Virginia Code

Va. Code Ann. § 8.01-9 (2026)

Guardian ad litem for persons under disability; when guardian ad litem need not be appointed for person under disability

✓ current as of May 2026

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A. A suit wherein a person under a disability is a party defendant shall not be stayed because of such disability, but the court in which the suit is pending, or the clerk thereof, shall appoint a discreet and competent attorney-at-law as guardian ad litem to such defendant, whether the defendant has been served with process or not. If no such attorney is found willing to act, the court shall appoint some other discreet and proper person as guardian ad litem. Any guardian ad litem so appointed shall not be liable for costs. Every guardian ad litem shall faithfully represent the estate or other interest of the person under a disability for whom he is appointed, and it shall be the duty of the court to see that the interest of the defendant is so represented and protected. Whenever the court is of the opinion that the interest of the defendant so requires, it shall remove any guardian ad litem and appoint another in his stead. When, in any case, the court is satisfied that the guardian ad litem has rendered substantial service in representing the interest of the person under a disability, it may allow the guardian reasonable compensation therefor, and his actual expenses, if any, to be paid out of the estate of the defendant. However, if the defendant's estate is inadequate for the purpose of paying compensation and expenses, all, or any part thereof, may be taxed as costs in the proceeding. In a civil action against an incarcerated felon for damages arising out of a criminal act, the compensation and expenses of the guardian ad litem shall be paid by the Commonwealth out of the state treasury from the appropriation for criminal charges. If judgment is against the incarcerated felon, the amount allowed by the court to the guardian ad litem shall be taxed 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 the court, in a civil action for divorce from an incarcerated felon, the compensation and expenses of the guardian ad litem shall be paid by the Commonwealth out of the state treasury from the appropriation for criminal charges if the crime (i) for which the felon is incarcerated occurred after the date of the marriage for which the divorce is sought, (ii) for which the felon is incarcerated was committed against the felon's spouse, child, or stepchild and involved physical injury, sexual assault, or sexual abuse, and (iii) resulted in incarceration subsequent to conviction and the felon was sentenced to confinement for more than one year. The amount allowed by the court to the guardian ad litem shall be taxed against the incarcerated felon as part of the costs of the proceeding, and if collected, the same shall be paid to the Commonwealth.

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

Any judgment or decree rendered by any court against a person under a disability without a guardian ad litem, but in compliance with the provisions of this subsection, shall be as valid as if the guardian ad litem had been appointed.

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; 2021, Sp. Sess. I, c. 463.

Notes of Decisions

Cited in 79 cases (9 in the last 5 years), 1979–2025 · leading case: Holsapple v. Commonwealth, 574 S.E.2d 756 (Va. Ct. App. 2003).

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Holsapple v. Commonwealth, 574 S.E.2d 756 (Va. Ct. App. 2003). · cites it 12× “1 does not require proof of actual notice; 2) Holsapple was not subject to a disability pursuant to Code §§ 8.01-9 and 53.1-223; 3) the unsatisfactory performance demonstrated on these facts amounted to a failure to perform under Code § 18.”

Verrocchio v. Verrocchio, 429 S.E.2d 482 (Va. Ct. App. 1993). · cites it 10× “Husband argues that there is no authority for a circuit court to appoint a guardian ad litem except in those instances when the person under a disability is a party defendant as set forth in Code § 8.”

Pigg v. Commonwealth, 441 S.E.2d 216 (Va. Ct. App. 1994). · cites it 15× “, without deciding, that [under Code § 8-88, the predecessor to Code § 8.01-9,] appointment of either a committee or guardian ad litem for an insane defendant .”

Cook v. Radford Cmty. Hosp., Inc., 536 S.E.2d 906 (Va. 2000). · cites it 10× “Cook next argues that the policy underlying Code § 8.01-9 requires that she be granted leave to amend her petition in this case.”

Ruffin v. Commonwealth, 393 S.E.2d 425 (Va. Ct. App. 1990). · cites it 16× “As well, the defendant argues that, when it became known to him that he did not desire his services, Mr. Barker had a duty to notify the court of his client's wishes and attempt to withdraw as guardian.”

Yopp v. Hodges, 598 S.E.2d 760 (Va. Ct. App. 2004). · cites it 4× “, while not binding or controlling, should not be disregarded" and that, "[t]he duty of a guardian ad litem in a child custody dispute is to see that the interest of the child is `represented and protected'" (quoting Code § 8.01-9)). Most significantly, however, in leaving the…”

Cordova v. Alper, 64 Va. Cir. 87 (Fairfax Cir. Ct. 2004). · cites it 11× “6) and, as no guardian ad litem was appointed to represent his interests pursuant to Va. Code § 8.01-9, the judgment in The Law Case is void.”

Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995). · cites it 4× “This child had no other independent participant in the proceeding, aside from the trial court, to protect his interests.”

Coffey v. Virginia Birth-Related Neurological Injury Comp. Prog., 558 S.E.2d 563 (Va. Ct. App. 2002). · cites it 6× “2d 906 (2000), and held: [Code § 8.01-9] is not concerned with the capacity of a person under a disability to sue but with the protection of such person when named as a defendant in a lawsuit.”

Com., Dept. of Soc. Servs. v. Johnson, 376 S.E.2d 787 (Va. Ct. App. 1989). · cites it 3× “This public policy would be thwarted if a child were bound by a paternity determination in which the child’s independent rights and interests were not adequately protected.”

Graham v. City of Manassas Sch. Bd., 390 F. Supp. 3d 702 (E.D. Va. 2019). · cites it 4× “First, because Christian is incarcerated and thus deemed to be incapacitated under state law, see Va. Code Ann. § 8.01-9 (A), 7 plaintiffs have voluntarily dismissed him from this civil action.”

Stanley v. Fairfax Cnty. Dep't of Soc. Servs., 395 S.E.2d 199 (Va. Ct. App. 1990). · cites it 4× “Therefore, since no specific statutory provision either grants or denies the guardian ad litem the power to file a petition seeking the termination of residual parental rights, we find that such action is consistent with Norfolk Division of Social Services and Givens , and…”

Show all 79 citing cases →

— Va. Code Ann. § 8.01-9(13) — 1 case

Nathaniel Edward Green, III v. Edith H. Rameika (Va. Ct. App. 2023).

— Va. Code Ann. § 8.01-9(A) — 27 cases

Pigg v. Commonwealth, 441 S.E.2d 216 (Va. Ct. App. 1994). “, without deciding, that [under Code § 8-88, the predecessor to Code § 8.01-9,] appointment of either a committee or guardian ad litem for an insane defendant .”

Joseph A. Wiencko, Jr. v. Akemi Takayama, 745 S.E.2d 168 (Va. Ct. App. 2013).

Verrocchio v. Verrocchio, 429 S.E.2d 482 (Va. Ct. App. 1993). “Husband argues that there is no authority for a circuit court to appoint a guardian ad litem except in those instances when the person under a disability is a party defendant as set forth in Code § 8.”

Ruffin v. Commonwealth, 393 S.E.2d 425 (Va. Ct. App. 1990). “As well, the defendant argues that, when it became known to him that he did not desire his services, Mr. Barker had a duty to notify the court of his client's wishes and attempt to withdraw as guardian.”

Matter of Baby K, 832 F. Supp. 1022 (E.D. Va. 1993).

— Va. Code Ann. § 8.01-9(B) — 7 cases

Wright v. Commonwealth, 427 S.E.2d 379 (Va. 1993).

Wilson v. Commonwealth, 477 S.E.2d 7 (Va. Ct. App. 1996).

Buchanan Cnty., VA v. Blankenship, 406 F. Supp. 2d 642 (W.D. Va. 2005).

Englehart v. Green, 2 Va. Cir. 5 (Henrico Cir. Ct. 1980).

Kayla S. Scott v. City of Petersburg Dep't of Soc. Servs. (Va. Ct. App. 2017).

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