Liability for personal injury rests with the person who has caused injury and/or financial loss through an act or omission giving rise to liability. Similarly, such liability may be incurred by the person who has contractually undertaken to assume liability – typically an insurance company. Special rules apply when the person who caused the damage is under guardianship.
The question of whether to pursue a claim for compensation against the party responsible for the damage, negotiate and enter into a settlement, or possibly bring the compensation case before the courts, is decided by the injured party themselves, provided that the injured party is not under guardianship.
For persons who do not have legal capacity, the situation is different. Where the injured party is under guardianship, it is the guardian who makes decisions on behalf of the injured party.
Under guardianship
Which persons are considered to be under guardianship is regulated in Section 2 of the Guardianship Act.
According to the aforementioned Section 2, first paragraph a), persons under the age of 18 are considered to be under guardianship.
Pursuant to the aforementioned Section 2, first paragraph b), persons for whom guardianship has been established, cf. Chapter 4 of the Act, shall also be considered under guardianship.
Legal capacity for persons under guardianship
Section 9 of the Act states that a minor cannot perform legal acts or dispose of his or her funds unless otherwise specified.
This applies similarly to decisions relating to compensation settlements following personal injury. The person who, according to the legal system, is to act on behalf of the minor is the guardian.
The guardian must decide whether to bring a claim against the party responsible for the damage, whether the matter should be settled by agreement between the parties, or whether legal proceedings should be brought before the courts.
Chapter 4 of the Guardianship Act stipulates that the decision to appoint a guardian for a person over the age of 18 must be described in detail, either through the consent of the person concerned, cf. Section 20 of the Guardianship Act, or where the decision stipulates loss of legal capacity pursuant to Section 22 of the Act.
For the purposes of tort law, it will be practical for the guardianship to cover financial matters. When appointing a guardian, the guardian's area of responsibility shall be described in a mandate, cf. Section 25 of the Act.
The guardian
As a clear rule, the guardian of a minor is the person who has parental responsibility for the minor and who is of legal age, cf. Section 16 of the Act.
In many cases, this will mean that the minor has two guardians who must cooperate on the guardianship. See section 18 of the Guardianship Act, which regulates situations where there are several guardians at the same time.
Section 16 of the Act further stipulates that if the minor does not have a guardian, the State Administrator shall appoint one.
Upon request from the minor or from one of the guardians, the State Administrator may remove the other guardian from office, cf. Section 19 of the Act. The assessment will then be based on the best interests of the child.
When appointing a guardian – either as a result of a decision on guardianship pursuant to Section 20 of the Act or a decision on loss of legal capacity pursuant to Section 22 of the Act – a decision on this is made either by the State Administrator or by the courts where a guardian has not already been appointed by the State Administrator.
June 28, 2022