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In re S.H.8/9/2002
make litigation decisions on S.H.'s behalf. It contends that, because Weidner never obtained the approval of the conservator to file the present action, the appeal should be dismissed. S.H. responds that Weidner's representation is proper and protected by the conservatorship statutes.
CPS cites In re Conservatorship of Nelsen as support for its argument that Weidner has no authority to represent S.H. In Nelsen, the Minnesota court of appeals held that the conservatee could not contractually retain an attorney without the approval of either the conservator or the court. This reasoning, CPS argues, should apply to the instant case.
The court in Nelsen, however, based its decision on the conservatorship order, which required the conservator to approve any contract, except for necessities, which the conservatee might make. The order appointing S.H.'s conservator was not as broad as the order in Nelsen. Rather than granting the conservator authority over all contracts, S.H.'s conservator was only given the authority to make "all necessary decisions on [S.H.'s] behalf in the ARI Case, including but not limited to accepting a settlement offer in the ARI Case or proceeding to trial with that litigation." Given the more limited nature of S.H.'s conservatorship, Nelsen does not apply.
Furthermore, AS 13.26.195 grants a prospective protected person the right to counsel in the conservatorship proceedings. Weidner is S.H.'s counsel under this statute, having substituted in for the original counsel appointed for S.H. by the court. While Weidner could not take part in any aspect of the ARI litigation, he is properly representing S.H. in the probate proceedings, including S.H.'s petition to terminate the conservatorship and this appeal.
B. S.H. I Controls this Case.
S.H. argues that the conservator did not have the authority to settle the case with CPS and ARI, as he petitioned for termination of his conservatorship. S.H. further argues that the superior court erred in granting the order for distribution of settlement funds and terminating the appointment of the conservator.
In 1997 the special conservator stated that it was in S.H.'s best interest to accept the settlement offer of $500,000 and that S.H.'s chances of recovering a judgment in excess of that offer were "basically nonexistent." Accordingly, the conservator approved the settlement on behalf of S.H. The conservator, CPS, and ARI then "stipulated to interplead the settlement funds." The settlement monies were deposited with the court registry and awaited distribution pending S.H.'s appeal to this court.
Our decision upholding the appointment of a conservator and ratifying his authority to enter into the settlement with ARI was announced in August 1999. On October 7, 1999 the special conservator and CPS filed a stipulation for distribution of settlement funds. That same day, S.H. petitioned to have the conservatorship revoked. However, as the settlement had been entered into in 1997, S.H.'s claim had already been disposed of by the conservator. When this court upheld the conservatorship, the settlement funds in the court registry became S.H.'s. As such, with the distribution of funds, S.H. no longer had an interest in the ARI litigation and the conservatorship was to end by the order of the appointment.
V. CONCLUSION
Because S.H.'s claims were settled by the conservator in 1997 prior to his petition for termination, the superior court did not err in failing to hold a hearing on S.H.'s petition. Accordingly, we AFFIRM the decisions of the superior court.
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