In Washington, there are special conditions that must be met for the settlement of a child injury claim. In every settlement of a minor's claim, whether filed in court or not, the Superior Court shall determine the adequacy of the proposed settlement and decide whether to reject or approve it. To assist the court in determining whether a minor child settlement is reasonable, the court will also appoint a Settlement Guardian ad Litem (SGAL). Usually, the SGAL is an experienced attorney, but not always. The SGAL has the job of investigating the facts of the case, reviewing records and pleadings, interviewing the parents or legal guardians, and then determining whether the amount of the settlement is reasonable. To start the settlement process for a child, a petition must be filed in court, formally asking the judge or commissioner to appoint the person who will act as the SGAL. That person must be approved by the court. Essentially the role of the SGAL is to investigate the relevant facts concerning the child's case and the proposed settlement. The SGAL analyzes the course(s) of action available to the child in the underlying action. The SGAL identifies the course(s) of action that the SGAL thinks will best serve the child's interests, and makes a report and recommendation to the court concerning those interests. The role of other parties involved, who often include the child's attorney and parents or guardian, is to assist the SGAL by providing information, answering questions, and highlighting any concerns. The SGAL must conduct an investigation and compile a report containing his or her recommendation on whether the settlement should be approved or rejected. The SGAL's investigation usually includes reviewing all of the medical records, expert reports, pleadings, and other documentation to support the claim. The SGAL usually will want to talk to the child and/or the child's parents or guardian about the effect of the child's injuries and the settlement proposal. The SGAL will also want to talk to the child's attorney to understand all of the legal issues involved and the attorney's rationale for recommending that the settlement offer be approved. One of the issues for the SGAL to investigate and report on to the court is what to do about the child's net settlement proceeds (i.e., the amount of money left over after fees, costs, and liens have been paid). Basically, there are three options:
(1) establishing a blocked bank account for the minor,
(2) purchasing an annuity that will make future payments to the minor after he or she turns 18, or
(3) creating a managed trust account for the benefit of the minor child.
Sometimes a combination of the three options is utilized, depending on the amount of the settlement and the age of the child. Once the SGAL has concluded the investigation and issued a report, the child's attorney must draft and file a petition with the court asking the judge or court commissioner to approve the settlement. A hearing will be set. The child's attorney, the parents, and the SGAL will usually have to attend the hearing. Sometimes it is a good idea for the child to appear, depending on age and the issues involved. The hearing allows the court to ask any questions about the SGAL's investigation and report. Sometimes the court will ask the parents questions to learn more about the child's injuries or prognosis. If the court approves of the settlement, an order will be entered setting forth the basis for approval and ruling how the settlement proceeds will be disbursed and held and/or invested on behalf of the child. It is important to understand that the settlement approval process concerning a minor child injury claim can take weeks or even several months, depending on the complexity of the case and the amount of the settlement proceeds involved. Sometimes the settlement process can be initiated early in the claim, enabling the SGAL to participate in settlement discussions with the other party's insurance carrier. Sometimes this may not be practical if there are other demands involved with the claim, like litigation or an impending trial date. Every case is different, and the parents should expect to speak to the attorney about what to expect in their child's claim.
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