A Hawaii personal injury attorney must be mindful of special procedures he or she must follow when litigating a personal injury action on behalf of a minor or an incapacitated person. Because a minor or incapacitated person cannot make an informed decision regarding his or her case, Hawaii law requires that any settlement or judgment received in a minor’s court case be approved by a judge presiding in probate and that a conservator is appointed on behalf of the minor or incapacitated person. Rule 101 of the Hawaii Probate Rules makes it the Plaintiff’s Attorney’s responsibility to initiate a conservatorship action for the eventual settlement or judgment in favor of the minor or incapacitated plaintiff. Rule 101 of the Hawaii Probate Rules states as follows:
Rule 101. 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 protected 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.
Hawaii Rules of Probate Court R. 101.
The personal injury attorney’s responsibility to initiate conservatorship proceedings and obtain judicial approval of settlement or judgment extends to matters in Federal Court. Indeed, Rule 17.1 of the Local Rules of the District Court of Hawaii requires that Federal Court litigants abide by state laws (i.e., HRP 101) as to court approval of settlements involving minors. Rule 17.1 provides as follows:
Except as otherwise permitted by statute or federal rule, no action by or on behalf of a minor or incompetent shall be dismissed, discontinued, or terminated without the approval of the court. When required by state law, court approval shall also be obtained from the appropriate state court having jurisdiction over such matters for any settlement or other disposition of litigation involving a minor or incompetent.
LR 17.1 (emphasis added).
Additionally, even Hawaii personal injury attorneys obtaining settlements or awards in arbitration in favor of a minor or incapacitated person must initiate a conservatorship proceeding and have that settlement or award approved by a judge sitting in probate. H.R.S. § 658A-22 states that a party receiving an arbitration award may ask the court to confirm the award. H.R.S. § 658A-22 provides as follows:
After a party to an arbitration proceeding receives notice of an award, the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to section 658A-20 or 658A-25 or is vacated pursuant to section 658A-23.
HRS § 658A-22.
The confirmation of an arbitration award converts the award into an enforceable judgment, thus triggering Hawaii Probate Rule 101. Mikelson v. United Services Auto. Ass’n, 122 Hawai’i 393, 396 (Hawai‘i App. 2010) (“Confirmation of an arbitration award is an ‘expeditious procedure for reducing or converting the arbitration award to a judgment which can be enforced by judicial writ.’”). The Hawaii personal injury attorney who receives a favorable outcome for his or her minor or incapacitated client is cautioned not to forget these important special requirements in representing a minor or incapacitated client.