Absolutely. The Bankruptcy Co
de expressly contemplates that incapacitated individuals can be bankruptcy debtors and subsequent Court decisions concur. Under Section 301 of the Bankruptcy Code, a voluntary bankruptcy case may only be commenced when an individual who may be a debtor files a bankruptcy petition. In turn, Bankruptcy Code Section 109 states who may be a debtor yet contains no restrictions against incapacitated or disabled debtors.
What the Bankruptcy Code and Federal Rules of Bankruptcy Procedure are limited on is who has the authority to file a bankruptcy petition on behalf of a debtor who lacks capacity. Under FRBP1004.1, “if an infant or incompetent person has a representative, including a general guardian, committee, conservator, or similar fiduciary, the representative may file a bankruptcy petition on behalf of the infant or incompetent person.” Rule 1004.1 also provides that if an infant or incompetent person does not have a duly appointed representative, the person 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 who shall make any other order to protect the infant or incompetent debtor.”
In these cases, it is imperative that counsel for the debtor file appropriate documentation with the court establishing the representative’s authority to file the petition. However, if no representative exists, the parties should follow Rule 1004.1 and seek an immediate court order appointing a guardian or next friend.
Should you need assistance with filing a Chapter 7 or Chapter 13 bankruptcy in the Eastern District of Virginia, please contact our firm today at (804) 423-1382.
