Can a Virginia circuit court appoint a guardian ad litem to represent minor children in a workers' compensation case pending before the Virginia Workers' Compensation Commission?

Plain-English summary

Judge Charles Dorsey of the Twenty-third Judicial Circuit asked a procedural question that had been quietly stalling settlements in Virginia workers' comp cases. The decedent in the underlying claim left two minor children among his three dependents. The estate and the defendants reached a tentative settlement before the Virginia Workers' Compensation Commission, but the settlement needed approval on behalf of the minor beneficiaries. The estate petitioned the circuit court to appoint a guardian ad litem to represent the children. The judge held off, asking the AG whether he had the authority to do so.

The AG concluded that he did.

The path to that conclusion ran through two reasonable but ultimately failing arguments and ended at a third that worked. First, the Commission itself cannot appoint a guardian ad litem. As the AG explained, the Act does not empower the Commission to do so, and the Commission's own scant case law and its standing, historical practice both confirm it: the Commission directs parties to apply to the appropriate circuit court instead.

Second, the standard statutory authority for circuit courts to appoint guardians ad litem, Va. Code § 8.01-9(A), did not directly apply. As the AG quoted, that statute covers a person under a disability who is a party defendant in a pending suit. The minor children here were claimants, not defendants. And there was no underlying suit pending in the circuit court; the proceeding sat before the Commission.

Third (the answer), circuit courts in Virginia possess inherent equitable power to appoint guardians ad litem. This power, the AG explained, is not limited to what statute grants; it stems from the common law doctrine of parens patriae, which the opinion defined as "that power of the Commonwealth to watch over the interests of those who are incapable of protecting themselves." The AG quoted the long-standing principle that "[i]n all suits or legal proceedings, of whatever nature, in which the . . . rights of a minor are involved, the protective powers of a court of chancery may be invoked whenever it becomes necessary to fully protect such rights."

The AG added a procedural condition: the circuit court must first make a preliminary finding that appointing a guardian ad litem serves the best interests of the child. That finding is the predicate for invoking the equitable power.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, Title 64.2 of the Virginia Code (guardianship provisions) has been substantively revised since 2013, and the Virginia Workers' Compensation Act has had multiple amendments. Anyone facing a real GAL question in a workers' comp case should look at the current statutes and any Commission rule changes.

Common questions

What is a guardian ad litem?
A special guardian appointed by a court for the limited purpose of representing the interests of a minor or incompetent person in a particular legal proceeding. They are officers of the court, not personal guardians of the property or person.

Why couldn't the Workers' Compensation Commission appoint one itself?
The AG concluded that the Workers' Compensation Act does not empower the Commission to appoint a guardian ad litem. The Commission's own case law on the subject, though scant, reinforces that it cannot, and its standing practice is to send parties to the appropriate circuit court for the appointment.

Why didn't § 8.01-9 apply directly?
Two reasons. First, by its terms, § 8.01-9(A) covered persons under a disability who are defendants in suits. The minor children here were claimants in the workers' comp case, not defendants. Second, the statute requires that the suit be "pending" in the court that appoints the GAL, and there was no separate suit pending in the circuit court (the case was before the Commission).

What is parens patriae?
A doctrine the AG defined as "that power of the Commonwealth to watch over the interests of those who are incapable of protecting themselves." Originally a royal prerogative, it migrated into common-law equity jurisdiction. In Virginia it shows up as the chancery court's protective duty toward minors and persons under disability.

Could the circuit court appoint a guardian ad litem for any minor in any Commission proceeding?
Not automatically. The AG flagged that the court must first make a preliminary finding that the appointment serves the best interests of the child. That is the equitable predicate.

Background and statutory framework

The statute the AG quoted and analyzed:

• Va. Code § 8.01-9(A): the general statutory authority for appointing guardians ad litem. The AG quoted it: "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 ... shall appoint a discreet and competent attorney-at-law as guardian ad litem to such defendant ...." He found it inapplicable for two reasons: the minors were claimants, not party defendants, and no underlying suit was pending in the circuit court.

The interpretive move: a circuit court's ability to appoint guardians ad litem is not limited to what statute grants. The court's inherent equitable power, grounded in parens patriae, supplies authority the statute does not. The AG relied on that inherent power, quoting the chancery-court principle without citing a particular decision by name.

Process the opinion endorsed:

1. Estate files a petition in circuit court asking for appointment of GAL for minor beneficiaries with interests in a VWCC matter.
2. Circuit court makes a preliminary finding about the child's best interests.
3. If satisfied, the court appoints the GAL.
4. The GAL then represents the children's interests in the proceedings before the Commission.

Citations

• Va. Code § 2.2-505 (authority for the advisory opinion)
• Va. Code § 8.01-9(A) (general guardian ad litem appointment statute, found inapplicable)

The opinion's parens patriae and chancery-power discussion is quoted without naming any particular case.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-006_Dorsey.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

April 19, 2013

The Honorable Charles N. Dorsey
Judge, Twenty-third Judicial Circuit
Roanoke City Courthouse
315 Church Avenue, S.W.
Post Office Box 211
Roanoke, Virginia 24002-0211

Dear Judge Dorsey:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a circuit court may appoint a guardian ad litem to represent a minor beneficiary in a proceeding pending before the Virginia Workers' Compensation Commission ("VWCC" or "the Commission").

Response

It is my opinion that the Circuit Court may appoint a guardian ad litem in proceedings pending before the VWCC.

Background

You relate a scenario in which the Estate of a deceased person filed a claim for compensation with the Commission pursuant to the Virginia Workers' Compensation Act (the "Act"). You state that the decedent, for purposes of the Act, was survived by three dependents, including two minor children. The Estate and the defendants reached a tentative settlement agreement subject to the approval of the minor children. The Estate then filed in your Court a Petition to Appoint Guardian ad Litem to represent the two minor children in proceedings before the Commission. You declined to appoint a guardian ad litem until the Attorney General rendered an advisory opinion regarding the subject. Subsequently, upon the Estate's request, you entered an order of non-suit dismissing the Petition to Appoint Guardian ad Litem without prejudice.

Applicable Law and Discussion

The petitioners have asked your Court to appoint a guardian ad litem to represent the minors' interests with regard to the settlement of a claim pending before the VWCC. A guardian ad litem is a special guardian appointed by the court to prosecute or defend, on behalf of an infant or incompetent, a lawsuit to which he is a party, and such guardian is considered an officer of the court to represent the interest of the infant or incompetent in the litigation. The Act does not empower the Commission itself to appoint a guardian ad litem. Case law from the VWCC regarding the appointment of guardians ad litem, while scant, reinforces the VWCC's inability to appoint a guardian ad litem. The Commission's standing, and historical, practice is to direct the parties to apply to the appropriate circuit court for the appointment of a guardian ad litem.

A customary practice of the VWCC does not necessarily confer power upon a circuit court to appoint guardians ad litem for proceedings before the VWCC. In light of the fact that the VWCC may not appoint a guardian ad litem to represent the interests of a minor child in a workers' compensation claim, we must review the circuit court's power to appoint a guardian ad litem for proceedings before the VWCC.

One source of authority of a circuit court to appoint a guardian ad litem is statutory. The general statutory provision for the appointment of guardians ad litem states:

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....

This statute is inapplicable here for two reasons. First, the minor children are not party defendants in the VWCC proceedings or in your Court; rather, they are claimants seeking approval of a settlement of their deceased father's workers' compensation claim. Second, only the court "in which the suit is pending" may appoint guardians ad litem pursuant to the language of the statute. No underlying suit is pending in your Court. Therefore, the guardian ad litem appointment power contained in § 8.01-9(A) does not grant a circuit court the power to appoint guardians ad litem in this scenario.

Nonetheless, a circuit court's ability to appoint guardians ad litem is not limited to the authority granted the court by statute. Rather, a circuit court has the inherent power to appoint guardians ad litem. This inherent equitable power and responsibility stems from the common law doctrine of parens patriae, which is "defined as that power of the Commonwealth to watch over the interests of those who are incapable of protecting themselves." "In all suits or legal proceedings, of whatever nature, in which the . . . rights of a minor are involved, the protective powers of a court of chancery may be invoked whenever it becomes necessary to fully protect such rights." I therefore conclude that the circuit court does have the power to appoint a guardian ad litem to represent the minor children in proceedings before the VWCC.

To effectuate its protective powers, the established practice is that a guardian ad litem may be appointed after a trial judge makes a preliminary finding that the best interests of the child require such appointment. In the instant case, your Court was presented with a petition to appoint a guardian ad litem to represent the minor children's interests in proceedings before the VWCC. The petition specifically stated that "[i]n order to protect the Hubbard Children's interest in [their deceased father's estates' settlement before the VWCC], a guardian ad litem should be appointed." Upon a determination that it is in the best interests of the child, the circuit court has the equitable power to appoint a guardian ad litem.

Conclusion

Accordingly, it is my opinion that a circuit court has jurisdiction to appoint guardians ad litem to protect the interests of minor children in proceedings before the VWCC.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General