For minors and incapacitated adults (Protected Person(s)), assistance with personal injury claims can be a challenge. It can be difficult to navigate the legal system, and even more so if the person injured is a minor or has been deemed incapacitated. Family members are often tasked with the responsibility of making decisions for Protected Persons in personal injury litigation; but, conflicts may arise between the family members and the Protected Person, such as a parent agreeing to settle a case for a minor child when both of them were involved in the accident. Courts are increasingly recognizing the needs of potentially vulnerable Protected Persons, and recent policy and statutory changes to minor and adult guardianship statutes indicate a shift toward additional safeguarding of Protected Persons. Utilization of guardian ad litems (GALs) in litigation ensures the rights of the Protected Persons are secure. In the arena of personal injury litigation, it is more important than ever for attorneys to be aware of the unique services that GALs can provide to Protected Persons.
When Is A GAL Necessary?
Minor’s claims are typically handled through the minor compromise process pursuant to NRS 41.200. This process may be satisfactory in many cases, but in highly contested matters or complex litigation, it can be beneficial to have separate representation solely for the minor, especially if there are substantial injuries to the minor and the parent is also a plaintiff.
Claims made by an incapacitated adult may be difficult because adults who have been deemed incapacitated may regain capacity or may suffer reduced capacity as a result of an injury. They may also have executed powers of attorney or other documents authorizing others to make decisions on their behalf. Depending on the level of incapacity and the estate planning documents executed by the adult, a guardianship may be necessary to handle matters beyond the personal injury litigation, but a GAL can certainly be appointed for the purpose of the litigation to ensure the best result for the Protected Person.
The Role Of The GAL In Personal Injury Litigation Process
GALs are court appointed. GALs often work in the family law arena where they are authorized to investigate solutions that would be in the “best interest” of a minor child. In this area, GALs are afforded broad authority, and deal with all issues, including custody battles, visitation rights, and child support issues.
In the personal injury litigation area, GALs play a substantially different, more limited role for the Protected Person. In personal injury cases, the GAL has no authority outside the scope of the litigation, even where the personal injury litigation involves a minor plaintiff and the GAL believes the decisions are in the best interest of the minor. Although the ultimate goal of the GAL is the same in this litigation context and the GAL must advocate for the best interest of the child throughout the litigation process, a GAL in a personal injury case should have general knowledge of personal injury law. The GAL should be able to analyze potential issues regarding liability, damages, and future medical needs of the Protected Person.
In personal injury litigation, the GAL should attempt to maximize the Protected Person’s award. If, for example, a minor is rendered a paraplegic or will be in a wheelchair for an indefinite period of time, it might be appropriate, and would be in the minor’s best interest, to allow the parents to purchase from the proceeds of the settlement a van with wheelchair lifts to enable the minor to live a more active life.
Further, a question of settlement is often at issue, and the pressure to settle can be heightened by time constraints and mounting medical bills. As a result, a Protected Person, and their parent or guardian, may be inclined to accept a quick, and often under-value, settlement. In this situation, the GAL serves to evaluate the long-term consequences of a rapid settlement.
Appointment Of The GAL
The appointment of a GAL is more than a mere formalism. Typically, a parent of a minor involved in personal injury litigation will be appointed as the minor’s GAL. However, in some jurisdictions, parents may not act as the GAL if there appears to the court to be a conflict of interest adverse to the minor child. For example, if a parent is injured in the same accident, there may be a conflict when it comes to determining who is at fault during settlement discussions. If there is a conflict of interest, a parent’s request for appointment should be denied.
Appropriate safeguards also need to be put into place to ensure that the funds are available to the minor when he or she emancipates, which are typically done through minors compromises and blocked accounts. There are far too many instances where there is nothing left for the minor because the parents have spent all of the money. Appointment of a GAL can ensure that the assets are preserved for the Protected Person.
Other states have strict rules for appointment of GALs. In Texas, a court can appoint a GAL either on its own initiative, or in response to a motion filed by any party to the case. Similarly, Florida law is strict regarding the representation of the economic interests of minors involved in litigation, providing that a minor’s parents can only settle on their minor’s behalf without court intervention when the gross value of the settlement is $15,000 or less. When a minor has a settlement whose gross value is between $15,000 and $50,000, the court has discretion to require appointment of a GAL. If a minor has a settlement whose gross value exceeds $50,000, the court must appoint a non-parent guardian or GAL.
Federal GAL Statutes
GAL statutes are governed by Federal Rule of Civil Procedure 17(c). Under this rule, a court must appoint a GAL—or issue another appropriate order—to protect a Protected Person who is unrepresented in an action. The court in Davis v. Walker held that “the purpose of Rule 17(c) is to protect an incompetent person’s interests in prosecuting or defending a lawsuit. Ordinarily, when a substantial question exists regarding the mental competence of a party proceeding pro se, the proper procedure is for the district court to conduct a hearing to determine competence, so a GAL can be appointed, if necessary.
Nevada’s GAL Statutes
The majority of Nevada guardianship laws are located in Nevada Revised Statute Chapter 159. Similar to the federal rules, NRCP 17(c) provides that the court shall appoint a GAL for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.
While Nevada still has room to grow in compelling GALs for Protected Persons involved in personal injury litigation, the Legislature has made progress. On June 12, 2017, the Nevada Guardianship Compliance Office was created by Assembly Bill 130, as part of the Administrative Office of the Courts, Supreme Court of Nevada. The Bill established the GCO to provide additional services to the Nevada District Courts during the administration of guardianship services. The GCO acts to identify reporting deficiencies by GALs and works with the district courts to implement best practices in managing guardianship cases.
Last year, the Nevada Legislature also enacted measures to safeguard older and vulnerable citizens from those who might exploit them. It passed Senate Bill No. 360, which increases both civil and criminal accountability in guardianship cases and also establishes the Protected Persons Bill of Rights, as well as Senate Bill No. 433, which ensures that Protected Persons cannot be isolated, and compels the court to hear Protected Persons cases in an expedited manor. Senate Bill No. 433 also makes sure that Protected Persons will have legal representation and authorizes the court to impose fines and order restitution in cases where guardians are guilty of impropriety.
In sum, the role of a GAL in personal injury cases of Protected Persons is extremely important. From protecting the rights of these clients to ensuring adequate settlements, the services provided by a GAL are imperative. Attorneys should recognize the value of the GAL in personal injury cases involving Protected Persons and should not hesitate to seek out their assistance.
Nedda Ghandi, Esq., is the founding partner of Ghandi Deeter Blackham Law Offices. A Nevada native, Ghandi is a graduate of the Univertisy of Nevada, Las Vegas William S. Boyd School of Law and has practiced law in Las Vegas for 9 years. Ghandi has written numerous articles for publications concerning interesting developments in the law, and has been selected as a member of Nevada’s Legal Elite and as a Super Lawyer every year since 2013. Ghandi Deeter Blackham specializes in family law, bankruptcy, guardianship, and probate. Consultations may be scheduled by calling 702.878.1115 or visiting www.ghandilaw.com
1. The Honorable Mark Davison, Judge, 11th District Court, Role of the Ad Litem in Personal Injury Cases, December 6, 2003, Houston Bar Association Civil Court Ad Litem Seminar
2. Davison, Id.
3. Ellen K. Solender, The Guardian Ad Litem: A Valuable Representative or an Illusory Safeguard?, 7 Tex. Tech L. Rev. 619, 619 (1976)
5. 745 F.3d at 1310.
6. Kuzmicki v. Hanrahan, No. 3:17–cv–00342–RCJ–VPC, U.S. 2018 WL 2088745, (D. Nev. May 4, 2018) (Citing Krain v Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989).