Car accidents, slip and falls, and recreational accidents are just a few examples of incidents which can result in a serious personal injury. Anyone may be injured in an accident, including individuals under the age of majority and are considered mentally incapable of making vital decisions relating to their health and well-being. Further, individuals over the age of majority but lacking the mental capacity to make specific decisions may require additional support in the litigation process. Injured individuals who fall into these circumstances will be unable to commence legal action on their own and, therefore, will require a “litigation guardian” to make decisions on their behalf throughout the process.

Differences to be aware of in a minor’s personal injury claim

When an injured party is a minor, there are unique factors and considerations to be aware of. There are two key differences between a minor’s personal injury claim and someone over the age of majority: limitation periods and litigation guardian requirements. 

Litigation Guardians are most commonly known for their role in personal injury cases, however, they are required in other areas of law. A litigation guardian maintains substantial responsibility throughout the matter by providing special representation on behalf of the plaintiff.

Who Needs a Litigation Guardian?

In order to pursue a compensation claim, a minor must be represented in the proceedings by a litigation guardian. In Alberta, the age of the majority is 18 years old. Therefore, anyone under the age of 18 at the time of litigation will require assistance from a litigation guardian.  

Who Can Become a Litigation Guardian?

Generally, a litigation guardian can be anyone over the age of majority. In most cases, a litigation guardian falls naturally to the plaintiff’s parent or guardian. 

Those over 18 years old are considered capable of making decisions and providing instructions and may act as litigation guardians. However, this may be subject to any mental, physical or psychological incapacities. 

When an individual is prepared to take on the role of a litigation guardian, they must apply to the court for approval. 

The Public Trustee may be appointed if no one is willing or able to act as a litigation guardian. 

What Does a Litigation Guardian Do?

A litigation guardian is an individual who makes all of the decisions regarding a personal injury claim on behalf of a minor. Generally, a litigation guardian has the authority to make various decisions relating to appointing and retaining a lawyer on behalf of the plaintiff, making decisions throughout negotiations, proceeding to trial, accepting a settlement offer, and discontinuing a claim. They will also be responsible for communicating with, and providing instructions on behalf of, the plaintiff to their lawyer.

Calculating a Limitation Period

Section 5.1 of the Limitations Act in Alberta states that the limitation periods set out in the Act are “suspended during the period of time that the claimant is a minor.” Unlike the usual two-year limitation period, which begins from the date of the accident or known injury, the two-year period for a minor does not commence until they turn 18.

An exception to this rule may occur when a potential defendant notifies The Public Trustee that a claim may be commenced against them by a minor. After such notice, the two-year limitation period may begin to run. 

As the limitation date may vary, it is important to speak with an experienced personal injury lawyer who can advise on limitation period concerns. It is important to note, however, that if an adult over the age of majority was injured due to the same accident as a minor, their claim is governed by the usual two-year limitation period.

Settling a Minor’s Personal Injury Claim

The Minors’ Property Act states that before a settlement becomes binding on a minor, it must be signed off on by the minor’s parent or guardian (litigation guardian) and is subject to court approval.

A minor cannot sign legal documents. Therefore, court approval is required before a case can settle, even after the parties have agreed. The court must be satisfied that the proposed settlement equates to fair and just compensation and that the settlement is in the plaintiff’s best interest. 

The Role of The Public Trustee 

Depending on the amount of the settlement, different requirements may apply. For settlements under $25,000, a parent or guardian may manage the funds on behalf of, and in the best interest of, the minor. The plaintiff’s needs must always be prioritized. However, an acknowledgment from the minor’s parent or guardian is required before funds can be transferred to the appropriate adult. 

The Public Trustee will be involved in and responsible for handling a settlement for a minor greater than $25,000. The settlement funds will be held for the benefit of the minor and paid to the plaintiff when they reach 18 years of age. 

The Reputable Personal Injury Lawyers at Cuming & Gillespie LLP Help Minors Pursue Claims for Personal Injury Matters

At Cuming & Gillespie LLP, our trusted personal injury lawyers have helped clients of all ages pursue compensation claims after an accident. Injuries can seriously impact a minor’s future and require immediate professional care and attention. A compensation claim can be tricky to manage, but when dealing with a claim on behalf of a minor, this can become even more complicated. If your child has been injured due to someone else’s negligence, the lawyers at Cuming & Gillespie LLP are ready to help. To speak with a member of our firm regarding your questions and concerns about a minor’s injury claim, call our office at 403-571-0555 or contact us online.