Discretionary appointment – Convicts, minors, or incompetent persons
West Virginia has a provision that requires a court to “appoint a discreet and competent attorney at law as guardian ad litem for an infant, incompetent person, or convict not otherwise represented in an action, or shall make such other order as it deems proper for the protection of the infant, incompetent person, or convict.” W. Va. R. Civ. P. Rule 17(c). In Quesinberry v. Quesinberry, 443 S.E.2d 222, 224 (W. Va. 1994), the court noted that the trial court is not obligated to appoint a guardian ad litem if it can determine another way to protect the rights of the convict, such as continue the action until the prisoner is released.
As to whether Rule 17(c) applies when the convict is the plaintiff rather than the defendant, the court has said that “[i]n the case of a prisoner bringing his own suit, it is possible to conclude that he has elected to waive the use of a committee, next friend, or guardian.” Craigo v. Marshall, 331 S.E.2d 510, 514 (W. Va. 1985).
