Guardian ad Litem
Guardian ad Litem in personal injury cases involving minors
A Guardian ad Litem is an officer and advisor of the court in personal Injury settlements involving minors and incapacitated persons. I have served as a court appointed Guardian ad Litem many times and in many Texas counties since 1990 and work hard to appropriately advise the court in matters regarding the best interests of minors and incapacitated persons.
A typical case involving a Guardian Ad Litem is where a claimant, or her attorney if she is represented, settles the minors’ case either before or after a personal injury lawsuit is filed. If no lawsuit exists, one is filed on behalf of the minor called a “Friendly Suit”. The parent(s) of the minor is named as “Next Friend” to represent the interests of the minor in most cases. A motion to appoint a Guardian Ad Litem is filed and an order is entered naming a Guardian Ad Litem. In Bexar County, the Guardian Ad Litem is usually agreed upon by all parties to the “Friendly Suit”. The Guardian Ad Litem is an attorney, preferably with a personal injury background.
The Guardian Ad Litem investigates the claim by reviewing, among other things, the minor’s medical records, medical bills, police report and proposed distribution of settlement funds. He interviews the next friend to determine the nature and extent of the minor’s injuries and the minor’s current medical condition. If appropriate, he may want to meet with the minor, especially if the minor has disfiguring injuries. The funds that are left over for the minor’s benefit after payment of medical bills or liens, health insurance subrogation interests or Medicaid liens, attorneys fees and legal expenses are invested by the court according to section 142 of the Texas Property Code. The Guardian Ad Litem prepares a report to the court with his recommendations.
The next friend, her attorney and the Defendant’s attorney attend a hearing at the court house and explain to the judge assigned to the “Friendly Suit” how the accident occurred, the nature and extent of the minor’s injuries, what the case settled for and the proposed distribution. The minor may be required to attend, but not in most cases. The Guardian Ad Litem makes his recommendations regarding the best interests of the minor in accordance with his report. The judge will make a ruling regarding the adequacy of the settlement and proposed distribution, including the investment of the funds available to the minor. The next friend will testify briefly about her understanding of the settlement, the finality of the case and whether she feels the settlement is in the best interests of the minor.
The Guardian Ad Litem is not the minor’s attorney, but an officer and advisor of the court. The judge hearing the “Friendly Suit” has the ultimate say on whether the settlement and proposed distribution is in the best interests of the minor. If the judge signs a Judgment, the case is over and the funds will be distributed in accordance with the judge’s ruling, which is contained in the Judgment. The Guardian Ad Litem is then discharged and his fee is paid as a cost of court, normally by the insurance company for the Defendant and not from the minor’s settlement.