2006 Code of Virginia § 8.01-9 - Guardian ad litem for persons under disability; when guardian ad litem need not be appointed for pe...

8.01-9. Guardian ad litem for persons under disability; when guardian adlitem need not be appointed for person under disability.

A. A suit wherein a person under a disability is a party defendant shall notbe stayed because of such disability, but the court in which the suit ispending, or the clerk thereof, shall appoint a discreet and competentattorney-at-law as guardian ad litem to such defendant, whether the defendanthas been served with process or not. If no such attorney is found willing toact, the court shall appoint some other discreet and proper person asguardian ad litem. Any guardian ad litem so appointed shall not be liable forcosts. Every guardian ad litem shall faithfully represent the estate or otherinterest of the person under a disability for whom he is appointed, and itshall be the duty of the court to see that the interest of the defendant isso represented and protected. Whenever the court is of the opinion that theinterest of the defendant so requires, it shall remove any guardian ad litemand appoint another in his stead. When, in any case, the court is satisfiedthat the guardian ad litem has rendered substantial service in representingthe interest of the person under a disability, it may allow the guardianreasonable compensation therefor, and his actual expenses, if any, to be paidout of the estate of the defendant. However, if the defendant's estate isinadequate for the purpose of paying compensation and expenses, all, or anypart thereof, may be taxed as costs in the proceeding or, in the case ofproceedings to adjudicate a person under a disability as an habitual offenderpursuant to former 46.2-351.2 or former 46.2-352, shall be paid by theCommonwealth out of the state treasury from the appropriation for criminalcharges. In a civil action against an incarcerated felon for damages arisingout of a criminal act, the compensation and expenses of the guardian ad litemshall be paid by the Commonwealth out of the state treasury from theappropriation for criminal charges. If judgment is against the incarceratedfelon, the amount allowed by the court to the guardian ad litem shall betaxed against the incarcerated felon as part of the costs of the proceeding,and if collected, the same shall be paid to the Commonwealth. By order of thecourt, in a civil action for divorce from an incarcerated felon, thecompensation and expenses of the guardian ad litem shall be paid by theCommonwealth out of the state treasury from the appropriation for criminalcharges if the crime (i) for which the felon is incarcerated occurred afterthe date of the marriage for which the divorce is sought, (ii) for which thefelon is incarcerated was committed against the felon's spouse, child, orstepchild and involved physical injury, sexual assault, or sexual abuse, and(iii) resulted in incarceration subsequent to conviction and the felon wassentenced to confinement for more than one year. The amount allowed by thecourt to the guardian ad litem shall be taxed against the incarcerated felonas part of the costs of the proceeding, and if collected, the same shall bepaid to the Commonwealth.

B. Notwithstanding the provisions of subsection A or the provisions of anyother law to the contrary, in any suit wherein a person under a disability isa party and is represented by an attorney-at-law duly licensed to practice inthis Commonwealth, who shall have entered of record an appearance for suchperson, no guardian ad litem need be appointed for such person unless thecourt determines that the interests of justice require such appointment; orunless a statute applicable to such suit expressly requires that the personunder a disability be represented by a guardian ad litem. The court may, inits discretion, appoint the attorney of record for the person under adisability as his guardian ad litem, in which event the attorney shallperform all the duties and functions of guardian ad litem.

Any judgment or decree rendered by any court against a person under adisability without a guardian ad litem, but in compliance with the provisionsof this subsection B, shall be as valid as if the guardian ad litem had beenappointed.

(Code 1950, 8-88, 8-88.1; 1972, c. 720; 1977, c. 617; 1996, c. 887; 1999,cc. 945, 955, 987; 2001, c. 127; 2003, c. 563.)