Understanding the Guardian ad Litem in a Minor’s Injury Settlement

Imagine a 10-year-old who was hurt in a car crash. The parents and the insurance company reach a settlement. Before the court approves any payout for the child, someone must protect the child’s legal interests and make sure the proposed deal is fair. That person is often a guardian ad litem (GAL). This article explains the GAL’s role in Virginia, how courts appoint one, whether a parent can serve, and practical steps you can take.

Detailed Answer

What a guardian ad litem does in a minor’s injury settlement

• Independent representation: A GAL is an independent representative appointed by the court to protect the minor’s legal interests when the minor cannot act for themselves.
• Fact investigation: The GAL investigates the case facts, reviews medical records, examines evidence about damages and future needs, and may consult experts if needed.
• Evaluate fairness: The GAL evaluates whether the proposed settlement reasonably compensates the minor for past and future medical costs, pain and suffering, lost earning capacity, and other damages.
• Advise the court: The GAL reports to the court (often in writing and sometimes in person at the settlement hearing) about the fairness of the settlement and recommends approval, rejection, or modification.
• Advocate for protective terms: The GAL can request protective measures such as a structured settlement, a blocked bank account, trust language, or court-supervised distribution to protect the child’s funds over time.
• Fee oversight: The GAL reviews attorney fee arrangements affecting the settlement and advises the court whether attorney fees are reasonable and properly allocated.

How Virginia law governs appointment and review

Virginia handles appointment of a guardian ad litem for infants and incapacitated persons under its civil procedure rules and statutes that govern civil actions and guardianship processes. For background on Virginia civil procedure generally, see Title 8.01 of the Code of Virginia: Va. Code Title 8.01. The Supreme Court of Virginia’s procedural rules address appointment of guardians ad litem in civil matters; those rules guide how and when courts name a GAL and what is required at settlement hearings (see the Virginia Rules of Court at the Supreme Court website: Virginia Rules of Court).

Can a parent serve as the minor’s guardian ad litem?

Short answer: Usually no, and courts typically prefer an independent GAL.

Why: The GAL must be a neutral protector of the child’s legal interests. A parent is ordinarily an interested party — they control day-to-day decisions and often receive or control settlement money for the child. That familial or financial interest creates a conflict of interest that can undermine independent review.

When a parent might be allowed: In narrow situations where no conflict exists and the court is satisfied the parent can and will objectively protect the child’s legal rights, a judge could allow a parent to act as GAL. Those situations are rare. The court will carefully scrutinize any petition that asks the court to appoint a parent as GAL, especially where the parent is proposing the settlement or stands to benefit from it.

Typical practice in Virginia: Courts commonly appoint an independent attorney or experienced nonparent to serve as GAL. The GAL’s work is paid from the settlement if the court approves that payment.

How the appointment and approval process usually works

1. Filing: A party (often the plaintiff’s counsel or the insurance carrier) files a petition asking the court to approve the settlement for the minor and to appoint a GAL if one is needed.
2. Appointment: The court appoints a GAL if the minor has no capable guardian or if the court deems independent protection necessary. The court issues an order naming the GAL and setting duties.
3. Investigation and report: The GAL reviews the claim, meets or attempts to meet with the child and family, evaluates medical needs and long-term impacts, and prepares a report or recommendation to the court.
4. Settlement hearing: The court holds a hearing (or accepts a written report) to decide whether to approve the settlement and any fee requests. The GAL typically appears and presents findings to the judge.
5. Court approval and disbursement: If the court finds the settlement fair and in the child’s best interest, it will approve the settlement and direct how funds will be distributed or protected (for example, into a structured settlement, a blocked account, or a court-ordered trust).

Who pays the GAL and what about fees?

GAL fees are usually paid from the settlement proceeds. The GAL must seek court approval of any fees charged. The court will scrutinize fees for reasonableness before authorizing payment from the child’s recovery.

Practical examples (hypothetical)

Example 1: A 12-year-old receives a $50,000 settlement offer for medical bills and future care. The court appoints an independent attorney as GAL. The GAL reviews the medical evidence, determines the offer undervalues long-term care needs, negotiates a higher lump sum or a structured settlement, then reports to the court for approval.

Example 2: A parent asks to serve as GAL while also proposing a settlement that pays certain household expenses. The court denies the request because the parent’s financial interest in immediate disbursement could conflict with the child’s long-term needs. The court appoints a neutral GAL to protect the child’s interests instead.

What you should do if you want to serve as GAL or if you are involved in a minor’s settlement

• Disclose any potential conflicts to the court immediately.
• File a formal petition asking for appointment, if you are seeking to be appointed, and provide your qualifications and a statement of independence.
• Expect the court to prefer an independent attorney in most cases; be ready to accept a court-appointed attorney GAL.
• If you are the child’s parent, maintain transparent accounting and be prepared for the court to require protections such as blocked accounts or structured settlements.
• Consult a practicing Virginia attorney experienced in minors’ settlements or GAL practice for procedural help. (This article does not replace legal advice.)

Helpful Hints

• Bring documentation: medical records, treatment plans, billing, and any expert opinions to the GAL or the court to support a fair valuation of damages.
• Expect timeline delays: Courts must carefully review minor settlements. Be patient — approval can take weeks or months depending on the court’s schedule and complexity of the case.
• Consider protective structures: Propose a structured settlement or a blocked bank account when long-term care or future needs exist. Judges often prefer these options for minors.
• Avoid appearance of conflict: If you are interested financially in the settlement, do not seek appointment as GAL — disclose your interest instead.
• Ask about fees upfront: If you are appointed or considering serving, ask how fees will be set and whether the court must approve them before payment.
• Confirm court rules: Local procedure can vary by circuit. Check the local circuit court’s practices and the Virginia Rules of Court for specifics on filings and hearings.

Final Notes and Disclaimer

This article explains common Virginia practice about guardians ad litem in minor injury settlements and points to general law resources. It is educational in nature and not legal advice. If you face a specific case or question, consult a licensed Virginia attorney or contact the clerk of the circuit court handling the case for procedural guidance.

Relevant legal resources: Va. Code Title 8.01 (Civil Remedies and Procedure): https://law.lis.virginia.gov/vacode/title8.01/. Virginia Rules of Court (procedural rules on appointment and hearings): https://www.vacourts.gov/courts/scv/rules_of_court/index.html.