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Filing on Debtor’s Behalf by a Court-Appointed Representative, Holder of Power of Attorney, or Proposed Guardian Ad Litem

Local Rule Number: 
Rule 1004.1-1
1000 Series

(A)     Filing of a Petition by a Court-Appointed Representative.  Appointment Instrument Required.  If a bankruptcy petition is filed on a debtor’s behalf by a representative, such as a guardian, conservator, or like fiduciary, appointed by a court of competent jurisdiction before the filing of the petition, a copy of the appointment instrument shall be filed with the petition.  

(B)     Filing of a Petition by the Holder of a Power of Attorney or Next Friend.

(1)     Power of Attorney and Declaration Required. A petition filed by the holder of a power of attorney or next friend (the “Filing Party”) under Bankruptcy Rule 1004.1 must be accompanied by a copy of the power of attorney, if any, and the Filing Party’s declaration under penalty of perjury (“Declaration”). The Filing Party shall serve a copy of the petition and the Declaration on the debtor, any other party required to be served by the instrument which authorized the Filing Party to file the petition, all creditors, the U.S. Trustee, any governmental entity from which the debtor is receiving funds, and the debtor’s closest relative, if known.  The Declaration and any attachments must be filed as non-public “restricted documents.”

(2)     Contents of Declaration. The Declaration must include the following information:

(a)     the Filing Party’s name, address, and relationship to the debtor;

(b)     whether a representative was appointed for the debtor under nonbankruptcy law before the petition was filed;

(c)     if applicable, whether the power of attorney expressly authorizes the filing of a bankruptcy petition, and whether the debtor was a minor or has been adjudicated an incompetent person prior to the date of the power of attorney;

(d)     whether the debtor consents to the filing of the petition;

(e)     the reason for filing the bankruptcy petition;

(f)     if applicable, why the debtor is unable to file the petition himself or herself or otherwise unable to manage his or her financial affairs;

(g)    whether any of the debtor’s debts were incurred for the benefit of the Filing Party; and

(h)    the names and addresses of any persons known to the Filing Party who may object to the filing of the petition on debtor’s behalf.

(C)     Appointment as Guardian Ad Litem

(1)     Motion Required.  Any person who seeks appointment as the debtor’s guardian ad litem in a bankruptcy case must file a motion seeking such appointment, accompanied by a proposed order and the Declaration required by subsection (C)(2), below. 

(2)     Required Disclosures and Documents.

(a)     Any person seeking appointment as the debtor’s guardian ad litem in a bankruptcy case, must file a Declaration providing the following information:

(i)     why appointment of the movant as guardian ad litem is necessary;

(ii)     why appointment of the movant as guardian ad litem would be in the debtor’s best interest;

(iii)     the fee, if any, the movant would charge the debtor for serving as guardian ad litem;

(iv)     the movant’s professional and criminal history, if any;

(v)     the movant’s competence to handle the debtor’s financial affairs, including the movant’s knowledge of the debtor’s financial affairs;

(vi)     whether the movant has any current or potential future interest in the debtor’s financial affairs, other than the proposed fee; and

(vii)    the names and addresses of any persons known to the movant who may object to the appointment of the movant.

(b)     If appointment as the debtor’s guardian ad litem in the bankruptcy case on behalf of an incompetent person, the Declaration must be accompanied by the following documents:

(i)     a letter from the debtor’s physician regarding the debtor’s ability to conduct the debtor’s own financial affairs; and

(ii)    a copy of any power of attorney or other document giving the movant the authority to act for the debtor.

(c)     Any motion seeking appointment as the debtor’s guardian ad litem in a bankruptcy case filed pursuant to subsection (C)(2)(a) of this rule will be set for hearing within 14 days of filing.

(3)     Authority to Act for Debtor Pending Appointment of Guardian Ad Litem.  Until entry of an order appointing the movant as the debtor’s guardian ad litem in the bankruptcy case, unless the court orders otherwise the movant shall take no further action in the bankruptcy case on the debtor’s behalf, other than seeking an extension of time with respect to any required action of or filing by the debtor.

☞ 2020 Amendment: Local Rule 1004.1-1 establishes procedures for the filing of voluntary petitions by court-appointed representatives, holders of powers of attorney, or proposed guardians ad litem. This rule – modeled after Middle District of Florida Bankruptcy Court Local Rule 1002-1 – specifies the information and documents that must be filed in support of a motion or in response to an order to show cause. In all cases, the Court will schedule a status conference to consider the filing party’s authority to file the case on the debtor’s behalf and the dismissal of the case if the listed requirements are not met).