Fla. Prob. R. 5.636

As amended through March 26, 2024

Rule 5.636 - SETTLEMENT OF MINORS' CLAIMS

(a) Time of Settlement. Claims on behalf of minors may be settled either before or after an action is filed.

(b) Petition. The petition for approval of a settlement shall contain:

(1) the initials, residence address, and the year of birth of the minor;

(2) the name and address of any guardian appointed for the minor;

(3) the name and residence address of the natural guardians or other persons having legal custody of the minor;

(4) a statement disclosing the interests of any natural or court-appointed guardian whose interest may be in conflict with that of the minor;

(5) a description of the cause of action in which the minor's interest arises;

(6) a summary of the terms of the proposed settlement; and

(7) copies of all agreements, releases, or other documents to be executed on behalf of the minor.

(c) Notice. Notice of the petition shall be given to the court-appointed guardians for the minor, to the natural guardians or other persons with legal custody of the minor, to the minor if age 14 or older, and to the minor's next of kin if required by the court.

(d) Guardian Ad Litem. The court shall appoint a guardian ad litem on behalf of a minor, without bond or notice, with respect to any proposed settlement that equals or exceeds $50,000 and affects the interests of the minor, if:

(1) there is no court-appointed guardian of the minor;

(2) the court-appointed guardian may have an interest adverse to the minor; or

(3) the court determines that representation of the minor's interest is otherwise inadequate.

(e) Valuation of Proposed Settlement. A proposed settlement is deemed to equal or exceed $50,000 if the gross amount payable equals or exceeds $50,000, without reduction to reflect present value or fees and costs.

(f) Report. A guardian ad litem appointed with respect to a proposed settlement affecting the interests of a minor shall, not later than 5 days prior to the hearing on a petition for order authorizing settlement, file and serve a report indicating the guardian ad litem's determination regarding whether the proposed settlement will be in the best interest of the minor. The report shall include:

(1) a statement of the facts of the minor's claim and the terms of the proposed settlement, including any benefits to any persons or parties with related claims;

(2) a list of the persons interviewed and documents reviewed by the guardian ad litem in evaluating the minor's claim and proposed settlement; and

(3) the guardian ad litem's analysis of whether the proposed settlement will be in the best interest of the minor.

A copy of the report shall be served on those persons on whom service is required in subdivision (c) of this rule.

FL. Prob. R. 5.636

Amended by 2021 WL 5050374, effective 10/28/2021; amended by 287 So.3d 492, effective 1/1/2020; amended by 139 So.3d 875, effective 4/22/2014; amended by 948 So.2d 735, effective 2/1/2007; added by 607 So.2d 1306, effective 1/1/1993.

Committee Notes

When a civil action is pending, the petition for approval of settlement should be filed in that civil action. In all other circumstances, the petition for approval of settlement should be filed in the same court and assigned to a judge who would preside over a petition for appointment of guardian of a minor.

The total settlement to be considered under subdivisions (d) and (e) is not limited to the amounts received only by the minor, but includes all settlement payments or proceeds received by all parties to the claim or action. For example, the proposed settlement may have a gross value of $60,000, with $30,000 payable to the minor and $30,000 payable to another party. In that instance the total proposed settlement exceeds $50,000. Further, the "gross amount payable" under subdivision (e) is the total sum payable, without reducing the settlement amount by fees and costs that might be paid from the proceeds of the settlement. For example, if the proposed settlement is $60,000 but $20,000 of that sum will be paid to the attorneys representing the minor's interest in the action, the "gross amount payable" still exceeds $50,000. Likewise, the "gross amount payable" cannot be reduced to reflect the present value of the proposed settlement on behalf of the minor.

Rule History

1992 Revision: New rule.

2003 Revision: Committee notes revised.

2006 Revision: Amended to reflect 2006 passage of new section 744.3025, Claims of Minors, increasing dollar figure from $25,000 to $50,000 as threshold amount requiring appointment of guardian ad litem if interests of minor are not otherwise adequately represented. Committee notes revised.

2014 Revision: Amends subdivision (b)(1) to conform to Fla. R. Gen. Prac. & Jud. Admin. 2.425. Committee notes revised.

2019 Revision: Amends subdivisions (d) and (e) to eliminate inconsistency with section 744.3025, Florida Statutes. Committee notes revised.

Statutory References

§ 744.3025, Fla. Stat. Claims of minors.

§ 744.387, Fla. Stat. Settlement of claims.

§ 744.391, Fla. Stat. Actions by and against guardian or ward.

§ 744.441, Fla. Stat. Powers of guardian upon court approval.

§ 744.446, Fla. Stat. Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty.

§ 744.447, Fla. Stat. Petition for authorization to act.

§ 768.23, Fla. Stat. Protection of minors and incompetents.

§ 768.25, Fla. Stat. Court approval of settlements.

Rule References

Fla. Prob. R. 5.040 Notice.

Fla. Prob. R. 5.042 Time.

Fla. Prob. R. 5.120 Administrator ad litem and guardian ad litem.

Fla. Prob. R. 5.610 Execution by guardian.

Fla. Prob. R. 5.630 Petition for approval of acts.

Fla. R. Gen. Prac. & Jud. Admin. 2.425 Minimization of the Filing of Sensitive Information.