Often, Personal Injury Attorneys are retained to file actions to recover damages as a result of injuries incurred by a minor. In order to file a cause of action, an adult must be appointed as either the Conservator or the Next Friend for the minor (see MCR 2.201(E)(1)). A Guardian is not an appropriate fiduciary for the filing of a cause of action on behalf of a minor.
Next Friend: What is a Conservator?
Sometimes, the appointment of a Conservator can be done in one day if both parents consent and the court waives the hearing. If the minor is 14 years or older, the minor may nominate who they wish to serve.
The issue often asked to my office is whether to appoint a Conservator or Next Friend. The appointment of a Next Friend is done by the trial court and is easier to do. Following appointment, there are no additional fiduciary duties of the Next Friend. Appointment of a Conservator is done by the probate court and may require a hearing. Following appointment, the Conservator must file an inventory and yearly accountings. Most personal injury attorneys prefer to appoint a next friend a the onset of a file and then to appoint a Conservator when it becomes clear that a recovery of assets will occur.
Standing to File a Lawsuit
The court rule MCR 2.201 specifies who is a real party in interest in a lawsuit. Subsection E states that an action involving a minor or incompetent person must be prosecuted in the name of the real party in interest, subject to the following provisions:
(a) If a minor or incompetent person has a conservator, actions may be brought and must be defended by the conservator on behalf of the minor or incompetent person.
(b) If a minor or incompetent person does not have a conservator to represent the person as plaintiff, the court shall appoint a competent and responsible person to appear as next friend on his or her behalf, and the next friend is responsible for the costs of the action.
(c) If the minor or incompetent person does not have a conservator to represent the person as defendant, the action may not proceed until the court appoints a guardian ad litem, who is not responsible for the costs of the action unless, by reason of personal misconduct, he or she is specifically charged costs by the court. It is unnecessary to appoint a representative for a minor accused of a civil infraction.
Appointment of a next friend or guardian ad litem shall be made by the court as follows:
(i) if the party is a minor 14 years of age or older, on the minor’s nomination, accompanied by a written consent of the person to be appointed;
(ii) if the party is a minor under 14 years of age or an incompetent person, on the nomination of the party’s next of kin or of another relative or friend the court deems suitable, accompanied by a written consent of the person to be appointed; or
(iii) if a nomination is not made or approved within 21 days after service of process, on motion of the court or of a party.
(b) The court may refuse to appoint a representative it deems unsuitable.
(c) The order appointing a person next friend or guardian ad litem must be promptly filed with the clerk of the court.
Next Friend: Settlements
MCR 2.420 controls the process for a minor’s settlement for both a Conservator and Next Friend. The rule requires the minor to appear in court to allow the judge to observe the injury. It also requires the probate court to pass on the sufficiency of the bond prior to the entry of the final order. If the cause of action reaps a settlement or verdict more than $5,000 in one calendar year, a Conservator must be appointed (see MCL 700.5102 and MCR 2.420(4)(a)).