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Once a month we seem to receive inquires from individuals trying to file bankruptcy on behalf of someone else. Generally, the largest group of people trying to do this is with a power of attorney. This article addresses when you may be able to file bankruptcy on behalf of someone else.
This article only reflects the legal trends of the Eastern District of Virginia. The advice of this blog should not be applied to other bankruptcy districts. In the Eastern District, it is outright prohibited for someone to file a bankruptcy as a power of attorney. This holding comes from a case in 1990 entitled In Re Smith. Accordingly, the definitive answer to whether someone can file with a power of attorney for someone else is NO. This then shifts to what you can do. The very best way to file bankruptcy on behalf of someone else is to file a petition in the Circuit Court to become a guardian and conservator. If you have done this, then filing a bankruptcy for someone else is quite easy and routine. However, getting appointed as a guardian and conservator is time consuming and quite expensive. Usually people who are applying for this type of appointment are doing so for an individual not in need of bankruptcy protection. The second way to file bankruptcy for someone else is by next of friend. In order to be someone's next of friend, the individual that needs bankruptcy must medically be incompetent or an infant (under 18). An infant is easy to prove, as all you have to do is allege the age of the child. Incompetence is determined only by a qualified and licensed physician. So if you have someone who is incompetent, you need to have an opinion letter from a doctor declaring the individual medically incompetent. If you have such a letter, you will likely be able to file as a next of friend bankruptcy on behalf of an incompetent debtor. If you file as a next of friend, you are required to truthfully and faithfully perform the duties that a debtor would have to perform. Presenting the court with a full financial disclosure of the debtors income, expenses, assets, debts and financial affairs is required. If you are not able to provide this information to the Court the case will not move very far. Additionally, after filing a guardian will have to be appointed by the Court. Have someone (maybe yourself) that is willing and able to serve in this capacity before filing. So before you file, make sure you can follow through. Also, make sure you have done everything possible prior to filing bankruptcy to avoid putting someone in bankruptcy. Should the debtor regain competency he/she may be quite unhappy to learn you filed a bankruptcy in their name. Use the bankruptcy court as a last resort and exercise as much dilligence to take a different approach before you file. If my office can assist you in any way in filing bankruptcy for yourself or someone you know, please feel free to contact me.
Timothy Anderson 757-301-3636