My attorney-in-fact handling my case while I am unavailable

[johnson668]

What is the name of your state? Florida
I am planning to go to another country for medical treatment, by applying leave to my current job. I lost a civil case in Florida and eligible to claim head of house hold exemption as I am the only person who has a job and income and all other members are depending on me http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0200-0299/0222/Sections/0222.11.html (222.11)

If I execute a durable power of attorney, putting my brother as my attorney-in-fact, and the durable power of attorney has following language “To obtain and pay for legal advice, to initiate or defend legal and administrative proceedings on my behalf, including actions against third parties who refuse, without cause, to honor this instrument” then, can my brother file the completed “CLAIM OF EXEMPTION AND REQUEST FOR HEARING” form https://www.djj.state.fl.us/content/download/24390/file/claim-of-exemption-form.pdf on my behalf, and file with the court and defend on my behalf, if and when the creditor tries to garnish my wages? If so, how/where should my brother indicate (in that claim form) that he is my attorney-in-fact (this is because, that form should be signed by me in the presence of a notary public: but my brother will sign it as my attorney-in-fact)?

 

[adjusterjack]

The only things your brother can do for you is drop your paperwork off at the courthouse and hire/pay an attorney to represent you.

He cannot do any of the other things you mention because he is not a lawyer and those things amount to the practice of law, which is a crime for a non-lawyer to do.

If you expect to get out of paying your debt you'd better be willing and able to handle things personally, the way the laws say you do.

 

[johnson668]

OK, even if I hire an attorney, how to get the “CLAIM OF EXEMPTION AND REQUEST FOR HEARING” form https://www.djj.state.fl.us/content/download/24390/file/claim-of-exemption-form.pdf notarized if I am in other country for medical treatment?

As explained in “Notice to individual defendant for claim of exemption from garnishment; procedure for hearing” http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0077/Sections/0077.041.html (77.041), there are stringent timelines within which I must file my exemption status after notarizing it: “IF YOU HAVE A VALID EXEMPTION, YOU MUST FILE THE FORM WITH THE CLERK’S OFFICE WITHIN 20 DAYS AFTER THE DATE YOU RECEIVE THIS NOTICE OR YOU MAY LOSE IMPORTANT RIGHTS.”


Can my brother get that form notarized on his name (writing along with his name that he is my attorney-in-fact) then the attorney file that?
OR can I get that form notarized in the other country (where I am getting medical treatment) and my attorney files its electronic copy?

 

[quincy]

OK, even if I hire an attorney, how to get the “CLAIM OF EXEMPTION AND REQUEST FOR HEARING” form https://www.djj.state.fl.us/content/download/24390/file/claim-of-exemption-form.pdf notarized if I am in other country for medical treatment?

As explained in “Notice to individual defendant for claim of exemption from garnishment; procedure for hearing” http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0077/Sections/0077.041.html (77.041), there are stringent timelines within which I must file my exemption status after notarizing it: “IF YOU HAVE A VALID EXEMPTION, YOU MUST FILE THE FORM WITH THE CLERK’S OFFICE WITHIN 20 DAYS AFTER THE DATE YOU RECEIVE THIS NOTICE OR YOU MAY LOSE IMPORTANT RIGHTS.”


Can my brother get that form notarized on his name (writing along with his name that he is my attorney-in-fact) then the attorney file that?
OR can I get that form notarized in the other country (where I am getting medical treatment) and my attorney files its electronic copy?

Hire an attorney licensed to practice in Florida prior to leaving the country. The attorney should be able to handle everything for you.

In what country will you be getting medical treatment?

 

[adjusterjack]

And doesn't that country have the internet, computers, printers, express mail?

 

[quincy]

Your brother will not be able to represent you (unless he is an attorney) so I suggest you make arrangements now with an attorney in Florida and the attorney will tell you what s/he will need from you. A lot can be done before your departure. You will want to figure out the best way to communicate with your lawyer while you are out of the country.

 

[johnson668]

Your feedback greatly helped me, and it prevented me from doing some blunders. I understood my mistakes and will not use my brother in any manner. The main problem I am facing now is lack of funds: I and my family are barely surviving with my salary (specifically due to the increased rents and some health issues in my family). Hence, I cannot hire an attorney straight away. Therefore I request you to kindly help me with your advice.

77.041 Notice to individual defendant for claim of exemption from garnishment; procedure for hearing. http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0077/Sections/0077.041.html has the following language



1) Upon application for a writ of garnishment by a plaintiff, if the defendant is an individual, the clerk of the court shall attach to the writ the following “Notice to Defendant”:

NOTICE TO DEFENDANT OF RIGHT AGAINST
GARNISHMENT OF WAGES, MONEY,
AND OTHER PROPERTY

The Writ of Garnishment delivered to you with this Notice means that wages, money, and other property belonging to you have been garnished to pay a court judgment against you. HOWEVER, YOU MAY BE ABLE TO KEEP OR RECOVER YOUR WAGES, MONEY, OR PROPERTY. READ THIS NOTICE CAREFULLY.

State and federal laws provide that certain wages, money, and property, even if deposited in a bank, savings and loan, or credit union, may not be taken to pay certain types of court judgments. Such wages, money, and property are exempt from garnishment. The major exemptions are listed below on the form for Claim of Exemption and Request for Hearing. This list does not include all possible exemptions. You should consult a lawyer for specific advice.

IF YOU HAVE A VALID EXEMPTION, YOU MUST FILE THE FORM WITH THE CLERK’S OFFICE WITHIN 20 DAYS AFTER THE DATE YOU RECEIVE THIS NOTICE OR YOU MAY LOSE IMPORTANT RIGHTS. YOU MUST ALSO MAIL OR DELIVER A COPY OF THIS FORM TO THE PLAINTIFF OR THE PLAINTIFF’S ATTORNEY AND THE GARNISHEE OR THE GARNISHEE’S ATTORNEY AT THE ADDRESSES LISTED ON THE WRIT OF GARNISHMENT. NOTE THAT THE FORM REQUIRES YOU TO COMPLETE A CERTIFICATION THAT YOU MAILED OR HAND DELIVERED COPIES TO THE PLAINTIFF OR THE PLAINTIFF’S ATTORNEY AND THE GARNISHEE OR THE GARNISHEE’S ATTORNEY.



I gave link to wrong claim form earlier. A sample correct form is available at, e.g., https://www.leeclerk.org/home/showpublisheddocument/352/637535712346970000 . This form has following language:

“I CERTIFY UNDER OATH AND PENALTY OF PERJURY that a copy of this CLAIM OF EXEMPTION AND REQUEST FOR HEARING has been furnished by (circle one) United States mail or hand delivery on --------- to -------(Insert names and addresses of Plaintiff or Plaintiff’s attorney and of Garnishee)"

If I complete this form, get it notarized, WELL BEFORE I leave to another country (even though the plaintiff did NOT start garnishing my salary (i.e., even though no Writ of Garnishment is filed by the plaintiff) and give copies to my brother then, will it be acceptable? (if and when the plaintiff files writ of garnishment, my brother will then send those copies of this notarized document to the creditor and garnishee by United States mail. Soon after that mailing, I will also electronically file a copy of this notarized copy with the court, even though I am in another country (most probably Thailand or India) where there is internet available).

Please let me know if it it is necessary to get this claim form notarized, only AFTER (not before) the Writ of Garnishment is filed by the plaintiff. If so, then I get the above claim form notarized in the other country, then send copies to my brother who will mail, by United States mail, to the plaintiff and garnishee then I will file that notarized copy with the court, will it be enough?

 

[adjusterjack]

When do you leave for Thailand and how long will you stay there?

Will you be on unpaid leave from your employer?

 

[Zigner]

I am planning to go to another country for medical treatment, by applying leave to my current job.
...
I am the only person who has a job and income and all other members are depending on me ...

The main problem I am facing now is lack of funds: I and my family are barely surviving with my salary...

You are telling us over and over that your family is depending on you as their sole means of support, yet you wish to take leave from your job and travel to another country for "medical treatment". How do you expect your family to survive while you are gone?

Also, I make "decent" money and pay all my bills, yet I can't afford a trip to Thailand. What am I doing wrong?

 

[johnson668]

I am planning for around 6-7 months leave and I will be paid salary during (most of these) these months, thanks to my employer for their generosity. Even if I am not paid salary for the last 1-2 months of my leave, still, my family will survive on the salary that is remaining in my account from the previous months (my family will move to a rental mobile home to save the living expenses as soon as I leave for treatment): there is, and will be, no new/other source of income for my family members except for my salary. My church will cover all my travel and medical expenses.

 

[FlyingRon]

If you need someone to represent you in court, it needs to be a real attorney.

 

[johnson668]

The exemption form has following language;

I CERTIFY UNDER OATH AND PENALTY OF PERJURY that a copy of this CLAIM OF
EXEMPTION AND REQUEST FOR HEARING has been furnished by (circle one)
United States mail or hand delivery on ________________ (date) to:

---------------------------------------------------
(Insert names and addresses of Plaintiff or Plaintiff’s attorney and of Garnishee or
Garnishee’s attorney to whom this document was furnished)



I FURTHER CERTIFY UNDER OATH AND PENALTY OF PERJURY that the statements
made in this request are true to the best of my knowledge and belief.



------------ -------
Defendant’s signature, Date
STATE OF FLORIDA
COUNTY OF LEE



This exemption form is creating another issue. If I am getting that exemption form notarized e.g., on August 15, 2022 at 10 a.m. then I have to certify under oath that the form has been already (i.e., sometime before 10 a.m. on August 15, 2022) furnished to the plaintiff and garnishee (by mail or hand deliver), but this is impossible because I cannot furnish that form (to plaintiff and garnishee) until it is notarized.

How to address this?

Can I get that form notarized on August 15, 2022 stating as follows (as if I know about my future actions now itself and notarize them now itself)

CERTIFY UNDER OATH AND PENALTY OF PERJURY that a copy of this CLAIM OF
EXEMPTION AND REQUEST FOR HEARING has been furnished by (circle one)
United States mail or hand delivery on August 17, 2022 [i.e., two days after it is notarized]?

 

[doucar]

It cannot be filed until a garnishment has been issued.

 

[johnson668]

I agree it cannot be filed until garnishment is issued. The question I am asking is, after garnishment is issued.


If the garnishment is issued on August 10, 2022 but if I already get the exemption form notarized on July 15, 2022 stating as follows, then can I furnish the exemption form on August 17, 2022 to creditor and garnishee?

CERTIFY UNDER OATH AND PENALTY OF PERJURY that a copy of this CLAIM OF
EXEMPTION AND REQUEST FOR HEARING has been furnished by (circle one)
United States mail or hand delivery on August 17, 2022 [i.e., one month after it is notarized]?

 

[quincy]

I agree it cannot be filed until garnishment is issued. The question I am asking is, after garnishment is issued.


If the garnishment is issued on August 10, 2022 but if I already get the exemption form notarized on July 15, 2022 stating as follows, then can I furnish the exemption form on August 17, 2022 to creditor and garnishee?

CERTIFY UNDER OATH AND PENALTY OF PERJURY that a copy of this CLAIM OF
EXEMPTION AND REQUEST FOR HEARING has been furnished by (circle one)
United States mail or hand delivery on August 17, 2022 [i.e., one month after it is notarized]?

I don’t quite understand why must you go to Thailand or India for medical treatment. Is there some reason you cannot get the medical treatment you need in the US?

I really think you will need an attorney in Florida to handle your legal matters while you are gone, if you want to take advantage of the head of household exemption (if/when the judgment-creditor moves to garnish your wages).

Here is a link to legal aid clinics in Florida where you could find no-or-low-cost legal assistance:

https://www.flcourts.org/Resources-Services/Office-of-Family-Courts/Self-Help-Information/Legal-Aid