“Legal Disability” – What Do a Soldier, a 17 Year Old, an Inmate, and a Hospitalized Mental Patient Have in Common

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The idea for this article came from my trusty paralegal, Letetia. She suggested I touch on some ramifications of an infant’s personal injury settlement.

That did not seem to have a very broad appeal, and then I realized the concept of “legal incompetency”, or “being under a legal disability”,  has a huge bearing on all aspects of our legal system. Voila! An idea was born.

A few synonyms for “competent” are capable, proficient, adroit, accomplished, complete, skillful, gifted, and talented. I like to apply these terms to myself and my staff!

So, what goes with my question above? I have known some very competent teenagers, soldiers, hospital patients, and even prisoners. The “trick” is that “competent” is a term of art when it refers to “legal competence”, or “being under a legal disability”.

And there are different kinds of “legal competence”. For example, there is a “presumption” that a 14 year old is “competent” to testify in court under oath and a presumption that a child under 7 is not. Yet both are under legal disabilities be virtue of being “an infant”, that’s is less than 18 years old..

What I refer to here when I say “incompetent” is a person under a “legal disability”.

Here are some examples:

  1. The Federal “Service Members’ Civil Relief Act” provides protections to an active duty military member who may be unable to protect her/his legal rights. It would hardly be fair for a person to have a large money judgment rendered against them, or to lose custody, while defending his country in Iraq or Afghanistan, or guarding the border in Korea.
  2. An incarcerated person is unable to protects her/his legal rights. They can’t even vote.
  3. A person who is elderly, in a coma, a stroke victim, or mentally ill, may be incompetent to make medical or financial decisions.
  4. An “infant” is defined as incompetent because they cannot enter into certain contracts, sign personal injury releases, file civil suits, or conduct certain kinds of business transactions.

So, how does the law deal with such “incompetency”?

  1. If a person is under a “legal disability” for one of the reasons listed above, for example a divorce, the court will often appoint the person a guardian ad litem. A Guardian under law acts in some ways as the person’s lawyer. There are funds available through the WV Supreme Court of Appeals Administrator pay for such services.
  2. If an “infant” has parents who have custody, the parent(s) may file as “next friend” and guardian, for example, in a personal injury law suit.
  3. Where a person has not executed a “medical power of attorney” but becomes unable to make medical decisions, the State of WV has a “medical surrogacy” law to assist the medical provider to determine who can make medical decisions.
  4. Where a person has become “elderly and infirm” or otherwise is going to be impaired for the foreseeable future, WV has a “Guardian and Conservator Statute”. The person applying for this position must comply with the statute, take an online course and pass, notice all close relatives, get a statement from the patient’s doctor, and file a “verified (notarized) petition.” If appointed, they must also file periodic reports and perhaps post a bond.

5 As a “fiduciary”, the person acting as guardian and conservator must adhere to very high standards and place their ward’s interests above their own. There are borderline cases where a person has not been declared incompetent, but someone has been helping them with their finances. If that “fiduciary”, perhaps by using a power of attorney or joint account,  benefits monetarily, they may have to overcome the “presumption of fraud” if suit is later filed to get the money back.

  1. Search my blog (www.hunterlawfirm.net) for related topics such as “general power of attorney”, “medical power of attorney”, or “special power of attorney”.
  2. Even where a suit has not been filed, a parent who wants to settle his/her child’s personal injury suit must file a petition for an “infant’s summary proceeding” and convince the court that taking the settlement and releasing the tortfeasor (also called “defendant” if part of a lawsuit) from all further liability. It is the same principal if the injured party is mentally incompetent, for example, for example by a brain injury.
  3. Without the order approving settlement, the insurance company is not going to write that check! These cases also required appointment of a guardian ad litem, usually paid for by the insurance company. It is the guardian’s job to make sure the settlement is fair for the injury and extent of liability. The guardian’s responsibility is to the infant or impaired person.
  4. The question that Letetia wanted me to answer is, “What if the infant wants some of the money now?” Answer? Usually the money is for the child to receive at adulthood. It may not be used by the parent in lieu of supporting the child. That’s already the parents’ responsibility.
  5. The court has to approve the purchase of a car for the child to get to work or a computer for school use, or for the first year of college. My experience is the courts are not well disposed to such requests. It is a case by case issue.
  6. Where the injuries are severe and the settlement large, the parent often considers accepting a “structured settlement”, especially if the doubt their child, at 18, can handle that much money.
  7. Such a settlement may include an initial lump sum, less attorney fees based on the “present value” of the settlement, and periodic, monthly, quarterly, or annual payments. Sometimes the payments are timed to correspond to h.s. graduation, anticipated time the person may want to marry or build a house, etc.
  8. Sometimes a parent will take and get approved a “structure” so the child will not have the money to “blow” upon turning 18. And believe me they do sometimes “blow it”.
  9. Unfortunately, there are plenty of companies who will buy a structured settlement from that 18 year old for a flat fee and pay all tax and other liabilities. They charge a heavy premium for that service.
  10. You may also search for “means tested benefits”, where a person gets a settlement but is receiving government benefits that are tied to their meeting certain “poverty guidelines”. That is a separate subject, but the recipient is under a form of “disability” because if they just take the money, they may be knocked off their SSI, Medicaid, food stamps, or other benefits, until all settlement proceeds are “spent down”.
  11. In such an event, a proceeding similar in complexity to a guardianship/conservatorship petition, or infant summary proceeding, must be conducted seeking approval of a “special needs trust”. If approved, a court appointed trustee can pay for certain needs of the beneficiary such as therapy, assisted living, treatment at a wellness clinic, or a new roof.

Of course, there are borderline cases, such as where a person had dementia, with resultant short term memory problems, but who appears able to understand what they owe and own, where and who they are, and what they want. Thus some of these cases can be contested, expecially when those affected begin to “smell the money” of the supposedly impaired person.

In the “special needs trust” petitions I have filed, I have had the WV AttorneyGeneral and the WV Dept of Health and Human Resources resist the petition because of the “WV Rules”. These can include the beneficiary’s being over 59 or being otherwise disqualified.

In Summary, a person who is disqualified, by law or fact, must be treated carefully by our legal system if justice is to be served.

This is not the kind of thing a person can handle without competent legal counsel.


This post was written by Burton Hunter


  • I am not proud to say but it’s reality that I was incarcerated from December 3,2017 until September 22,2010 for forgery and uttering. During the incarceration I was put on several medications and one was nerve meds. I’ve suffered major emotional issues throughout that incarceration and does cause issues emotionally as far as being in society. I do have epilepsy and in the past filed for disability but was denied. I was looking into possibly getting disability. At this time I’m under doctor care for thyroid disorder and possible ovarian cancer also. Thank you Katina bleigh

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