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

Subsection A keeps a suit moving even when the defendant is a person under a disability: the suit is not stayed because of that disability. Instead, the court or its clerk appoints a discreet and competent attorney as guardian ad litem for the defendant, whether or not the defendant has been served with process, or some other discreet and proper person if no attorney will act. The guardian ad litem is not liable for costs, must faithfully represent the defendant’s estate or other interest, and the court has an ongoing duty to see that interest is represented and protected — including removing and replacing a guardian ad litem whenever the defendant’s interest requires it.

Compensation for the guardian ad litem generally comes from the defendant’s estate, when the court is satisfied the guardian has rendered substantial service — reasonable compensation and actual expenses, taxed as costs in the proceeding if the estate cannot cover them. The section then sets out special, state-funded arrangements for particular cases: in a civil action against an incarcerated felon for damages arising from a criminal act, the Commonwealth pays the guardian ad litem’s compensation and expenses from the state treasury, recouping the amount as costs against the felon if judgment goes against him and the amount is collected. A similar state-funded arrangement applies in a divorce action against an incarcerated felon whose crime occurred after the marriage, was committed against the felon’s spouse, child, or stepchild involving physical injury, sexual assault, or sexual abuse, and resulted in a sentence of confinement for more than one year.

Subsection B carves out an exception to the appointment requirement itself. If the person under a disability is represented by a licensed Virginia attorney who has entered an appearance, no guardian ad litem need be appointed, unless the court determines the interests of justice require it or a statute applicable to the suit expressly requires guardian ad litem representation. The court may, at its discretion, appoint that same attorney of record as guardian ad litem, in which case the attorney performs all the usual guardian ad litem duties. A judgment or decree entered without a guardian ad litem, but in compliance with this exception, is as valid as if a guardian ad litem had been appointed.