Age of Majority, Guardianship, and Limitations in Birth Injury Claims: Pennsylvania, New Jersey, and Delaware

When a child with a permanent neurological injury approaches eighteen, three legal questions converge. Who will have authority to make decisions once the child is legally an adult? Who controls any funds held for the child’s benefit? And is a claim arising from the child’s birth still timely? The answers differ across Pennsylvania, New Jersey, and Delaware, and the limitations answer in particular is frequently misunderstood.

This discussion describes the framework. It is not a determination of any individual deadline, which depends on the date of injury, the date of discovery, the defendants involved, and facts that require case-specific review.

Limitations: the minors’ rules are not uniform

Pennsylvania. Minority generally tolls the limitations period until the child reaches eighteen, after which the two-year medical negligence period runs; in most birth injury matters, the claim must therefore be filed by the child’s twentieth birthday. The MCARE Act’s seven-year statute of repose, 40 P.S. § 1303.513(a), was held unconstitutional by the Pennsylvania Supreme Court in Yanakos v. UPMC (Pa. 2019). The parents’ own claims, such as claims for the child’s medical expenses during minority, may be governed by different periods.

New Jersey. New Jersey departs sharply from the eighteen-plus-two pattern for birth injuries. Under N.J.S.A. 2A:14-2, as amended in 2004, an action by or on behalf of a minor for medical malpractice injuries sustained at birth must be commenced before the minor’s thirteenth birthday. The statute also provides a mechanism for the minor, or a designated adult, to petition for a guardian ad litem if the parent or guardian has not commenced the action before the child’s twelfth birthday. A family that assumes the claim can wait until the child turns eighteen may lose it.

Delaware. Under 18 Del. C. § 6856, the general limitations period for medical negligence is two years from the date of injury, extended to three years in limited circumstances where the injury could not reasonably have been discovered. A minor under six at the time of injury has until the later of that period or the child’s sixth birthday. Delaware courts have applied this tolling to the minor’s claim and not to the parents’ separate claims.

Federally supported health centers. Where any provider involved was a deemed federal employee at a federally qualified health center, the claim falls under the Federal Tort Claims Act. An administrative claim must be presented to the appropriate federal agency within two years of accrual under 28 U.S.C. § 2401(b), and the FTCA contains no general tolling for minority comparable to state law. This is among the most consequential traps in pediatric medical negligence and must be investigated at the outset of any review.

The firm has addressed cerebral palsy limitations periods separately. In every jurisdiction, the practical lesson is the same: the timing analysis belongs at the beginning of the review, not after the child’s condition is fully understood.

Decision-making authority at eighteen

At eighteen, parents lose their legal authority to make medical, educational, and financial decisions for their child, regardless of the child’s condition. Where the young adult cannot make some or all of those decisions, an alternative arrangement must be in place.

Pennsylvania. Guardianship of an incapacitated person is governed by 20 Pa.C.S. Chapter 55. Under Act 61 of 2023, effective in June 2024, counsel must be appointed for the alleged incapacitated person if counsel has not been retained, the petition must address less restrictive alternatives, and the court may not appoint a guardian where a less restrictive alternative is sufficient. Limited guardianship is preferred where the person is partially incapacitated (20 Pa.C.S. § 5512.1).

New Jersey. Guardianship is governed by N.J.S.A. 3B:12-24.1 and Court Rule 4:86, which permit general or limited guardianship. Legislation addressing the filing of guardianship complaints before a minor reaches eighteen has been considered; the current procedure should be confirmed when planning begins.

Delaware. In addition to guardianship, Delaware’s Supported Decision-Making Act, 16 Del. C. Chapter 94A, permits an adult to enter a supported decision-making agreement with one or more supporters, and provides that executing such an agreement is not evidence of incapacity.

Less restrictive alternatives, including powers of attorney, health care representatives, and supported decision-making where available, should be considered before guardianship and require that the young adult have the capacity to execute them.

Funds held for the child

Settlements and judgments on behalf of minors require court approval in each jurisdiction, and the court controls how the minor’s share is held. In Pennsylvania, approval and distribution are governed by Pa.R.C.P. 2039 for minors and Pa.R.C.P. 2064 for incapacitated persons; funds placed in restricted accounts cannot be withdrawn until majority except by court order. In New Jersey, approval occurs at a hearing under Court Rule 4:44.

When a restricted account or other arrangement matures at eighteen, funds may pass outright to a young adult who cannot manage them, and the transfer may affect eligibility for means-tested benefits. Planning for that transition, through guardianship of the estate, a court-approved trust, or a special needs trust, should begin well before the child’s eighteenth birthday. The firm addresses the trust options in special needs trusts and benefits after a catastrophic recovery.

Scope

The firm’s birth injury practice evaluates claims involving permanent injury and supportable negligent causation, and the limitations review is the first step in that evaluation. Guardianship, decision-making, and benefits planning involve counsel in elder law and special needs planning, with whom coordination is required where a recovery is anticipated.