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Threshold requirements for using "next friend" under FRBP 1004.1
I did one case with next friend last year as well if anyone is looking for
an exemplar.
Desiree Causey, Esq.
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Mark,
I've done two next friend petitions. The next friend on one case was the
spouse. In the second case, it was the niece with whom the debtor was
living. In the second case, I knew the debtor professionally (former CPA).
I found one case from Oregon which I cited in my motions.
The best guidance would be to review my two cases and see how I did it.
The case numbers: 1:13-bk-14390-MT and 2:13-bk-29471-TD
Gerry
Gerald McNally
McNally & Associates, P.C.
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Glendale, CA 91206
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Mark,
Thats a question those of us who also do probate and trust work often face. Probate code 810-813 covers legal capacity. Look at 812. I believe the determination is very subjective; and can vary from day to day. There are levels of mental capacity, the capacity to marry is the lowest, then testamentary, at the top is the capacity to contract. Next friend is a federal rule, not a California probate law that I am aware of. The power of attorney should work, if the person had the necessary mental capacity when they signed it. I have gotten court approval on a trust made by the agent under power of attorney.
For trust clients, I tell them to bring me a Doctors letter stating that the client/patient has been examine for cognitive ability and are considered capable to contract, or not. Of course, if capable you dont need a next friend; if not how do you enter into a retainer with someone who is not capable of contracting? I have not done a best friend bankruptcy, and I dont see how it could work if the client has cognitive issues. Now if a client had a stroke after filing and pre 341; next friend could carry on.
Pat, and others may have different views.
Best regards
Larry Webb
California Board of Legal Specialization
Certified Specialist in Bankruptcy Law
State Bar of California 229344
Central District California
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