Philadelphia, PA asked in Bankruptcy, Estate Planning, Banking and International Law for New Jersey

Q: If Im poa on my Dad's account, that can't be affected by my bankruptcy? Also can I open a new account with us both on?

My father is moving to a new country next week and I am newly appointed durable power of attorney over his financial accounts.... If I file bankruptcy that shouldn't effect his banks accounts correct? Also I was thinking of opening a new checking account with my father and myself as joint owners and leaving a few hundred dollars in it. If I did open a new joint account with my dad besides the money in that account the money in his other accounts wouldn't be affected correct? The reason I want to do this is because after next week I'm not sure when I will see my father again. I am also listed as beneficiary on his accounts. If he passes in a diffrent country, will I have a way to obtain a death certificate afterwards assuming I have no other connections in that country.

3 Lawyer Answers
Leonard R. Boyer
Leonard R. Boyer pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Immigration Law Lawyer
  • Clifton, NJ
  • Licensed in New Jersey

A: Do not open any bank accounts until after your bankruptcy is discharged. Do not look for problems. You also need to be represented by an experienced Bankruptcy attorney. What you do not know can cause you all sorts of problems. You really need to leave things alone. Even with the Pandemic, if you file a Chapter 7 Bankruptcy, then it will take 4 to 6 months start to finish. Then you will not invite the Trustee's scrutiny.

W. J. Winterstein Jr.
W. J. Winterstein Jr.
  • Bankruptcy Lawyer
  • Boyertown, PA

A: When you file for bankruptcy relief, the Bankruptcy Code provides that all of your property is included in the new bankruptcy "estate", and the Code's definition of "property" is very broad, and reaches contract rights, and powers, that you may have at the time of filing.

Most current Power of Attorney forms in use, or prescribed by state statutes, include express provisions that that appointed "attorney-in-fact", i.e., the one holding the POA, must avoid all self-dealing, and only use the POA for the benefit of the one granting the Power, i.e., once appointed, you could not divert your dad's assets to your own personal use, and you would be prohibited from commingling his money with your own.

A bankruptcy trustee accedes only to those property rights and interests which you own. In other words, the trustee could not exercise your powers under the POA to bring your dad's cash/assets into your bankruptcy estate. (Not saying a trustee may not try to do so, however).

I cannot render an opinion about what passes for proof of death in other countries, much less how you might go about obtaining such proof. However, if your POA says it is a "durable" power of attorney, then your dad's possible death, overseas, should not terminate the effectiveness of your POA within the US.

Lloyd  Nolan
Lloyd Nolan
  • Estate Planning Lawyer
  • Chesterfield, MO

A: It's very hard to address your question because I think it is a poor choice for your father to name you as attorney-in-fact under his Durable Power of Attorney when you are in a position that you are considering bankruptcy. Is there no other responsible person that he could name for this position? Think about it. Who would want a person in a dire financial situation to have control over all of their assets? Beyond this, you seem to be contemplating his death. The bankruptcy code makes property received within 180 days of filing your case which you receive by inheritance of on the account of someone's death property of the bankruptcy estate. In other words, you would lose any accounts that you received as a beneficiary on your father's passing within that filing timeframe.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.