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I have a power of attorney for [insert here]. Can I file a case for him/her?

Bankruptcy Rule 1004.1 permits a fiduciary to file a bankruptcy case on behalf of a minor or someone who is incapacitated. Here is the rule:

“If an infant or incompetent person has a representative, including a general guardian, committee, conservator, or similar fiduciary, the representative may file a voluntary petition on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may file a voluntary petition by next friend or guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person who is a debtor and is not otherwise represented or shall make any other order to protect the infant or incompetent debtor.”

 

Although not specifically mentioned, the courts have held that an attorney-in-fact (the name given to the holder of a power of attorney) with the express authority for their principal’s financial affairs and to file or defend legal proceedings may file for a minor or one who is mentally incapacitated (incompetent).

The attorney-in-fact may also appear and testify on the minor or incompetent’s behalf in the bankruptcy case.

 

 

 

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