Even the sick and mentally impaired must filed bankruptcy sometimes. Being without legal capacity does not prevent a debtor from obtaining bankruptcy relief, but it does create challenges not present in cases where the debtor isn’t impaired. According to The Bankruptcy Code, “incapacity” means a debtor is “impaired by reason of mental illness or mental deficiency so that he is incapable of realizing and making rational decisions with respect to financial responsibilities.” 11 U.S.C. § 109(h)(4). When a debtor is incapacitated, they are unable to provide the information needed to prepare and sign the bankruptcy documents. Someone with knowledge of the debtor’s financial situation, who has power of attorney to sign the bankruptcy petition on the debtor’s behalf, must participate in the process.
The incapacitated debtor is unable to take the pre-filing credit counseling course. So a motion requesting that the debtor be excused from the credit counseling requirement must be filed with the court. Documentation must be filed with the motion which supports the assertion that the debtor is incapacitated. A doctor’s letter with supporting affidavit is usually adequate proof. The debtor will not be able to testify at their 341 meeting of creditors, so a motion requesting that the debtor be excused from attending the 341 meeting is necessary. This motion should state that the person who signed the document on the debtor’s behalf and has knowledge of the debtor’s financial situation and power of attorney to act on their behalf will testify. The incapacitated debtor will not be able to take the financial management course either, which is required for a discharge. A motion requesting that the debtor be excused from this requirement must also be filed. This motion will be very similar to the motion filed for the credit counseling course requirement and will likely contain the same supporting documents.