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UNITED STATES BANKRUPTCY COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

_________________________________ 

) 

IN RE: CYRIL MICHAEL RICKWALDER ) Case No. 16-10289 

) 

Debtor. ) Chapter 7 

________________________________ ) 

DEBTOR’S MOTION TO APPOINT LIMITED GUARDIAN 

OR “NEXT FRIEND”

The Debtor, Cyril M. Rickwalder, by counsel, files this, pursuant to Rule 1004.1, 

his Motion to Appoint Limited Guardian as Litem or “Next Friend” and in support 

thereof, states as follows: 

1. This case, filed on January 28, 2016, is a case under chapter 7 of the Bankruptcy 

Code.

2. The Debtor, Mr. Rickwalder, is impaired by reason of mental illness or mental 

deficiency so that he is incapable of realizing and making rational decisions with respect 

to his financial responsibilities. 

3. Mr. Rickwalder has been diagnosed with Alzheimer degenerative dementia with 

delirium dementia and has become incompetent. A copy of the diagnosis is attached as 

Exhibit 1. 

4. The petition was signed by Janay Rickwalder, who was acting under Durable 

Power of Attorney given to her by Cyril Rickwalder on April 17, 2015. A copy of the 

Durable Power of Attorney was filed at the same time as the petition [doc. 3]. 

Argument 

 Rule 1004.1 of the Federal Rules of Bankruptcy Procedure (“FRBP”) 

provides that “the court shall appoint a guardian ad litem for an infant or incompetent 

person who is a debtor and is not otherwise represented or shall make any other order 

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to protect the infant or incompetent debtor.” In re Whitehead, 2005 Bankr. LEXIS 1467 

(4th Cir July 22, 2005)(citing FRBP 1004.1). 

 In Whitehead, The Fourth Circuit decided that, much like Fed. R. Civ. P. 17(c), 

the Bankruptcy Court must look to state law to determine ‘incapacity.” The Fourth 

Circuit concluded that the Debtor was incompetent and that was is in the best interest of 

the Debtor to appoint a guardian ad litem for the limited purposes of making decisions 

for the Debtor in the administration of her bankruptcy proceeding and to execute the 

appropriate documents on behalf of the Debtor to effect the sale of certain property by 

the Trustee. 

 Va. Code §64.2-2000 defines ‘Incapacitated Person” as an adult who has been 

found by a court “to be incapable of receiving and evaluating information effectively or 

responding to people, events, or environments to such an extent that the individual 

lacks the capacity to . . .(ii) manage property or financial affairs or provide for his 

support . . . without the assistance or protection of a conservator.” Id.

 Mr. Rickwalder’s Alzheimer’s and Dementia have advanced to the point that, 

though he had been living with Ms. Janay Rickwalder’s family, that they were no longer 

able to care for him and he was moved to an assisted living facility. The doctor’s at the 

assisted living facility have recommended he be moved to their memory care wing, 

which will occur at such time a room opens. He is unable to manage property, 

financial affairs, or provide for his support with the assistance of a conservator. 

Judge St. John encountered the same issue recently in In re Williams, Case No. 

15-72070. In that case, Judge St. John granted the Debtor’s request to appoint a 

representative without issuing a memorandum opinion. Judge St. John’s Order is 

attached as Exhibit 2. 

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 It is in the best interest of the debtor that Ms. Janay Rickwalder, who already 

holds Durable Power of Attorney on behalf of the Debtor, be appointed by this Court as 

Guardian ad Litem for the limited purpose of making decisions for the Debtor in the 

administration of his bankruptcy proceeding and execute the appropriate documents on 

behalf of Mr. Rickwalder. 

WHEREFORE, in the interests of justice and convenience of the debtor, Mr. Cyril 

Rickwalder, through counsel, respectfully requests that the Court appoint Janay 

Rickwalder as limited guardian ad litem or “next friend” nunc pro tunc, in order to 

protect the interest of the Debtors, advance the goals of the Bankruptcy Code and 

promote judicial economy and efficiency. 

Date: January 29, 2016 Respectfully submitted, 

SUROVELL, ISAACS, PETERSEN, & LEVY 

PLC 

__/s/ Nathan D. Baney___________ 

Nathan D. Baney, Esq. (V.S.B. No. 75935) 

4010 University Ave., 2nd Floor 

Fairfax, Virginia 22030 

Direct: (703) 277-9768 

nbaney@siplfirm.com

 

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CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that on this, 29th day of January, 2016 that a true copy of the 

foregoing has been served via the Court’s CM/ECF system on all parties receiving notice 

thereunder including the following: 

United States Trustee, Region 4 

115 South Union Street, Suite 210 

Alexandria, Virginia 22314 

Kevin McCarthy 

Chapter 7 Trustee 

McCarthy & White, PLLC 

1751 Pinnacle Drive, Suite 1115 

McLean, VA 22102 

 ___/s/ Nathan D. Baney 

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