I have been asked many times from clients how a minor child can bring a lawsuit in Texas. In particular, most questions are centered around exactly how it is done. The short answer is yes, a child can be named as a plaintiff in a personal injury lawsuit if they have been injured. However, the mechanism by which they are allowed to do so is through a “next of friend”—an adult, usually related to the child, who prosecutes the suit in name on behalf of the child.
Who can be a “next of friend”?
A person who brings a lawsuit on behalf of a minor child is usually related to that child. But, the relationship doesn't always have to be a parent. Grandparents, aunts, uncles, and even adult siblings may also effectively bring a lawsuit on behalf of the child. The public policy for having a relative bring the lawsuit is based upon the assumptions that the relative will have the best interest of the minor child at heart. Bringing a lawsuit in the name of minor child as “next of friend” carries with it certain responsibilities of the adult. They are:
1. Such next friend shall have the same rights concerning such suits as guardians have, but shall give security for costs, or affidavits in lieu thereof, when required.
2. Such next friend or his attorney of record may with the approval of the court compromise suits and agree to judgments, and such judgments, agreements and compromises, when approved by the court, shall be forever binding and conclusive upon the party plaintiff in such suit.
3. The "next of friend" has a duty of good faith to the minor plaintiff and to act in the minor's best interest during the suit at all times.
If a relative can't or won't act as a “next of friend”, in certain circumstances, the child can be represented by a “next of friend” that is a not related to them.
Where does the money go?
If you have brought a suit as "next of friend" for a minor child, you are doing so as an adult "placeholder" for the child. However, any legal compensation, or money award, through a judgment or settlement, is fully the property of the minor child. Therefore, it is rare that a "next of friend" would receive funds of any kind that are meant to compensate the minor child for his or her injuries. The most common resting place for disbursed funds to a minor child is the registry of the court. The registry of the court often times will hold the funds in an a small interest bearing account until the minor child turns 18, at which time, the child is no longer an adult and can take receipt of the money.
A more popular mechanism to use instead of depositing money in a low growth court fund, is to set up an annuity or a higher-interest bearing account through a private financial institution. This process is usually the more beneficial for the child as the money grows at a higher rate, especially with large amounts of money. The annuity and it's payments can be set up so that the minor child gets some money when they turn 18, but not all of it. If the court approves the arrangement, then the structured payments can be made in increments so that the 18 year old doesn't have an enormous amount of money at once, and they can get payments over time, which also draws out the interest earned and ensures at least some minimal level of responsible use of the money.
Having an experienced attorney who understands your family needs is important in determining which route to go in disbursing funds for a minor child. Even a small award can grow in the right financial product.