Special rules apply when litigating a personal injury case on behalf of a minor or incapacitated person.
Legally, a minor or incapacitated person is not capable of making significant life decisions, therefore, when they receive a settlement or judgment, the plaintiff’s attorney must initiate a conservatorship action. Hawaii Rules of Probate Court R. 101.
The law protects minors and incapacitated people from unfair and unfavorable outcomes through conservatorships. The court steps in to provide guidance and to protect minors and incapacitated individuals so that they may receive a just recovery.
Once the plaintiff’s attorney initiates a conservatorship action, the probate judge has to appoint a conservator for the minor or incapacitated person and determine whether the settlement or judgment is reasonable in the circumstances.
Some attorneys attempt to bypass the appointment of a conservator or forget to do so. They tend to have the trial judge assume jurisdiction over the conservatorship case. Although trial judges are frequently familiar with conservatorship rules, having the trial judge assume jurisdiction may not necessarily meet the probate court rules. A probate judge often has to fix the case later. As a result, the proceedings are usually more efficient when a probate judge handles matters of a settlement or judgment.
Even attorneys handling arbitration cases where an award or settlement is obtained must have the settlement or award approved by a judge in probate. In arbitration cases, a judge’s confirmation of an award converts the award into an enforceable judgment which the minor or incapacitated person can collect. The attorney who receives a favorable outcome in arbitration can also make a motion to the court for an order confirming the award.
Anyone subjected to a personal injury should contact a qualified attorney immediately. An attorney with personal injury experience will know the rules of law and execute an efficient, lawful case, ensuring the most positive outcome for the plaintiff and just recovery.