(dissenting):
I dissent. It is uncontested that attorney Keith Nelson had no authority to act for Mrs. Blackhurst. She was incompetent and could not, therefore, enter into a contract herself. Since neither Mr. Nelson nor anyone else was ever appointed guardian for her, a contract between her and anyone else was void. While I have no doubt that Mr. Nelson acted out of legitimate motivations in looking after Mrs. Blackhurst’s interests, Mr. Nelson was not, and could not be, her agent or attorney in settling her claim. Therefore, the agreement that Mr. Nelson negotiated with Transamerica was a complete nullity in the eyes of the law. Indeed, Mr. Nelson knew he lacked authority and represented to Transamerica that the settlement documents would be executed by a person who had authority to sign for Mrs. Blackhurst.
Not content with simply one rationale for its conclusion, the majority advances three reasons to support its result: (1) the settlement agreement is a valid contract because the reasons for requiring the appointment of a guardian were satisfied even though not complied with; (2) Transamerica is es-topped to deny that Mr. Nelson had authority to settle; and (3) even if Mr. Nelson had no authority initially, his acts were subsequently ratified by Mrs. Blackhurst’s estate. Since any one of the three, if valid, should be satisfactory, it appears that even the majority detects some flaw in each.
The majority states that the rule requiring appointment of a guardian was not designed to burden or hinder an incompetent from enforcing his rights or to confer an advantage on one who tries to take advantage of an incompetent. However, the majority also recognizes the general rule that only a general guardian can compromise the claims of an incompetent, but argues that in this case, application of that rule “would not benefit the incompetent person or her estate, but rather would penalize her estate.” In truth, application of the rule does not penalize the estate.
It is fundamental law that Mrs. Black-hurst could not contract because she was incompetent. It is equally fundamental that Mr. Nelson could not contract for her because he had no authority to do so. Indeed, both orally and in its letter to Mr. Nelson accompanying the settlement agreement, Transamerica expressly conditioned the settlement agreement upon the appointment of a general guardian. Mr. Nelson *695knew that the agreement was contingent. The majority’s statement that “[n]o objections were raised with regard to Nelson’s authority to negotiate or enter into an agreement” is plainly wrong. Trans-america’s insistence upon the appointment of a guardian was founded on the elementary proposition, accepted by everyone in the case, that Mr. Nelson had no authority to act for Mrs. Blackhurst. Transamerica knew it could not settle with Mr. Nelson as an individual. Indeed, had Transamerica been so heedless of basic law, it could have been compelled to pay a second time to a duly authorized guardian. Furthermore, it was Mr. Nelson’s responsibility to obtain the necessary judicially authorized authority. It was not the duty of Transamerica to object to his lack of authority. The majority’s position that there was in fact a contract with Transamerica simply turns the law of contracts on its head.
To hold that Mr. Nelson entered into a contract binding on Mrs. Blackhurst or her guardian is fraught with far-reaching consequences. If the agreement between Nelson and Transamerica is valid in the instant case, then it would have to be binding no matter how improvident the terms of the contract. The law governing guardians and the contractual capacity of incompetent persons is designed to protect the incompetent. But how can an incompetent be protected if he can be bound by contracts made by interlopers who are not appointed by a court? I have no doubt that Mr. Nelson sought to protect Mrs. Blackhurst’s interest with zeal and sound judgment in this particular case. But what if someone else had settled Mrs. Blackhurst’s claim for one-half or one-tenth the amount? How and by whom would the incompetent’s interests then be protected?
Furthermore, the majority fails to distinguish between two different jural entities —Mrs. Blackhurst and her estate. A personal representative appointed to probate an estate has different duties and represents different interests than a guardian of an incompetent. Each has a different legal status, and each has different legal authority and power. It is quite true that the law requiring the appointment of a guardian should not be employed unfairly against an incompetent. Morris v. Russell, 120 Utah 545, 236 P.2d 451 (1951), stands for that general statement as the majority points out, but that case is far different on its facts and hardly justifies overriding the clear intent of Transamerica and Mr. Nelson that a guardian should be appointed.1
The majority’s estoppel argument is also devoid of merit. The plain fact is that Mr. Nelson, either as the putative guardian or as the representative of the estate, did not change his position because of any reliance on Transamerica’s representations. On the contrary, it was Transamerica that relied on Mr. Nelson’s obligation to obtain the requisite authority. That was an express condition of the compromise agreement.
The majority suggests that it would be “patently unfair” to hold in favor of Trans-america because Mrs. Blackhurst’s estate would be penalized if Transamerica were not held liable. The majority does not explain how that can possibly be; the facts indicate quite the opposite. The settlement was to provide Mrs. Blackhurst sufficient money to take care of her needs until she died. Before Mr. Nelson accepted the settlement offer of $150,000, he proposed a settlement of $182,000 based on a yearly maintenance figure of $26,000 per year, assuming that Mrs. Blackhurst would live for seven years. Other settlement figures that Mr. Nelson proposed assumed a life expectancy of as long as eleven years. Obviously the damage calculations were intended to support Mrs. Blackhurst while *696she lived and not benefit her heirs. To give the estate the damages intended for Mrs. Blackhurst’s living and medical expenses, as well as her general damages, is not required by any notion of fairness with which I am familiar. The estate may well have had a wrongful death action for Mrs. Blackhurst’s death, but that is an entirely different cause of action based on an entirely different measure of damages. The short of it is that the majority's position that it would be “patently unfair” if Trans-america were not held liable because the estate would be penalized is, I submit, plainly in error. Enforcement of the agreement in this case- simply results in a windfall to the heirs of Mrs. Blackhurst.
I would reverse.
ZIMMERMAN, J., does not participate herein.. In Morris v. Russell, the plaintiff himself was the incompetent who brought a contract action for the value of services rendered. There, strict application of the rule would have indeed hindered the plaintiff from enforcing his right. In the instant case, the incompetent is not the plaintiff. She is deceased. Thus, Morris has no application here. Indeed, the law, as applied, swallows the rule requiring the appointment of guardians and would allow an unauthorized person to compromise a claim against an incompetent even if it is prejudicial to the incompetent.