Do I have to have guardianship to file bankruptcy?

1 answer | Last updated: Jun 21, 2010
Mannix asked...

My husband is now in a nursing facility and I have had to file bankruptcy. I was told I need to have guardianship before any court procedures. I do have power of attorney, is this correct?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

It is possible.

In some states for some matters, courts require a separate power of attorney for bankruptcy matters"”and if a person lacks the capacity to complete that power of attorney, then a guardianship or conservatorship may be required. The answer also depends on the specific wording of the power of attorney appointing you agent to act for your husband.

In some situations, what may be required is a temporary or expedited conservatorship, which you may be able to handle on your own. Do a search of "probate court," along with your city or county to check on local requirements and to see whether the court provides any good help for those navigating the system or filing on their own.

Finally, do not take any such action quickly or lightly. Consider the source"”and whether he or she had access to the document appointing you power of attorney and has the legal knowledge to give this advice.

If you're in doubt, it may be worth your time and money to consult an experienced attorney for 15 minutes or so for an opinion on this very targeted question.