As the medical bills mount, you’re forced to confront a question you never thought you’d have to answer:
Can a minor file a personal injury lawsuit?
Let’s answer this question so you can confidently consider your legal options and protect your child’s rights.
In order to file a lawsuit in the United States, a person must have something called “legal capacity.”
The two most common examples of individuals who do not have legal capacity under the law are:
- Minors: Minors are defined as individuals under the age of 18.
- Mentally incapacitated individuals: Persons who are mentally incapacitated due to conditions like dementia, severe mental illness, or certain intellectual disabilities lack the legal capacity to file lawsuits.
Courts tend to presume that an individual has the mental capacity to file a lawsuit. However, doubts can be brought forward by the judge or any party involved in the case. If capacity is challenged, the burden of proof typically lies with the person raising the challenge.
How can a minor who lacks legal capacity seek compensation?
Fortunately, just because minors don’t have the legal capacity to file lawsuits themselves doesn’t mean they are without legal options.
In most states, when a minor has a claim for a personal injury, a parent or legal guardian initiates the lawsuit on the minor’s behalf. The parent or guardian initiating the lawsuit is commonly referred to as the minor’s “next friend,” and they are tasked with representing the minor’s interests.
If a minor doesn’t want their parent or legal guardian to file a lawsuit on their behalf, they have two other options:
- Wait until the minor turns 18: The minor can wait until they turn 18 to file the lawsuit themselves. The law will typically toll (i.e., pause) the statute of limitations until the minor turns 18. At that point, the statute of limitation will begin to run, and the individual will have a certain amount of years—depending on the state— to file the lawsuit or risk being permanently barred from filing the lawsuit.
- Guardian ad litem: A minor can request, through the court, a guardian ad litem to file a lawsuit on their behalf and represent their interests in court. A guardian ad litem is often appointed when a minor is suing their parents, or there is some other reason that the minor’s parents or legal guardian cannot adequately represent their interests.
The long-term impact of injuries on minors
When a minor is injured, it’s normal for a parent or guardian to become focused on the minor’s immediate needs. But it’s important to consider the long-term cost of the injury on the minor’s life.
A severe injury can alter a young person’s future in profound ways. When pursuing damages, it’s important to consider future medical expenses, psychological expenses, and the limitations the injury may place on the young person’s educational and career opportunities.
Perhaps surprisingly, parents often underestimate the real cost of their child’s injury when attempting to place a value on their claim. This can lead the parent or guardian to accept a lowball settlement offer.
An experienced attorney can review a case and calculate the real value of the case.
The court’s role in protecting minors
Courts play a critical role in safeguarding the interests of minors in personal injury lawsuits. For example, any settlement reached in a minor’s personal injury lawsuit must be approved by the court to ensure the minor receives fair compensation for their injuries.
What’s more, settlements and verdicts cannot be deposited in the personal account of the parent, guardian, or guardian ad litem. Rather, the money must be placed in a separate account for the minor to be held there until the minor turns 18. If the minor needs access to the money before then (for medical expenses, for example), the parent, guardian, or guardian ad litem must receive permission from the court to withdraw the necessary amount.