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Visser v. Mahan3/24/2005
p between plaintiff and her husband or the attorney hired by him to represent her.
Specifically, plaintiff's husband, in the capacity of next friend, had no legal duty to act on plaintiff's behalf. See C.R.C.P. 17(c); see also, e.g., Fox v. Crawford, 80 N.E.2d 187 (Ohio Ct. App. 1947) (agency is not inherent in the marital relationship). Similarly, until the husband was appointed as the special conservator in May 2003, the purported authority of counsel hired by the husband to pursue plaintiff's claims derived not from plaintiff, but only from her husband's status as next friend. See Rojhani v. Arenson, supra, 929 P.2d at 26 (rejecting contention that "plaintiffs' counsel's . . . knowledge of the child's injuries may be imputed to the child"); see also Antonopoulos v. Town of Telluride, supra, 187 Colo. at 399, 532 P.2d at 350 ("a minor's next friend is not a real party in interest, but rather a mere aid to the minor's assertion of his rights against the defendants" and, as a result, "the next friend's action or inaction in commencing the suit cannot prejudice the minor's rights").
Moreover, although the 1998 power of attorney granted plaintiff's future husband numerous broad powers to manage her affairs, it did not provide that it would survive plaintiff's disability. The disability of a principal who has previously executed a power of attorney that is not a durable power, such as here, constitutes a revocation or termination of the agency as to the attorney in fact (unless the attorney in fact, in good faith, acts without actual knowledge of the disability or incapacity of the principal). See § 15-14-502, C.R.S. 2004; see also § 15-14-501, C.R.S. 2004 (setting forth when power of attorney is not affected by disability); § 15-14-604, C.R.S. 2004 (power of attorney does not terminate if instrument contains language specified in § 15-14-501(1), C.R.S. 2004, or otherwise specifies that authority may be exercised notwithstanding principal's disability).
We do not agree with defendants' argument that, for purposes of determining the status of the husband's nondurable power of attorney under the Probate Code, plaintiff was not "disabled" until she was adjudicated an incapacitated person on July 17, 2003. If a formal adjudication of incapacity were required, the statutory provisions validating good faith actions of an attorney in fact acting under a nondurable power of attorney without actual knowledge of the principal's disability would be meaningless. See § 15-14-502.
More important, in the Probate Code, "disability" is defined as "cause for a protective order." Section 15-10-201(14), C.R.S. 2004 (emphasis added); see also § 15-14-102(11), C.R.S. 2004 (defining "protected person" as an individual for whom a conservator has been appointed or other protective order has been made). Compare In re Estate of Gallavan, 89 P.3d 521 (Colo. App. 2004) (appointment of conservator has no effect on testamentary capacity of protected person), with James v. Brookhart Lumber Co., 727 P.2d 1119 (Colo. App. 1986) (adjudication of "legal disability" required to toll workers' compensation statute of limitations).
Here, it was undisputed that plaintiff's permanent brain injury resulting from her operation on April 17, 2002 triggered the need for a protective order. Moreover, it was also undisputed that the husband had actual knowledge of plaintiff's condition following the surgery. Thus, the husband's nondurable power of attorney automatically terminated as of that date.
Accordingly, on this record, we agree with the trial court that knowledge of plaintiff's injuries was not imputed to her until the appointment of her legal representative and that the 180-day notice
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