Good dayI have sued for medical negligen...

Asked by Mary on 02-05-2021 11:07:38
Question posted in the Malpractice Law category relating to Western Cape

Good day

I have sued for medical negligence for my child he has cerebral palsy due to hypoxia during birth. My lawyer has received a settlement offer and I agreed to it. They want me to put the money in a trust for my child and I signed for application for a trust but I do not want to put the money in a trust anymore i made a decision because it sounded good but I thought about it more,and I feel I want to cut out the middle man a manage my child's money myself. Can I change my mind and ask them to pay my child's money to me? And the signed documents for the trust will it be any trouble for me to get the money? There is not a court order that the money must go into a trust. 

Further information relating to Question:

I have sign the document for the money to be transferred into the lawyers account.

Answer to the Question

Posted by Att. Patrick on 02-05-2021 23:31:57

Hi there,

Apologies for the delay, it is outside of normal office hours. 

A lot is going to come down to what has actually happened and how the litigation was conducted. 

I see that you've told your lawyers to accept the settlement agreement, but has it formally been accepted? Has the settlement money been received? If so, has the money been paid over into the trust yet? If it has, then it is too late to reverse your decision.

I assume that the litigation happened in your name, as the parent - since your child is a minor. If that's the case, then you are the plaintiff and you are acting in your representative capacity. Since you are also the child's parents and caregiver, you get to decide what happens to the settlement amount. 

I understand that your lawyers want you to put the money in a trust for your child, and I must honestly say that this is a really good thing to think about. It will ensure that your child's interests are protected moving forwards! It will guard against you (for example) going to the casino and blowing the money in a weekend. 

If you signed an application for a trust, and if the trust has already been setup, but has not yet received the money, it is not too late to stop the process. Just instruct the lawyers NOT to pay the money into the trust, but rather pay it into your own account. 

Q: Can I change my mind and ask them to pay my child's money to me? --> Yes, definitely.

Q: And the signed documents for the trust will it be any trouble for me to get the money? --> No, I assume that you were the plaintiff, and as the child's parent, you are entitled to receive the money and invest it for your child's future and to look after your child in the best way you think fit.

There is not a court order that the money must go into a trust. --> Just be aware, that if a court orders the money be paid into a trust, then you won't have an option. 

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question. 

Att. Patrick 

Information provided by client

Good day

I have sent message to my lawyer regarding my son's settlement money he said the money can't be paid in our personal capacity because the child is minor.

The money must be paid into a trust or guardian fund.

What else can I do? He said the law requires it.

Answer to the Question

Posted by Att. Patrick on 07-05-2021 07:43:40

It is quite normal that money for a minor child be paid into a trust so as to ensure that the capital sum is protected for the minor child's benefit.

See this case:

Do you see the length's that the court went to to ensure that a trust was established, and the terms of the trust, and the limitations that the court placed on the father (who was suing the RAF in his representative capacity on behalf of the child) so that the father couldn't deal with the money directly.

But I don't know if it is correct to say that "the law requires it". What law? Perhaps your lawyer can explain that to you.

I'm sure what is happening is that your lawyer is concerned that you might spend the money yourself, without keeping some for your child's future. That's why he is telling you this. Also, you previously agreed and accepted the trust route, so perhaps your lawyer is now thinking "what's changed?"

In my opinion, there is no law which requires this, however I think that it really is a good idea if the money is invested in a trust so as to ensure capital growth so that your child can benefit from it for years to come.

If you would like to view the entire answer, you will need to either login or register a FREE account.


DISCLAIMER: Advice or answers from Lawyers on SA Legal Advice are not substitutes for the proper advice of an Lawyer. SA Legal Advice is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Lawyer who assists with your question is not your Lawyer, and the response above is not to be considered to be legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains. The responses above are from individual Lawyers, not SA Legal Advice. The site and services are provided “as is”. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service.