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Child Injury Claims – NSW Trustee & Guardian vs Private Trusts

Ordinarily, verdict or settlement monies recovered on behalf of an infant plaintiff in a personal injury claim are paid into Court, and then transferred to the NSW Trustee & Guardian (NSWTG) for management. This is because the law deems any persons under the age of 18 as a person under legal incapacity, and therefore requires protection.

However, with recent budget cuts and the re-structuring of the NSWTG, a claimant’s Tutor and/or Guardian may wish to consider other options.

In the matter of Liang by her Tutor Yuen

[2012] NSWSC 365, the mother of an infant plaintiff was appointed a joint trustee to a private trust established by terms set out by the Court. Some of the factors which the Court took into consideration in coming to this decision include:

  • Reasons why the usual order for payment to the NSW Trustee and Guardian should not be made;
  • The relationship of the proposed trustee to the minor;
  • The financial standing of the proposed trustee’s;
  • The business or financial acumen of the proposed trustee/s; and
  • The proposed investment

The main benefits of this option include greater autonomy to the family, and the trust will not be subject to the administration, supervision or fees of the NSWTG.

The above case comes as a usual reminder that how a child’s compensation is to be managed should be looked on a case by case basis. The best management option for one child and their family might not be the best option for everyone. How a fund is to be managed is therefore an issue that is best discussed by the child’s Tutor with their lawyers at the time of settlement discussions.

If verdict or settlement monies have been recovered on behalf of your child and you wish to consider whether it is possible to set up a private trust on their behalf, please do not hesitate Stacks Goudkamp on 1800 25 1800 or make an online enquiry to speak to one of our friendly solicitors for advice.

Written by Joy Guibani.

Joy Guibani is an Associate & Solicitor in Tom Goudkamp’s Practice Group.  Joy assists Tom and Ruth with a variety of personal injury cases but predominantly motor vehicle claims.  Joy has a special interest and expertise in the interplay between Administrative Law and Personal Injury Law, which is far reaching in motor vehicle claims including LTCS eligibility decisions, MAS determinations, and CARS assessments. 

2018-01-08T14:43:08+00:00 September 14th, 2016|