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Can I file a Bankruptcy for a Family Member or Spouse Under a Power of Attorney?

Serving Families Throughout Mobile

Yes, a Power of Attorney (POA) can file for bankruptcy on behalf of another person, but there are some important considerations and limitations to keep in mind:

Specific Authority: The POA document must explicitly grant the agent (the person with the Power of Attorney) the authority to handle financial and legal matters, including filing for bankruptcy, on behalf of the individual who granted the POA. Not all POAs include such authority, so it's crucial to review the document to ensure it covers bankruptcy filings.

Chapter of Bankruptcy: Depending on the specific situation, the type of bankruptcy being filed (e.g., Chapter 7, Chapter 13, Chapter 11) may require different levels of involvement and approval from the person granting the POA. Chapter 7 and Chapter 13 bankruptcies, which are commonly used for individuals, may have different requirements in this regard.

Bankruptcy Petition: The individual filing for bankruptcy, even if done through a POA, must sign the bankruptcy petition and schedules personally. The POA can assist in preparing and filing the paperwork, but the debtor's signature is generally required.

In the Southern District of Alabama, the individual acting under the Power of Attorney for the Debtor must appear at a Court hearing, preferably with the Debtor, so that the judge can ask followup questions to make sure the Debtor does in fact need assistance of a Power of Attorney. If the Debtor is incapacitated or in prison, this requirement can be dispensed with at the Court's discretion on a case by case basis.

Consultation with an Attorney: Bankruptcy is a complex legal process with significant financial implications. It's advisable to consult with an attorney experienced in bankruptcy law before proceeding. The attorney can provide guidance on the process, evaluate the situation, and ensure all legal requirements are met.

Trust and Communication: There should be a high level of trust between the individual granting the POA and the agent. Effective communication is essential to ensure that the individual's wishes and financial interests are properly represented.

Court Approval: Depending on the jurisdiction, the bankruptcy court may require additional documentation or evidence of the individual's incapacity or need for a POA to act on their behalf. The court will ultimately need to approve the filing. In some instances a legal Guardianship will need to be filed in the Probate Court where the Debtor resides, and an Order obtained which allows the appointed Guardian to file a bankruptcy case.

Limitations: Keep in mind that a POA typically grants authority to make decisions on behalf of the person granting the POA, but it does not absolve the individual of their financial responsibilities or obligations. The person who filed for bankruptcy, even through a POA, may still be required to attend meetings, provide information, and fulfill certain obligations as part of the bankruptcy process.

It's crucial to consult with an attorney who specializes in bankruptcy law to navigate the specific requirements and legal nuances of filing for bankruptcy through a Power of Attorney. The laws and regulations surrounding bankruptcy can vary by jurisdiction, so seeking legal counsel is essential to ensure compliance with local rules and to protect the interests of the individual involved.

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