Florida Probate Blog
Child settlements requiring a guardian ad litem in Florida can slow down the resolution of a case, however it is possible to have this requirement waived. In many child injury claims, it is within the court’s power to require a guardian ad litem to submit an opinion on the adequacy of a proposed settlement. While the intention of this rule is good, securing a GAL report may be redundant and can sometimes be avoided. Although Florida Statute section 744.3025(1)(b) provides that a guardian ad litem (GAL) is to be appointed when a minor’s settlement equals or exceeds $50,000.00, section 744.3025(1)(e) dispenses of the requirement if a guardian of the minor is appointed and the guardian has no potential adverse interest.
Because minor settlements netting more than $15,000.00 to the minor already require a guardian of the property (a different role than a GAL) to be appointed, the exception contained in section 744.3025(1)(e) is applicable more often than not. Section 744.3025(1)(e) reads as follows: “A court need not appoint a guardian ad litem for the minor if a guardian of the minor has previously been appointed and that guardian has no potential adverse interest to the minor. A court may appoint a guardian ad litem if the court believes a guardian ad litem is necessary to protect the interests of the minor.”
Thus, when a guardian of the property with no adverse interest to the minor is appointed to facilitate the settlement, the court may waive the requirement for a GAL.
Florida Probate Rule 5.636(d) supports this interpretation of the statute stating that a GAL shall be appointed when the settlement exceeds $50,000.00, “IF (a) there is no court appointed guardian of the minor; (b) the court appointed guardian may have an adverse interest; OR (c) the court determines the representation of the minor is otherwise inadequate.”
In determining whether the guardian of the property has a conflict of interest, we must ask if that guardian would benefit in any way from accepting an inadequate settlement on behalf of the minor. The most common conflict of interest is when the guardian of the property has their own claim arising from the same incident as the minor’s claim (typically when the guardian of the property is a parent). In such a case the guardian and the minor may divide a limited pool of settlement funds. In such a case, a GAL should be appointed.
For more information on child settlements, see our child injury flowchart here.
If you have questions about guardianship issues affecting your settlements, call (352) 354-2654 or email cdavid@floridaprobatelawgroup.com.