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Can a husband hire attorney to represent his wife in bankruptcy case if he has a general power of attorney but doesn't mention

San Francisco, CA |

filing bankruptcy? but it mention the right to initiate,defend,commence or settle legal action on her behalf . in this language of P.O.A . can a husband hire attorney to represent his wife in bankruptcy case?

Attorney Answers 3


  1. Best answer

    I agree with the other comments but wanted to add that Bankrutpcy Rule 9010 addresses the idea of one person acting on behalf of another. That rule does not clearly address the extent to which a power of attorney can be used and what the power of attorney should say. I avoid these power of attorney situations like the plague because there is uncertainty. That said, for the few I have done I have never had a problem. If you need a lawyer in SF try John Raymond or Marty Courson.

    Law Office of Michael J. Primus We are a debt relief agency and help people file for bankruptcy under the bankruptcy laws


  2. Whether or not the power of attorney is sufficient will depend on the judge assigned to the case. Some judges require that the power of attorney specify bankruptcy, but many will view the authorization to litigate as sufficient. This is really a question of local practice and you should consult with a local attorney to find out what the judges in your area will require.

    Another factor the judge will consider is the reason that the power of attorney is being used. If the wife is incapacitated due to debilitating illness or dementia, for example, then it is usually not a problem for the husband to represent her interests through a power of attorney.

    Please note that although this answer may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should consult an attorney for individual advice regarding your own situation. Answering this question does not create any attorney-client relationship between you and Kelly Zinser, Shareholder at Olenicoff & Zinser, PC in Irvine, California. For more information on bankruptcy, please see our website.


  3. This is more of an estate planning question than a bankruptcy question. The language you quote is sufficient to give the husband the authority to initiate bankruptcy if it is in the wife's best interest. Remember that the one holding a POA has a higher duty of care called a fiduciary duty to the person granting the power. The next question that comes to mind is when does the power of attorney become effective. Some are effective upon signing and others do not become effective until some contingency occurs such as the person granting the power becoming incapacitated or declared incompetent. That second question needs to be answered also. But, if the power of attorney has become effective and a bankruptcy would be in the best interest of the wife in question then the language in the power is most likely broad enough to allow the husband to initiate and conduct a bankruptcy on behalf of the wife. Meet with an attorney to make sure all the contingencies are met and that bankruptcy is the best procedure for the wife.

    The ideas and opinions expressed in this comment are generalities only and not based upon a thorough analysis of your situation or the law that might apply to you. As such they are intended to be general guidance and not legal advice. Use this information to assist in your analysis as to what you want to ask an attorney when seeking legal advice, Nothing stated herein shall be deemed to create an attorney-client relationship with you nor legal advise for you to use.

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