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Obtaining Probate Court Approval of a Settlement with a Pro Se Minor or Disabled Person

Author: Bradley Damm

Guest Editor: Jillian Stanley

August 7, 2019 10:00am

On August 31, 2018, the Colorado State Judicial Branch released the revised Colorado Rules of Probate Procedure.  The procedure for seeking Court approval of a personal injury settlement with a minor or disabled person is now governed by C.R.P.P. 62.  Although Rule 62 provides very detailed instruction on how to obtain Court approval of a settlement with a minor or disabled person, defense counsel must still walk a fine ethical line when the plaintiff is pro se.  Based on a recent forum among defense attorneys in Colorado, there is significant confusion regarding the appropriate procedure for obtaining Court approval of a settlement with a pro se minor.  This article provides one example of how to achieve this goal.

The Law Does Not Explicitly Allow Defendants To Petition For Court Approval Of A Personal Injury Settlement

The Probate Court has authority to ratify any legal settlement and distribution of funds to a minor.[1]  However, Rule 62(c) limits the individuals who may petition for approval of a proposed settlement.  Those individuals include a fiduciary for a respondent, an interested person, a next friend, or guardian ad litem.[2]  An “interested person” is defined to include “heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a … protected person.”[3]  As you can see, a defendant or a defendant’s insurance company who owes money to the minor pursuant to a settlement agreement is not included in the list of individuals who can petition the Probate Court for approval of the settlement.  Further, it is widely accepted that it is unethical for an attorney retained by an insurance company to file a petition on behalf of the minor.[4]  So when a minor or disabled plaintiff is unable or unwilling to seek approval of a settlement from the Probate Court, what should the defendant or insurance company’s attorney do?

Alternative Method For A Defendant or Insurance Carrier To Obtain Court Approval Of A Personal Injury Settlement With A Minor

In a 2005/2006 ethics opinion, the CBA ethics committee stated it is ethically permissible for an attorney hired by an insurance company to petition the Probate Court for approval of settlement with a minor if the following are met: (1) attorney only represents the insurance company; (2) attorney clearly discloses to the minor and respondent that the attorney only represents the interests of the insurance company; (3) the attorney recommends the minor and respondent retain their own counsel; (4) the attorney does not advise the minor or respondent regarding the reasonableness or fairness of the settlement; and (5) the attorney clearly notifies the Court that the attorney only represents the insurance company.[5]

We recently had a pro se plaintiff who was a minor.  Her mother handled the claim against our client’s insurance company and reached a settlement before a lawsuit was filed.  Our client then asked us to obtain Probate Court approval of the settlement.  Based on the CBA Ethics Committee Opinion, we stated clearly in bold in the introductory paragraph of the Petition to Settle Personal Injury Claim that the petitioner was the insured and payment was being made by its insurance company, that the attorneys filing the Petition only represented the insured, and we cited the CBA Ethics Committee opinion as authority for our Petition.  We included the same information at the beginning of every pleading we filed with the Probate Court.  The Probate Court accepted our Petition and allowed us to rely on the CBA Ethics Opinion to petition for approval of a personal injury settlement with the pro se minor.

Takeaway

The applicable statutes and new Probate Rule 62 do not provide instruction for defense counsel to obtain Probate Court approval of a settlement with a pro se minor or disabled person.  However, we successfully relied on the CBA Ethics Opinion as stated herein to obtain Probate Court approval of a settlement.  Based on our review of the defense counsel forum, other attorneys have filed petitions under similar circumstances by stating that the insurance company is an “interested party” under C.R.S. § 15-10-201(27).  We chose not to pursue this option, because the insurance company is not included within the definition of “interested party.”  Moving forward, defense counsel should be able to rely on the 2005/2006 CBA Ethics Committee Letter Abstract to accomplish Probate Court approval of a personal injury settlement with a pro se minor or disabled person.

 

[1] C.R.S. § 15-14-412(1)(b).

[2] C.C.R.P. 62(c).

[3] C.R.S. § 15-10-201(27).

[4] The Colo. Lawyer, vol. 35, no. 8, p. 97; CBA, 2005/2006 Letter Abstracts.

[5] CBA, 2005/2006 Letter Abstracts.

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