Parents are Natural Guardians of Birth Injury Settlement Awards

Posted by Geoff Aylward | Apr 01, 2021 | 0 Comments


As a parent, you are the best person to decide on the care and upbring of your child whether the child is healthy or suffers a severe brain injury from birth.  You have the best interests of your child at heart and the best knowledge of how to meet those needs.  The law recognizes parents are the preferred guardians of the property of a child under sections 56 and 57 of the Children's Law Act.

A Parent's Care of a Disabled Child

A parent meets and will continue to meet educators to develop and implement Intensive Special Support Programs.  Parents attend countless appointments with the many different physicians, therapy treatments, and the like You communicate most effectively on your child's behalf with the many professionals in his life. 

It falls on your shoulders to perform the activities of daily living for your child: diapering, toileting, clothing, feeding, stretching, and bathing. Parents know the value of recommendations of therapists for particular assistive devices, adaptive wheelchairs, special tricycles, supportive walkers, vans fitted with ramps, and appropriate lifts for transfers.

A quadriplegic child cannot assist with transfers.  As the child gains weight, parents grow older and are not as strong as they once were.  Safe care requires adaptive changes to the home:  overhead lifts, an elevator, or even a new one-level home. 

While your child is in school, you may be able to work outside of the home without incurring substantial homecare costs.  Once the child is beyond the maximum school age of 22 years old, as the parent, your child will need 24-hour home care and supervision

A successful lawsuit against a doctor who negligently delivers a child often results in a substantial settlementment.   Some recent awards in Atlantic Canada have exceeded $5,000,000.  Two awards have exceeded $6,500,000.

A parent or the Office of the Public Trustee as Guardian

If the Supreme Court of Newfoundland and Labrador does not appoint you as the guardian of the settlement of your child, the Court will appoint the Public Trustee as the guardian.

You will lose flexibility in making the best decisions recommended by doctors or therapists.  The recommendations will have to be justified in writing.  You may have to obtain three quotes, even though there are no identical devices that match the recommendations. 

You should be able to act on the recommendations rather than to persuade the doctor to explain the recommendation.  You are generally in the best position to decide how to meet the needs of your child for supplies, services, and supportive equipment.

The primary role of the Public Trustee Office is the safeguarding and investment of money on behalf of persons under the age of 19, persons who are mentally incompetent, and estates of deceased persons.

During your child's lawsuit, a lifecare planner has outlined the future care needs of your child.  These needs include someone who acts as a case manager and coordinates all of the needs of your child.  Estates officers at the Public Trustee office are not trained or experienced as case managers.  The Public Trustee Office is understaffed.

Put simply, you are in the best position to understand, coordinate and meet your child's needs, including necessary expenditures.

Caregiving and supervision

Your child will need much more care and supervision once he or she leaves school. 

Your most important decision will be the choice of the caregiver(s) who will help look after your child in your own home.

You may wish to personally hire, supervise, pay, and set the terms of employment including discontinuance of employment of the caregiver(s) who help with the care of your child within your own home.  You will be in the best position to evaluate the qualifications and commitment of your child's caregiver.

The relationship with the caregiver often has the best chance at success as a two-way relationship between your family and the caregiver.  Not a three-way relationship that includes the office of the Public Trustee.  between the parents, the child, and the caregiver.

Structured Settlements affect Appointment as Guardian

A structured settlement provides many advantages.  One of the greatest is that the Supreme Court of Newfoundland and Labrador is much more likely to appoint you as the guardian of the property of your child.  For this reason, it is beneficial to structure as much of the settlement as possible.  The savings and safeguards of a structured settlement are described in the blog Birth Injury Awards and Structured Settlements.

For more information, contact Geoff Aylward at [email protected]

About the Author

Geoff Aylward

LEGAL BACKGROUND AylwardLaw's core practice areas are Personal Injury, Disability Insurance, and Medical Malpractice. 


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