Understanding how guardian ad litem works is a key component to settling workers’ compensation claims where the applicant lacks the capacity to settle for one reason or another.

Danielle Ashkenazi

Most workers’ compensation cases follow a similar path. An injury occurs, the applicant receives treatment, and once the discovery process is complete, the case is ultimately resolved either through informal negotiations or through trial. Occasionally, a layer of complexity is introduced to the process.

Take the following scenario:

An applicant sustains an industrial injury while working as a warehouse employee when a loaded pallet fell and struck him, causing significant orthopedic injuries to his back and lower extremities. He undergoes medical treatment, including physical therapy and pain management, and the parties begin discussing resolution of the claim.

Unfortunately, before the case is fully resolved, the applicant dies from an unrelated cause. The applicant is survived by his spouse and three minor children. The parties reach an agreement to resolve the claim via compromise and release, with settlement proceeds to be distributed among the surviving dependents.

As settlement discussions move forward, the applicant’s counsel meets with the surviving spouse and explains that because a portion of the proceeds is allocated to the children, the law requires the appointment of a guardian ad litem.

What is a guardian ad litem?

In California workers’ compensation, when any portion of settlement proceeds is allocated to an injured worker or a dependent who is a minor or incompetent, the Workers’ Compensation Appeals Board must appoint a guardian ad litem. This appointment is required before the approval of any settlement agreements, including a compromise and release or a stipulation and award.

The role of the GAL is to ensure that the interests of the minor or incapacitated individual are protected so that any settlement entered into is not only fair but also understood by the parties involved.

In the scenario above, each minor child must appear in the settlement through an appointed GAL, and the WCAB must approve the appointment before the settlement can go forward.

In the hypothetical case, the surviving spouse was appointed as the GAL for the three minor children.

How it plays out in practice

How does one obtain a GAL? First, a formal petition for appointment of a GAL must be filed with the Workers’ Compensation Appeals Board.

The petition will identify the proposed guardian, confirm his or her relationship to the minors and ensure that there is no conflict of interest.

(Editor’s note: If a beneficiary from the settlement is an adult who lacks the capacity to enter into a settlement, the judge may require a medical report stating that the adult beneficiary lacks the capacity to do so. This helps substantiate the need for a GAL.)

Be sure to include a proposed order for the judge to sign. Once the WCAB reviews and approves the petition, it will issue an order appointing the GAL.

The appointed GAL must then sign the compromise and release on behalf of the minor children. The WCAB will then review the settlement and may approve it by issuing an order approving the compromise and release.

Not just about minors

GAL issues are not limited to minor children.

A GAL may be required whenever there is a question regarding a party’s legal capacity. For example, an applicant with a significant cognitive impairment, a severe psychiatric condition or diminished mental capacity due to injury may require appointment of a GAL.

Similar to cases involving minor children, the WCAB wants to ensure that these individuals’ interests are fully protected before proceeding with litigation or a settlement.

Closing thoughts

If minors or incapacitated individuals are involved, make sure to petition for a guardian ad litem before proceeding. Otherwise, you run the risk of having your settlement rejected, which could result in unnecessary expenses and delay of your case.

Danielle Ashkenazi is an associate attorney at Bradford and Barthel’s Los Angeles office. This entry from Bradford & Barthel's blog appears with permission.