PERSONAL INJURY RECOVERIES

When a minor or incapacitated person receives a settlement or judgment from any claim or action, a conservatorship action must be initiated by the plaintiff's attorney and any settlement approved by the court insofar as it affects the prjotected person or respondent. The judge presiding in probate shall appoint a conservator for the minor or incapacitated individual and determine whether any settlement is reasonable. A flag sheet shall be presented pursuant to Rule 103 for any hearing on a petition that seeks compromise of a tort claim on behalf of a minor or incapacitated person. COMMENTARY: Too frequently in tort actions, the plaintiff's attorney forgets about the need for a conservator to represent the interest of an injured person and then attempts to have the trial judge assume jurisdiction of a conservatorship proceeding to wrap into any settlement or judgment. While this may not cause problems outside the First Circuit, in that judges of the other circuits are generally experienced in conservatorship matters, if a trial judge in the First Circuit assumes jurisdiction of the conservatorship for purposes of disposition of the tort action, very often the requirements of the statute and rules are not met and the conservatorship has to be "cleaned up" later by the probate judge. By requiring the probate judge, and not the trial judge, to pass on matters with respect to the receipt of a settlement or award, greater efficiency will result as "clean up" proceedings should be eliminated. A reference to the flag sheet requirement of Rule 103 is added for clarity. (Amended April 28, 2006, effective July 1, 2006; further amended May 15, 2008, effective July 1, 2008.) [ Next page is HPR--49.]