UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF VIRGINIA

Richmond Division

In re:

Ebbin Carlton Ballard, Jr. Case No. 16-34012-KLP

 Chapter 7

Debtor

 

MOTION TO APPOINT GUARDIAN AD LITEM

COMES NOW the Debtor, Ebbin Carlton Ballard, Jr., by counsel, pursuant to 11 U.S.C. § 105, 

the Federal Rules of Bankruptcy Procedure 1004.1 and 1016, and Local Rule 9010-1, and he hereby 

requests that this Honorable Court appoint a Guardian ad litem to protect his interests, to attend and 

testify for him at his § 341 meeting of creditors, to make decisions for him, to execute appropriate 

documents, including completing the required Debtor Education class to conclude his case, and to take 

all actions required by him as a debtor until the conclusion of his case. In support thereof, the Debtor

states as follows:

1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334, and this matter 

is a core proceeding under 28 U.S.C. § 157.

2. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409(a).

3. The Debtor commenced this Chapter 7 case with the filing of a voluntary petition on 

August 14, 2016.

4. The Debtor’s voluntary petition was physically signed by his lawful attorney-in-fact, his 

wife, Charlotte H. Ballard (hereinafter “Mrs. Ballard”). On October 19, 2013, the Debtor granted Mrs. 

Ballard a General Power of Attorney which appointed her as Attorney-in-Fact (“Agent”) to “have full 

power and authority to act” on his behalf to “Prepare, sign and file documents with any governmental

body or agency . . .” A copy of the General Power of Attorney is attached hereto as EXHIBIT 1.

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5. The reason for the execution of the Power of Attorney was that the Debtor was diagnosed 

with septicemia, and this condition has rendered him wheelchair bound. There was a prediction that he 

would worsen to the point that he would be unable to make decisions for himself. At this time his 

condition has deteriorated such that he has lost his normal cognitive abilities, and he is no longer able to 

sign documents for himself, or to completely understand his financial affairs. He frequently blurts out 

loud noises at inappropriate times. This was, in fact, the situation on the date of the petition filing. He 

was aware of his filing a bankruptcy case, and by his Power of Attorney he authorized his wife, Mrs. 

Ballard, to do all such acts as would be necessary to represent his interests.

6. After his case was filed, the Debtor’s condition worsened, and he now defecates several 

times a day in his diapers. He is also confined in his wheelchair, and must be lifted by Mrs. Ballard into 

and out of an automobile in order to be transported. She is simply not capable of the task. For this 

reason he will be unable to attend and to otherwise participate in his § 341 meeting that was originally 

scheduled for September 19, 2016 at 11:00 a.m.

7. With the concurrence of the Chapter 7 Trustee and the Office of the United States 

Trustee, the § 341 meeting was continued to October 11, 2016 at 11:00 a.m.

8. The Debtor, by counsel, is requesting that Mrs. Ballard be appointed as Guardian ad litem

for the limited purposes of attendance at the Debtor’s § 341 meeting of creditors, making any necessary 

decisions for him, executing any appropriate documents, to include completing the required Debtor

Education class, all in an effort to conclude his case. The Power of Attorney grants such authority. 

Also, Mrs. Ballard has intimate knowledge of her husband’s finances and of the details of his

bankruptcy petition.

9. Federal Rule of Bankruptcy Procedure 1004.1 provides, in relevant part, that a court 

“shall appoint a guardian ad litem for an infant or incompetent person who is a debtor and is not 

otherwise represented.” It is herein submitted that the relevant definition of incompetence is that taken 

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from Dictionary.com: a “lack of ability”, and “in law”: “the condition of lacking power to act with 

legal effectiveness”. This does not require an adjudication, or evidence above and beyond the simple 

facts, as exist in this case. Also, it is not necessary to prove mental incompetence by an adjudication of 

incompetency. Grapner v. Atl. Land Title Co., 307 S.C. 549, 550-51, 416 S.E.2d 617, 618 (1992) 

(internal citations omitted).

10. Federal Rule of Bankruptcy Procedure 1016 allows the bankruptcy court to proceed as 

though the incompetency had never occurred.

11. The Debtor signed the General Power of Attorney while lucid and obviously able to sign 

it on October 19, 2013. By the time he filed his bankruptcy case on August 14, 2016, his condition had 

deteriorated to the point that the use of his Power of Attorney had become necessary because of his

condition of being unable and therefore incompetent to sign, though he knew the details of the petition 

and the fact that he was filing his bankruptcy case.

12. Now, because he is unable to do anything to assist in his case, it is necessary for the 

efficient administration of this case that this Court appoint a Guardian ad litem to protect the Debtor’s 

interests and to do all such acts as are necessary to conclude his case.

13. The Chapter 7 Trustee, Bruce H. Matson, does not oppose the appointment of a Guardian 

ad litem in this matter.

14. There are two relevant cases that were recently cited in a similar case in the Alexandria 

Division for authority to grant a similar motion to appoint a Guardian ad litem in a bankruptcy case. 

Those cases are In re: Mary Ann Whitehead, No. 05-50136, 2005 WL 1819399 (Bankr. M.D.N.C. July 

22, 2005) and In re Andrew Gilpen Myers, 350 B.R. 760 (Bankr. N.D. Ohio 2006).

WHEREFORE, the Debtor respectfully prays that this Honorable Court appoint his wife, Mrs. 

Ballard, as his Guardian ad litem to appear for him at the adjourned § 341 meeting of creditors and to do 

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all such other acts on behalf of the Debtor as he could or would for himself to conclude his case, and to 

grant such other and further relief as is deemed appropriate.

Dated: September 12, 2016

EBBIN CARLTON BALLARD, JR.

By Counsel

JOHN CARTER MORGAN, JR., PLLC

/s/ John C. Morgan

John C. Morgan, Esq. VSB # 30148

98 Alexandria Pike, Suite 10

Warrenton, VA 20186

(540) 349-3232 (FAX) 349-1278

jcm@jcmpllc.com

Counsel for the Debtor

CERTIFICATE OF SERVICE

I hereby certify that on September 12, 2016, a true copy of the foregoing Motion to Appoint 

Guardian ad litem was mailed, via first class postage paid, or served via the CM/ECF system, to Bruce 

H. Matson, Chapter 7 Trustee and to all necessary creditors or parties in interest who have filed requests 

for such notice, and to all the addresses on the attached mailing matrix.

/s/ John C. Morgan

 John C. Morgan VSB # 30148

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