A recent Virginia Supreme Court case highlights the importance of using precise language in an order appointing a guardian, as well as ensuring that when a guardian files suit on behalf of
a ward, the guardian sues in the correct capacity.

The Virginia Supreme Court recently handed down its ruling in Lopez-Rosario v. Habib, 785 S.E.2d 214 (2016), which dealt with an appeal from the Fairfax County Circuit Court. The Court confronted the issue of whether the trial court properly dismissed a medical malpractice claim on the ground that the plaintiff filed suit in her own name, despite the fact that she had co-guardians. The plaintiff was an adult with several physical and cognitive disabilities, whose parents obtained co-guardianship over her. Later, the plaintiff filed a medical malpractice lawsuit in her own name. The defendant in that lawsuit moved to dismiss the claim by filing a plea in bar, asserting that the plaintiff lacked legal standing to file suit because she was subject to a guardianship (and that instead, the proper party to the action would have been the parents as co-guardians of the ward). The circuit court granted the motion to dismiss, and the ward appealed, alleging that her parents’ authority (under the order appointing them as co-guardians) did not extend to filing legal actions on her behalf.

The Virginia Supreme Court began its analysis by reiterating current Virginia law that a ward subject to a guardianship has no legal standing to file suit in her own name. See Virginia Code Section 64.2-2025.

The Court then examined whether the language in the order appointing the co-guardians provided for a limited guardianship, such that the co-guardians did not have authority to make legal decisions on behalf of the ward (in which case the ward could have properly sued in her own name). The Court ruled that the language of the order “did not specify any limitations on the parents’ guardianship, effectively granting them all of the authority that a court may vest in a guardian.” As a result, the parents where full guardians (rather than limited ones), and therefore the ward lacked standing to sue in her own name.

There are two important lessons to take away from this case. First, it is very important for attorneys to pay extremely close attention to the language that they use in guardianship orders. Most attorneys who handle guardianships on behalf of clients routinely use the same form order for each matter, and some attorneys may be tempted to put relatively little thought into adapting the order for each new case. That would be a mistake. Each guardianship proceeding is unique, and attorneys should carefully think through how each order should read, not only with respect to whether a limited guardianship is appropriate, but also, if a limited guardianship is appropriate, what limits should be placed on it.

The second lesson is that litigators should be absolutely certain that they are well acquainted with Virginia Code Sections 64.2-2025 and 8.01-6.3. As discussed above, Section 64.2-2025 provides that an incapacitated person subject to a guardianship has no legal standing to file suit in her own name. Section 8.01-6.3 provides that the correct styling of a lawsuit brought by a guardian on behalf of a ward should read: X-fiduciary, as guardian of Y-ward.