Can a minor or incompetent person file for bankruptcy? What about elderly parents for whom you might have a power of attorney?

First, both minors and incompetent persons may file for bankruptcy protection through a guardian or conservator. If the minor or incompetent person doesn't have such a legal representative, it is possible to file through a "next friend" or guardian ad litem.

A close family member (the "next friend"), could sign the bankruptcy Petition, and even appear at the 341 meeting with the debtor.

On the other hand, just because someone holds a power of attorney does not mean that he or she can sign papers for a debtor. The only circumstances in which that is acceptable is if the debtor is in the armed forces overseas or the debtor is truly incapacitated.

If you have questions about whether you can sign bankruptcy papers for a family member or friend, please contact an attorney. Even when that person is incompetent or one has a power of attorney, the legal issues involved are complex.


Petition and other Documents:

Each debtor is required to personally sign the petition, schedules or other documents.

A debtor who is mentally competent and physically able to sign the petition and other documents must personally sign the petition, schedules and other documents.

If a debtor is mentally incompetent, the petition should be signed by any legal representative who has been appointed for the debtor (i.e. legal guardian, committee, conservator or similar fiduciary). If the mentally incompetent debtor has no such legal representative, the petition may be signed by next friend (i.e. spouse, family member) or  guardian ad litem. See Bankruptcy Rule 1004.1. If a petition is signed by a legal

representative or by a next friend pursuant to a durable power of attorney, the order appointing the legal representative or the POA should be attached to the petition.

If debtor is mentally competent but unable to sign the documents because of physical disability or military service, an attorney-in-fact may sign the petition for the debtor pursuant to a valid POA.

In either event, the POA must specifically authorize filing bankruptcy or the powers are broad enough to include filing bankruptcy (i.e. powers regarding general financial affairs or litigation). The POA must be attached to the petition.

If the debtor is unable to appear at the meeting of creditors, the legal representative or next friend signing the petition should then (1) appear at the meeting of creditors, (2) demonstrate the authority of the person signing the petition for the debtor, (3) provide documentation of the incompetence, disability, or military service of the debtor, and (4) demonstrate personal knowledge of the debtor’s financial affairs.

341 Meeting of Creditors 

The Code (Section 343) requires that every debtor appear and be examined under oath at a meeting of creditors. The Code provides no exceptions to this requirement.

If a debtor is unable to appear by video or telephone, because of physical or mental disability or military service, the debtor’s appearance may be excused. In such  cases, the legal representative or next friend (i.e. spouse, family member) must (1) appear at the meeting of creditors, (2) demonstrate the authority of the person appearing for the  debtor; (3) provide documentation of the incompetence, disability, or military service of the debtor, (4) demonstrate that the debtor is unable to appear or testify by any means; and (5) demonstrate personal knowledge of the debtor’s financial affairs.

If debtor is unable to appear by video or telephone, because of incarceration, debtor should contact the trustee or UST prior to the meeting and the matter will be handled on a case-by-case basis.

See, Rule 1004.1. Petition for an Infant or Incompetent Person

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.