is a legal device that is used to hold assets. When there is a potential personal injury claim for a minor, the estate contains the cause of action (or case) and eventually the funds from the settlement of the claim.
In order to obtain approval of the settlement of minor’s claim from the probate court, the judge must be provided with a great deal of information:
- The facts of the accident and the identity of the potentially liable parties;
- The legal basis of the claim and any possible defenses;
- The nature of the injuries and the medical expenses incurred;
- The extent to which the injured child has recovered from the injuries and his/her prognosis;
- The amount of liability insurance coverage available;
- The amount of attorney’s fees and case file expenses incurred in prosecuting the case; and
- The final net amount due to the minor.
If the judge approves the settlement, the money must be deposited into a bank account approved by the court with the proviso that the money cannot be withdrawn without order of court until the 18th birthday of the injured child. Once the child turns 18, he or she is now an adult and is free to do with his or her money what she pleases. The reason that the money must be deposited into a restricted bank account is to keep the child’s parents from helping themselves to the child’s money. After all it was the child, not the parent, who was hurt in the accident, and the child should get the benefit of the settlement.
This is not to say that the money must stay in the account until child turns 18. The money can be withdrawn with approval of the court. This requires that a petition be filed with the court stating how much is being requested to be withdrawn, and for what purpose. The judge then gets to decide whether it is in the best interests of the child to have the money withdrawn. This gives the judge an enormous amount of discretion as to whether to allow the money to be withdrawn or not. Generally, most judges will not allow the money to be withdrawn for what are otherwise normal child-raising expenses that a parent would have to pay for if the minor’s money was not available. Once a withdrawal from the account is approved, then a receipt must be produced for the court showing that the money was used for the purpose requested. This helps the court make sure that the money is available for the injured child when he/she turns 18 years old.
For parents who are concerned about what will happen when their child suddenly comes into a large sum of money upon turning 18, there are a number of options that will avoid having a child becoming suddenly very wealthy upon turning 18. These are subject to the approval of the court and generally must be arranged at the time of the settlement. The most important of these is the structured settlement. Please see our article on structured settlements for more information. A very common use of a structured settlement is to set up a “college fund” for the child so that they will receive payments from the structured settlement as college tuition payments are expected to come due. You can discuss this with your structured settlement advisor.
Injuries to children cause a great deal of anxiety for parents, not only over their child’s recovery from the injuries, but making sure that they are doing the right thing for their child from a legal perspective.
The best thing that any parent can do is hire an experienced Chicago personal injury lawyer to help guide them through this process.
