Subero v. Hess Oil Virgin Islands Corp.

Virgin Islands

Subero v. Hess Oil Virgin Islands Corp.

18 V.I. 501, 1981 WL 705554, 1981 U.S. Dist. LEXIS 9335

CourtDistrict Court, Virgin Islands

DecidedJune 3, 1981

DocketCivil No. 1980/273

StatusPublished

This text of 18 V.I. 501 (Subero v. Hess Oil Virgin Islands Corp.) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Subero v. Hess Oil Virgin Islands Corp., 18 V.I. 501, 1981 WL 705554, 1981 U.S. Dist. LEXIS 9335 (vid 1981).

Pincite

Opinion

SILVERLIGHT, Judge, Sitting By Designation

MEMORANDUM

This matter is before the court on the motion of plaintiff’s attorney for the appointment of a guardian ad litem for one of the plaintiffs herein. The motion will be denied.

Plaintiff’s counsel has submitted an affidavit containing hearsay statements alleging that Alexander Subero is presently in poor mental health. Counsel has submitted a draft order proposing the appointment of one Hortense Rowe as guardian ad litem for Mr. Subero. The proposed order would empower Mrs. Rowe to give or [503]*503withhold consent and execute any necessary releases for Mr. Subero. Counsel has submitted Mrs. Rowe’s consent to serve as guardian ad litem. It appears to the court that counsel asks for too much in the way of powers and provides too little in the way of due process.

A guardian ad litem has no power to bind an incompetent to admissions of fact or otherwise surrender rights by stipulation or waiver. The guardian ad litem is merely an officer of the court and any settlement negotiated by him is merely a proposed settlement, pending the court’s independent assessment and approval. See Dacanay v. Mendoza, 573 F.2d 1075 (9th Cir. 1978). The court cannot appoint a guardian ad litem with the unchecked power to settle a case.

The powers sought for Mrs. Rowe are more akin to those of a general guardian for an insane person. Such powers cannot be granted without a hearing to determine whether the person in question is incapable of taking care of himself. 15 V.I.C. § 842. Indeed, even were counsel only seeking the appointment of an unenhanced guardian ad litem, the circumstances before the court still create due process problems. An affidavit consisting of hearsay is hardly the basis for any judicial act, let alone an act which deprives a person of control over his own affairs. When the court appoints a guardian ad litem, it indirectly endorses the appointee as fit for the job. The court cannot make this determination of fitness with only the name and consent of the proposed guardian before it.¹ Finally, when the need for the proposed guardian ad litem is premised on incompetence, due process may require that the person in question be given an opportunity to be heard on the issue of his or her capacity.

Counsel’s motion will be denied.

ORDER

The premises considered and the court being informed,

IT IS ORDERED that the motion for appointment of a guardian ad litem for plaintiff Alexander Subero be, and hereby is, denied.

Free access — add to your briefcase to read the full text and ask questions with AI

SILVERLIGHT, Judge, Sitting By Designation

MEMORANDUM

This matter is before the court on the motion of plaintiff’s attorney for the appointment of a guardian ad litem for one of the plaintiffs herein. The motion will be denied.

Plaintiff’s counsel has submitted an affidavit containing hearsay statements alleging that Alexander Subero is presently in poor mental health. Counsel has submitted a draft order proposing the appointment of one Hortense Rowe as guardian ad litem for Mr. Subero. The proposed order would empower Mrs. Rowe to give or [503]*503withhold consent and execute any necessary releases for Mr. Subero. Counsel has submitted Mrs. Rowe’s consent to serve as guardian ad litem. It appears to the court that counsel asks for too much in the way of powers and provides too little in the way of due process.

A guardian ad litem has no power to bind an incompetent to admissions of fact or otherwise surrender rights by stipulation or waiver. The guardian ad litem is merely an officer of the court and any settlement negotiated by him is merely a proposed settlement, pending the court’s independent assessment and approval. See Dacanay v. Mendoza, 573 F.2d 1075 (9th Cir. 1978). The court cannot appoint a guardian ad litem with the unchecked power to settle a case.

The powers sought for Mrs. Rowe are more akin to those of a general guardian for an insane person. Such powers cannot be granted without a hearing to determine whether the person in question is incapable of taking care of himself. 15 V.I.C. § 842. Indeed, even were counsel only seeking the appointment of an unenhanced guardian ad litem, the circumstances before the court still create due process problems. An affidavit consisting of hearsay is hardly the basis for any judicial act, let alone an act which deprives a person of control over his own affairs. When the court appoints a guardian ad litem, it indirectly endorses the appointee as fit for the job. The court cannot make this determination of fitness with only the name and consent of the proposed guardian before it.¹ Finally, when the need for the proposed guardian ad litem is premised on incompetence, due process may require that the person in question be given an opportunity to be heard on the issue of his or her capacity.

Counsel’s motion will be denied.

ORDER

The premises considered and the court being informed,

IT IS ORDERED that the motion for appointment of a guardian ad litem for plaintiff Alexander Subero be, and hereby is, denied.

Cite This Page — Counsel Stack

Bluebook (online)

18 V.I. 501, 1981 WL 705554, 1981 U.S. Dist. LEXIS 9335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/subero-v-hess-oil-virgin-islands-corp-vid-1981.

Opinion

Related

Cite This Page — Counsel Stack