I recently came upon a case where a mother was insistent that she was going to settle a case on behalf of her son and was entitled to the settlement money. The child had been injured in an accident and the mother had dollar signs in her eyes. While she was hoping for a big payday,unfortunately for her (and fortunately for her son) Illinois courts go to great lengths to protect minors and their rights.
“Under Illinois law, a minor is a ward of the court when he is involved in litigation, and the court has a duty and broad discretion to protect the minor’s interests.” Wreglesworth v. Arctco, Inc., 316 Ill.App.3d 1023, 1026, 250 Ill.Dec. 495, 738 N.E.2d 964, 968 (2000). The court’s duty is reflected in section 19–8 of the Probate Act, requiring the court to approve or reject a claim of the ward. 755 ILCS 5/19–8 (West 2002) (“By leave of court , a representative may compound or compromise any claim or any interest of the ward in any personal estate upon such terms as the court directs”); see also Ott v. Little Co. of Mary Hospital, 273 Ill.App.3d 563, 571, 210 Ill.Dec. 75, 652 N.E.2d 1051, 1057 (1995) (“guardian of a minor’s estate cannot effectuate settlement without court approval of that settlement”).
Further, “a parent has no legal right, by virtue of the parental relationship, to settle a minor’s cause of action, and court review and approval of a settlement reached by a parent also is mandatory.” Ott, 273 Ill.App.3d at 571, 210 Ill.Dec. 75, 652 N.E.2d at 1057; see also Wreglesworth, 316 Ill.App.3d at 1027, 250 Ill.Dec. 495, 738 N.E.2d at 968; Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 146, 199 Ill.Dec. 572, 634 N.E.2d 411, 414 (1994); Burton v. Estrada, 149 Ill.App.3d 965, 976, 103 Ill.Dec. 233, 501 N.E.2d 254, 262 (1986) (court approval is mandatory “because it is intended to substitute a judicial determination for the guardian’s personal discretion in order to provide additional protection to the ward”); Mastroianni v. Curtis, 78 Ill.App.3d 97, 101, 33 Ill.Dec. 723, 397 N.E.2d 56, 59 (1979). So just because you are the parent of the minor child, you do not get to supersede the child’s rights and settle on his or her behalf.
Any settlement of a minor’s claim is unenforceable unless and until there has been approval by the probate court. Wreglesworth, 316 Ill.App.3d at 1028, 250 Ill.Dec. 495, 738 N.E.2d at 969. Smith v. Smith, 358 Ill. App. 3d 790, 792-93, 832 N.E.2d 960, 962-63 (2005). If a parent does attempt to settle the case, they aren’t going to be walking away with the cash until the probate court has had a say. Odds are the probate court will not take kindly to a parent stepping on their child’s rights.
It is well established that the rights of minors are to be carefully guarded. See Villalobos v. Cicero School District 99, 362 Ill.App.3d 704, 712, 298 Ill.Dec. 944, 841 N.E.2d 87 (2005). As long as the court is interested in protecting the rights of children, parents must step aside and let the minor child and/or the probate court decide the best course of action. Sorry parents, your child’s injury is not cause to end up with dollar signs in your eyes.