Can I Use a Power of Attorney to File a Bankruptcy?

13 Sep Can I Use a Power of Attorney to File a Bankruptcy?

There are situations in which an attorney in fact (the person who holds the power of attorney) can file a bankruptcy on behalf of an individual, or attend to certain of the duties of a debtor in bankruptcy.  Usually there must be a serious or significant reason for doing so–the individual is hospitalized, or otherwise physically unable to attend to such matters, such as active duty military stationed overseas, or is subject to a mental or psychological disability.  Generally, matters of convenience, i.e., the debtor does not want to take time off work, or would have to travel, are not sufficient.

The South Carolina bankruptcy courts have recently begun requiring a motion seeking court approval of proceeding by power of attorney.  The court seems concerned with ensuring that those appearing through attorneys in fact have, in fact, sought bankruptcy relief.  Questions have been raised in cases where I would once have taken for granted that proceeding with a power of attorney was acceptable.

If you need to file for bankruptcy relief and wish to do so through an attorney in fact, discuss the matter with your attorney to determine what the procedure will be, and the potential problems with that procedure.  If you hold someone’s power of attorney, and wish to use if to file a bankruptcy, you must not only be prepared to give the matter your time and attention, but be sufficiently familiar with the debtor’s financial affairs to answer questions about those affairs, as well as to explain the necessity of proceeding in that manner.

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Däna (pronounced "Donna") Wilkinson, has been a bankruptcy lawyer in South Carolina for 20 years. She is certified as a bankruptcy specialist by the South Carolina Supreme Court.
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