William & Mary Journal of Race, Gender, and Social Justice
When Legal Incapacity Becomes a Lack of Personhood: Why a Ward's Ability to Sue in Their Own Name Should be a Fundamental Aspect of Virginia Guardianship
It is a fundamental failing of any legal system when it is unable to protect the most vulnerable within its population. Whether we are comfortable admitting it or not, guardian abuse of incapacitated wards has been well-documented across all fifty states. Virginia is no exception, and this lack of oversight leaves one of our most vulnerable populations without recourse. This Note argues that by simply granting a ward the ability to bring suit in their own name, Virginia may strike a significant blow to the dysfunction that systematically infects the guardianship process. This Note highlights Virginia statute and case law to draw attention to ineffective guardianship regulations that put incapacitated persons at risk. This Note will analyze Virginia statute and how the overall lack of agency for wards leaves a gaping hole for guardianship abuse to fester. This Note will also examine two recent cases, Lopez-Rosario v. Habib and Cook v. Radford Community Center, that continued to restrict a ward’s ability to bring suit in their own name. Finally, this Note will address how the legal system has failed incapacitated wards by trying their hands behind their backs—if a ward cannot bring suit in their own name, then there is little recourse for abuse suffered at the hands of a guardian. To conclude, this Note will discuss potential steps forward, and methods that Virginia courts and legislature can take to ensure that a vulnerable population does not continue to slip through the cracks of the legal system.