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
Answered
  • 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.
PREMIUM
Answered
  • 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 M. Nolan
Lloyd M. Nolan
PREMIUM
Answered
  • Bankruptcy 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.

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