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John Legal
John Legal, Attorney
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My wifes deceased mothers estate and my wife are being sued

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My wife's deceased mother's estate and my wife are being sued by a home care nurse company in small claims court in Palm Beach County. This case involved using a Home Health Care policy where the policy pays at $120/day for non-professional care and $180/day for professional care. I am the agent who wrote the policy and know how the policy is to work. The company is using a debt collection attorney and has already filed a law suite to collect the debt.

Under the terms of the policy my wife would have an aide ie non-professional care for her mother for 8 hours per day ie 15*8= $120/day. The home care company representative told my wife that she could probably get the insurance company to pay at the higher level of $180/day and would then be able to have the aide for 12 hours/day.

She called back several days later saying to my wife that the insurance carrier agreed to the $180/day level. Based on that, my wife agreed to bump up the hours to 12 hours/day. Three months later my mother-in-law passed away.

The home care agency said that the insurance company did not pay at the $180 and that my wife and her mother's estate owes over $4000. As the agent, I called the insurance carrier to find out what had happened. I was stunned to learn that the carrier never approved the higher daily amount and they put it in writing. Furthermore, the home care agency sent in the bills coded for non-professional care and the insurance carrier paid at the $120 level. From what I can tell at this point I believe this is a case of fraud in the inducement, unjust enrichment, detrimental reliance and fraud. I also have a though understanding of the policy.

Since this is small claims court, we do not want to use an attorney. It would cost more than the claim and even if we win, we would still have to pay the attorney's fees. I understand the case thoroughly. My question is under Civil Procedure am I allowed to speak on behalf of my wife with her permission? Do we need to get approval from the judge before we go to court or do we ask when we get to court. Thank you for any information you can provide or any suggestions.

Welcome! Thank you for your question.

I can tell that you fully understand the issues here and would be a terrific advocate for your wife and her mother's estate. Your final question relates to whether you will be able to speak on behalf of your wife and the estate. The issue that you are stating is really whether this would be considered as the practice of law without a license.

Anyone who is not a licensed attorney in Florida who offers legal advice, prepares or files legal documents, represents a client in court,presents himself as an attorney when he is not or offers a legal opinion is practicing without a license, and is subject to criminal prosecution. You filing documents or speaking on behalf of your wife is unfortunately the unlicensed practice of law.

"Generally speaking, a nonlawyer may not represent another in court. An out-of-state attorney who wishes to represent some

one in a Florida court must seek permission to appear pro hac vice

in order to do so." Rule 2.510 Fla.R.Jud.Admin. The Florida Bar v. Moses, 380 So. 2d 412 (Fla. 1980).

Your wife can certainly represent herself in the small claims proceeding, however. She can call you to testify and you can present the issues related to your experience in your testimony. The small claims judge will likely allow her lots of leeway in her questions and your comments in your testimony.

Another issue that you are going to face is that the small claims judge may also not allow your wife to represent the estate because that could also be considered the practice of law without a license.

"The general rule is that an individual may appear pro se and represent themselves in court. Fla. Stat. § 454.18. This general rule does not apply to probate proceedings or to corporations. In a probate proceeding, unless the individual attempting to appear pro se is the sole interested party in the matter, the individual must be represented by a member of The Florida Bar. Rule 5.030, Probate and Guardianship Rules," Falkner v. Blanton, 297 So. 2d 825 (Fla. 1974).

I cannot provide you with legal advise. I have provided you with information about the law related to your question. My answer, and any information that you find online, should not take the place of having a consultation with a lawyer in your area to advise you regarding your specific issues.


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