When States Don’t Enforce Parental Waivers

Parental waiver

Why use them?

I read an interesting article that outlines why minor waiver/release agreements should be used even if a particular state’s court system has ruled against their enforceability. The article also includes innovative provisions that should be inserted into the language of the waivers/releases.

A minor is not considered to be a legally competent party to enter into a binding contract such as a waiver/release agreement. Therefore, their enforceability is dependent upon the minor’s parent(s) waiving rights on their behalf.

Below are reasons why minor waiver/release agreements should be used even if a court in a particular state has ruled that the parental waiver is not enforceable:

  • The case law of the state may change.
  • The waiver/release may have a psychological impact to deter litigation.
  • The organization requiring the waiver/release will be no worse off, even if it is not enforceable.
  • The risk warning provision in the waiver/release may provide evidence for an assumption or risk defense.

Special wording that may make the waiver/release stronger:

  • A provision that the governing substantive law will be based on a state where parental waivers are upheld.
  • A parental indemnification agreement where the parents agree to indemnify the sports organization for legal defense and damages that are paid on behalf of the injured minor.

Find out if a waiver/release is worth the paper it’s written on.

Source: Risk & Insurance, Victor Vepauskas, November 2010
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