Under Missouri law there is no rush to file personal injury claims for a minor. The law defines a minor as anyone under the age of 18. Under RSMO 516.105, the statute of limitations for a minor to bring a bodily injury claim is extended until the minor reaches the age of 21. The court therefore must use its discretion in trusting that the individual chosen to represent the minor will not abscond with the funds before the minor is old enough to realize.
If a minor is involved in an accident their settlement will have to be judicially approved. This is true even if a settlement is reached out of court without a lawsuit being filed. The law requires this to protect the long-term financial interests of the minor. The process is meant to oversee the individual or entity that wishes to control the minor’s money while they are still under 18. Since a minor cannot represent themselves, the court will approve a “next friend” to act in the minor’s best interests during the hearing. The next friend is typically the minor’s parent or guardian, although the Court could appoint a Guardian Ad Litem to represent the child’s interests if necessary.
For the case to be finalized, a Motion for Approval and an Order that contains the following information must be filed in Circuit Court:
- The age and date of birth of the minor;
- Describe the accident and how the minor was involved;
- Describe the minor’s injuries;
- Identify the “next friend” of the minor involved in the case;
- That the Plaintiff participated in making a claim and litigating the case;
- That a negotiated settlement was reached;
- That they believe that Court Approval the settlement reached would be in the best interest of the minor;
- That the next friend will serve as trustee of the account to which the settlement funds shall be deposited;
- That the next friend shall only use these funds in the best interest of the child;
- That a court order approves payment of any medical expenses and that the court approve payment of any attorney’s fees pursuant to contingency fee contract;
Funds from a minor’s settlement, by Missouri law, must be put into a restricted account, a conservatorship, or a structured settlement. No matter what method is chosen, the money must be used for the benefit, education, health, and welfare of the minor.
Who controls the money depends on the method used. It is best to know what method is desired prior to the settlement hearing. This will allow the insurance company time to come to the hearing with the check in hand and the attorney time to help the next friend file any legal documents and set up any accounts.
If a structured settlement is chosen, the insurance company will issue the check to the investment company offering the structured settlement. The investment company will hold on to the money and make payments to the minor over time when they reach a certain age or ages. Judges like structured settlements as they know the money will be safe from abuses in discretionary spending.
Conservatorships require a filing with the probate court. Plaintiff’s attorneys usually refer to outside counsel the creation of a conservatorship but can file this themselves. Once the minor’s settlement is approved, the check will be issued to the restricted bank account that was set up in the minor’s name. I personally recommend using Great Southern Bank for restricted accounts, but you may have to call around to see what banks offer these accounts.
The court usually appoints the next friend as the trustee of a restricted account. The trustee may only withdraw funds from the trust if the funds are going to be used “in the best interests of the child.” The trustee must obtain the court’s approval for all disbursements. The trustee can do this without the lawyer's involvement at any time by calling the judge's clerk to schedule a time to talk to the judge. The trustee will also be required to give an annual accounting to the court of all expenses and current balances for both restricted accounts and conservatorships. This gives the judge in the division in which the settlement is approved wide discretion on what requests to allow and what to deny.
What expenses are in a child’s best interests? Is it reasonable to take money out to buy new clothes? Probably. Is it reasonable to use funds to upgrade to a nicer house or apartment so that the child will have more space to play? Probably not. The decision on what is reasonable is ultimately up to the judge.
