Present: All the Justices 

ALTA R. COOK, ET AL. 

v. Record No. 992710 OPINION BY JUSTICE ELIZABETH B. LACY 

 November 3, 2000 

RADFORD COMMUNITY HOSPITAL, 

INCORPORATED, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF RADFORD 

Duane E. Mink, Judge 

 In this appeal, we consider whether Code § 37.1-141 

precludes the filing of an action by a person adjudged 

incapacitated and requires such action to be brought by the 

guardian of the incapacitated person. 

 On December 20, 1995, Alta R. Cook (Cook) was declared 

incapacitated pursuant to former Code § 37.1-132.1 Cook's 

husband, Donnie R. Cook, was appointed as her guardian. On 

November 24, 1997, Cook, in her own name, filed a medical 

malpractice action against Radford Community Hospital, 

Incorporated, and Drs. Mark Todd and Robert C. Solomon for 

injuries she alleged resulted from treatment she received 

while a patient at the Hospital from November 24, 1995 to 

January 17, 1996. She filed an amended motion for judgment in 

November 1998. The defendants filed a joint motion to dismiss 

arguing that, because a guardian had been appointed for Cook, 

Code § 37.1-141 required that her guardian prosecute the 
action. Agreeing that Cook did not have standing to sue in 

her own right, the trial court determined that Cook was not 

entitled to amend her pleadings under either the misnomer 

statute, Code § 8.01-6, or the misjoinder statute, Code 

§ 8.01-5, and dismissed Cook's motion for judgment. Cook 

appeals from that judgment. 

 Cook acknowledges that pursuant to Code § 37.1-141, a 

fiduciary "should prosecute actions for his ward." 

Nevertheless, she maintains that the failure to comply with 

the statute does not preclude pleading amendments to cure any 

defects. 

 Code § 37.1-141 provides: 

All actions or suits to which the ward is a 

party at the time of qualification of the 

fiduciary and all such actions or suits 

subsequently instituted shall, subject to any 

conditions or limitations set forth in the 

order appointing him, be prosecuted or 

defended, as the case may be, by the fiduciary, 

after ten days' notice of the pendency thereof, 

which notice shall be given by the clerk of the 

court in which the same are pending. 

The use of the word "shall" indicates that prosecution of a 

ward's cause of action by the fiduciary, if one has been 

 1

 Code § 37.1-132, addressing incapacity, was repealed by 

Acts 1997, c. 921, effective January 1, 1998. For the current 

version of the statute, see Code § 37.1-134.13. 

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appointed, is mandatory.2 Failure to comply with a mandatory 

condition can preclude curative amendments. 

"Shall," however, does not always impose a mandatory 

condition. It has been construed as permissive or directory 

rather than mandatory depending on the subject matter and 

context in which it is used. White v. Morano, 249 Va. 27, 32, 

452 S.E.2d 856, 859 (1995); Fox v. Custis, 236 Va. 69, 77, 372 

S.E.2d 373, 377 (1988). To determine whether "shall" as used 

in Code § 37.1-141 is mandatory or permissive, we will review 

the history of the statute and relevant case law. 

No statute specifically required that claims of a ward be 

prosecuted by a fiduciary until 1950. However, as early as 

1872, this Court in Bird's Committee v. Bird, 62 Va. (21 

Gratt.) 712 (1872), stated that "when there is a committee, 

. . . every suit respecting the person or estate of the 

lunatic must be instituted in his name." Id. at 716. In that 

case, a person of unsound mind filed an action by next friend 

against her former committee over the settlement of accounts. 

Because of the factual situation involved, the Court in Bird's 

Committee allowed the case to proceed by carving out a narrow 

 2

 The statutes and case law addressed in this opinion use 

the terms guardian, committee, and fiduciary depending upon 

the ward's particular disability. For purposes of construing 

Code § 37.1-141, unless the context requires otherwise, we use 

the general term "fiduciary" to refer to the person who has 

been charged with the care of a ward. 

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exception to the general rule: "[W]herever the interests of 

the committee clash with those of the lunatic, or when no 

committee has ever been appointed, the lunatic should be 

permitted to institute a suit in his or her own name, with 

some responsible person named as next friend and approved by 

the court." Id. at 718. 

In Cole's Committee v. Cole's Adm'r, 69 Va. (28 Gratt.) 

365 (1877), a proceeding instituted in the name of a person of 

unsound mind was challenged because it was not brought by the 

fiduciary. Again, this Court allowed the action to proceed, 

finding that the action was "substantially a suit by the 

committee" because it was styled in the name of the person of 

unsound mind, suing "by his next friend and committee." Id.

at 370-71. 

By 1934, "the established rule" was that suits against 

persons declared insane must be brought in the name of the 

committee and that adults " 'who are incapable of acting for 

themselves, though neither idiot nor lunatic, have been 

permitted to sue by their next friend.' " Counts v. Counts, 

161 Va. 768, 777, 172 S.E. 248, 251 (1934). This rule was 

premised on the policy that an " 'insane person, whether 

plaintiff or defendant, cannot appear in these judicial 

proceedings alone and unprotected; he must sue or defend by 

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guardian, guardian ad litem, or committee.' " 161 Va. at 775, 

172 S.E. at 250. 

In 1950, the General Assembly enacted Code § 37-149, the 

predecessor to Code § 37.1-141, directing that actions or 

suits to which a ward is a party "shall" be prosecuted or 

defended by the fiduciary once one has qualified. By this 

statute, the General Assembly adopted the established rule 

recognized in Bird's Committee, Cole's Committee, and Counts. 

That rule was not permissive; it was mandatory. 

 The conclusion that Code § 37.1-141 is mandatory also 

finds support when that section is contrasted with Code 

§ 37.1-139 and its predecessors. Well before the enactment of 

Code § 37.1-141, the predecessors of Code § 37.1-139 stated 

that a fiduciary "may sue and be sued" with respect to claims 

for or against the ward. See Code 1950, § 37-147; Code 1919, 

§ 1054; Code 1887, § 1702; Code 1849, tit. 24, ch. 85 § 45. 

By using the word "shall" rather than "may" in the new 

statute, the General Assembly distinguished the new section 

from the long-standing provisions recited in current Code 

§ 37.1-139 as well as enacting into statute the mandatory 

common law rule adopted in Bird's Committee, Cole's Committee, 

and Counts.

Cook advances a number of arguments in support of her 

position that a suit which does not comply with the provisions 

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of Code § 37.1-141 is nevertheless valid. First, she argues 

that the difference between a declaration of incapacity and of 

incompetency is a "major and material" difference which 

requires a different outcome in this case. We agree that 

incapacity and incompetency represent different disabilities, 

but that difference is not material for the purposes of this 

suit. The statute at issue in this case does not distinguish 

between the types of disabilities, but applies when any 

fiduciary has been appointed for a ward, regardless of the 

particular disability suffered by the ward. Therefore, 

whether the disability is incompetency or incapacity, the 

issue remains the same if a fiduciary has been appointed. 

Cook next argues that the policy underlying Code § 8.01-9 

requires that she be granted leave to amend her petition in 

this case. Code § 8.01-9 requires the appointment of a 

guardian ad litem for a person under a disability who is named 

as a defendant in a suit unless the person under a disability 

is represented by counsel. Code § 8.01-9 further provides 

that it is the duty of the court to "see that the interest of 

[such] defendant is so represented and protected." Cook 

posits that this section recognizes that a suit filed against 

a person with disabilities rather than against the guardian is 

valid and curative amendments can be made if necessary. Based 

on this premise, Cook reasons that the converse must also be 

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true; that is, a suit filed by a person under a disability is 

also valid and subject to curative action if needed to protect 

and represent the interest of such person. We disagree. 

Code § 8.01-9 is inapposite to the issue in this case. 

That section is a general law applying to all persons under a 

disability, which includes minors, alcoholics, drug addicts, 

incarcerated felons, as well as incapacitated persons. The 

statute 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. One who institutes 

litigation is in a posture completely different than one 

against whom suit is filed. The filing of a lawsuit is an 

affirmative act on the part of a plaintiff and does not carry 

with it the need for the type of court-initiated protection 

which may exist when a person with a disability is required to 

defend himself in litigation that he did not instigate, 

particularly if such person does not have a fiduciary. The 

provisions of Code § 8.01-9 do not provide any basis for 

concluding that a suit by a person under a disability who has 

a duly appointed fiduciary is valid. 

Finally, Cook cites a number of cases decided by this 

Court as examples of valid litigation filed by a person under 

a disability, all of which are distinguishable. None of the 

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cases construes Code § 37.1-141 and in no case had a fiduciary 

been appointed for the person under a disability. 

Dunn v. Terry, 216 Va. 234, 217 S.E.2d 849 (1975), 

involved the application of former Code §§ 53-305 and -307.3 

Former Code § 53-305 provided for the appointment of a 

committee for a convict. Former Code § 53-307 provided that 

all actions or suits to which a convict was a party "shall be 

prosecuted or defended" by "such committee," language which is 

very similar to Code § 37.1-141 at issue here. 

 Dunn, a convict, sought to quash a garnishment summons 

issued in connection with civil litigation which began prior 

to his incarceration. No committee had been appointed for 

Dunn and he proceeded in his own name. The Court in Dunn

concluded that the appointment of a committee was neither 

automatic nor required because former Code § 53-305 provided 

that such appointment was made upon the "motion of any 

interested party." As an interested party, the convict had 

the ability to seek appointment of a committee. Conversely, 

the Court in Dunn concluded, the convict could waive the 

appointment of a committee by failing to make such a motion. 

As no such motion was made by Dunn or any other interested 

party, there was no "such committee" for purposes of former 

Code § 53-307, and, therefore, the provisions of that section 

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requiring "such committee" to prosecute or defend actions 

involving a convict were inapplicable. Thus, the Court in 

Dunn did not need to consider whether the use of the phrase 

"shall prosecute or defend" as used in former Code § 53-307 

was mandatory or permissive. See also Cross v. Sundin, 222 

Va. 37, 278 S.E.2d 805 (1981). The rationale of Dunn, which 

resulted in allowing a convict to maintain an action in his 

own name rather than by his committee, is not applicable here 

because of the statutory provision allowing waiver of a 

committee in that case and the material factual difference 

between the cases, that is, the absence of a previously 

appointed fiduciary in Dunn and the presence of one in the 

instant case. 

 Cook's reliance on Riddle v. Barksdale, 194 Va. 766, 75 

S.E.2d 507 (1953), for the proposition that a minor's suit is 

valid even though he did not sue by next friend is also 

misplaced. In Riddle, a judgment in favor of a minor for 

personal injuries was sustained even though the minor did not 

sue by next friend because former Code § 8-487 provided that 

no judgment should be "arrested or reversed" so long as the 

minor appeared by an attorney and the judgment was in favor of 

the minor and not to his prejudice. 194 Va. at 770, 75 S.E.2d 

at 510. 

 3

 Now codified as Code §§ 53.1-221 and –222. 

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 Finally, Cook refers to two cases involving the ability 

of a person under a disability to engage in actions with legal 

significance such as executing a will or deed; Gilmer v. 

Brown, 186 Va. 630, 44 S.E.2d 16 (1947), and Waddy v. Grimes, 

154 Va. 615, 153 S.E. 807 (1930). The only act of legal 

significance at issue in this case is the ability to file a 

law suit. Whether Cook could execute a will or a deed while 

the guardianship remains effective is not relevant to the 

issue before us, and therefore these cases are inapposite. 

 For the reasons stated above, we conclude that if a 

fiduciary has been appointed for a ward, Code § 37.1-141 

requires that the fiduciary prosecute any suit to which the 

ward is a party. In the absence of an exception, the ward 

does not have standing to sue in his or her own name. 

 Based on this construction of Code § 37.1-141, the trial 

court correctly refused to allow amendment of the pleadings to 

add or substitute Cook's guardian as the plaintiff. Neither 

Rule 1:8, relating to liberal leave to amend pleadings, nor 

Code § 8.01-5, relating to misjoinder and nonjoinder of 

parties, are applicable here. With regard to Rule 1:8, we 

stated in The Chesapeake House on the Bay, Inc. v. Virginia 

Nat'l Bank, 231 Va. 440, 442-43, 344 S.E.2d 913, 915 (1986): 

[T]he foregoing rule [Rule 1:8] has always been 

subject to the limitation that a new plaintiff 

may not be substituted for an original plaintiff 

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who lacked standing to bring the suit. Statutes 

relating to misjoinder and nonjoinder are not 

applicable in such situations, and the sole 

remedy is a nonsuit followed by a new action 

brought in the name of a proper plaintiff. 

As in Chesapeake House, the guardian here cannot be 

substituted for Cook because Cook did not have standing to 

bring the suit. 

 Likewise Code § 8.01-6 is not applicable here. That 

statute permits amendment and relation back if the pleadings 

contain a misnomer. A misnomer "arises when the right person 

is incorrectly named, not where the wrong [person] is named." 

Swann v. Marks, 252 Va. 181, 184, 476 S.E.2d 170, 172 (1996). 

In this case the "right person" was Cook's guardian. The 

"right person" was not incorrectly named; the "wrong person," 

Cook, was named. 

 For the reasons stated, we will affirm the judgment of the 

trial court. 

Affirmed.

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