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Q. My wife is currently hospitalized, but upon her release my stepson wants to place her in a nursing home against my will. He somehow got a power of attorney for her, but I am legally her husband. Don’t I have any rights?

A. Under current Kansas law, a spouse has no automatic legal right to make health care decisions for the other spouse. In other words, every person, regardless of marital status, has the right to make independent medical decisions. That right includes the right to designate others to make health-care decisions when necessary.

Every couple should discuss these kinds of issues with an attorney and should draft powers of attorney for health care, a living will and a last will and testament. When these documents are drafted by folks in good health with competent legal advice, emotionally troubling situations like yours can be avoided.

In this instance, however, your wife has apparently given legal authority to her son to make decisions, thereby cutting you out of the loop. She may have done that out of kindness – to keep you from making emotionally difficult decisions. Or, she may have been coerced by a child hoping to take advantage of her.

If you believe your stepson obtained the power of attorney improperly, or you believe he is taking steps that are not in your wife’s best interest, you can seek help in court. There are many options you might attempt. For example, you could challenge the validity of the power of attorney. Or, you might allege your stepson is breaching his duties as attorney in fact. If you are correct, the court will likely grant you the authority to make decisions for your wife (assuming she is unable to make her own decisions).

In any event, you will need legal assistance. You might start by calling the Elder Law Hotline, (888-353-5337) sponsored by Kansas Legal Services. You may be able to get the answers you need from that free service. Unfortunately, you may eventually need to hire an attorney experienced in elder law matters to get things sorted out. If and when you do that, and once your wife’s situation is improved, make certain she has the attorney prepare the documents I listed above. You should execute the documents now so that if and when something happens to you, you are protected.

I hope this was helpful.

David J. Brown, Managing Attorney The Law Office of David J. Brown, LC 1040 New Hampshire, Suite 14 Lawrence, Kansas 66044 785-842-0777

Because every legal situation is different, no response or comment in this blog can be considered legal advice to any one person, even the person who posed the original question that prompted a discussion because the answers will be generalized to provide basic information for all readers. Anyone with a real or potential legal problem should seek the advice of a practicing attorney who is educated and experienced in the area of law in question. Use of this blog does not create an attorney-client relationship between the reader and The Law Office of David J. Brown, LC.

Q. I am a 15-year-old mother trying to get married to the 22-year-old father of my child. My parents have given consent. Can I marry in Kansas?

A. Getting consent of your parents is just one step in the process for a 15-year-old getting married. And, technically, the statute governing your proposed marriage, K.S.A. 23-106, does not require parental consent.

Instead, in such instances, the law requires a judge to approve the marriage as being in the best interests of the person who is 15 years old. The judge is required to conduct an investigation on that point and in so doing, the consent of the parents would be considered evidence of what is in the 15-year-old’s best interests. But, depending on the specific circumstances, it is possible a judge could deny permission to marry even if parents have consented.

If the 15-year-old mother turns 16 and has the consent of both parents, the judge is out of the picture. If, however, only one, or none of the parents consent, the judge is again required to approve the union. In this instance, the statute only requires the judge “to investigate,” and then approve the marriage. The statute fails to address factors that might be considered by the judge in determining whether consent should be granted.

In the case of a 15-year-old mother, it is reasonable to believe the judge will want to know the circumstances attendant to the pregnancy. For example, if the pregnancy was the result of forceable rape, a judge may be reluctant to approve a marriage. Indeed, if conception occurred when the mother was 14, the judge may be concerned about the statutory rape issues. In almost any event, a crime was committed during conception and the court is likely to be very concerned about that fact as it makes determinations about marriage being in the best interests of the 15-year-old mother.

Since you say you want to get married, you should hire an attorney experienced in these matters to present your case to the court in the best light possible. The attorney should be well versed and prepared to address the concerns I discuss above.

I hope this was helpful.

David J. Brown, Managing Attorney The Law Office of David J. Brown, LC 1040 New Hampshire, Suite 14 Lawrence, Kansas 66044 785-842-0777

Because every legal situation is different, no response or comment in this blog can be considered legal advice to any one person, even the person who posed the original question that prompted a discussion because the answers will be generalized to provide basic information for all readers. Anyone with a real or potential legal problem should seek the advice of a practicing attorney who is educated and experienced in the area of law in question. Use of this blog does not create an attorney-client relationship between the reader and The Law Office of David J. Brown, LC.

Q. I received a ticket and have a court date for driving my car with tinted windows. The purpose of my tint is due to severe sensitivity to light. At times when I’m driving a vehicle without the tint my eyes tear and close. I can’t keep my eyes open and the pain is unbearable. Can I get a doctors permit? If so, what would it need to specifically state?

A. Unfortunately, the statutes governing tinted car windows (K.S.A. 8-1749a, 8-1749b, and 8-1749c) do not allow for a medical exception. These laws are what is sometimes referred to as strict liability statutes: you have either violated them or you have not. Excuses and explanations are not valid legal defenses.

That does not mean you will automatically have to pay the ticket. The state must prove that you violated the law. In other words, the state will have to prove that your tinted windows let in less than 35 percent of the light hitting the outside of your window. That would require some testing and your question does not give me enough information to know whether the officer who ticketed you conducted any such testing.

If testing was not done, you may be able to argue the state can’t meet its burden of proof. Further, if testing was done, the officer will have to prove that he was qualified to do the testing and that he did it properly. If he can’t prove either of those points, you should be able to win as well.

Finally, the law about tinted windows holds installers liable if they install tinting that is too dark. Indeed, such a violation is a Class C misdemeanor. If you are convicted of having tinted windows that are too dark, you may have a right to sue the person or company who installed the tinting.

You should consult with a qualified attorney to discuss both your defenses to the criminal charge and any civil action you might have against the installer. You might find that one attorney will help you with the criminal issues and another will be required to assist with the civil lawsuit. But in any event, you will best be able to protect your rights if you get competent legal advice.

Not to be trite, but in the future, invest in, and wear, high quality sunglasses. There are no laws limiting driving with sunglasses. And, good glasses will cost far less than tickets and legal fees.

I hope this was helpful.

David J. Brown, Managing Attorney The Law Office of David J. Brown, LC 1040 New Hampshire, Suite 14 Lawrence, Kansas 66044 785-842-0777

Because every legal situation is different, no response or comment in this blog can be considered legal advice to any one person, even the person who posed the original question that prompted a discussion because the answers will be generalized to provide basic information for all readers. Anyone with a real or potential legal problem should seek the advice of a practicing attorney who is educated and experienced in the area of law in question. Use of this blog does not create an attorney-client relationship between the reader and The Law Office of David J. Brown, LC.

Q. I need to know how to file, on my own, for a divorce. I have a minor child. I face issues of custody, visitation, support etc. How do I proceed?

A. Folks who cannot afford to hire an attorney for their divorce face many difficulties. Obviously, the court system is designed by and for lawyers; thus navigating on one’s own (pro se) in legal waters is treacherous. Nevertheless, there are a few options to help you reach safe shores.

First, contact Legal Aid (in Douglas County, that’s 785-864-5564) or Kansas Legal Services (again in Douglas County that’s 785-838-3401). Both agencies provide legal services for low-income persons. In some instances, the services are provided for free.
Second, if those agencies cannot assist you, they may be able to refer you to an attorney who will handle your case pro bono (for free) or at reduced rates. Make certain you ask about this if neither agency can assist you.

Third, if you are forced to do things on your own, the Douglas County Law library is a wonderful resource. The law library is located in the Judicial and Law Enforcement Center at 111 East 11th Street, Lawrence. The librarian, who is not an attorney and who cannot give specific legal advice, can, however, be very helpful.

There are several books in the library with basic divorce forms that anyone filing for divorce will find useful. Some of the resources also include nearly step-by-step instructions about filing a divorce petition and taking steps to represent yourself.

Further, the law library has computers that are linked to several legal web sites where additional information and guidance can be obtained. Ordinarily, the sites charge for access, but if using the law library computer, access is free. Further, the librarian can help identify useful sites and form search questions.

Finally, as part of a test program state-wide, some attorneys in Douglas County are offering to help pro se parties in divorce by working on limited parts of their divorce at costs based only on the work necessary to do that limited work. The hope is that parties can generally represent themselves, but get answers to critical legal questions at a fraction of what it usually costs to hire an attorney. The law librarian can provide a list of attorneys who participate in that program.

I hope this was helpful.

David J. Brown, Managing Attorney The Law Offices of David J. Brown, LC 1040 New Hampshire, Suite 14 Lawrence, Kansas 66044 785-842-0777

Because every legal situation is different, no response or comment in this blog can be considered legal advice to any one person, even the person who posed the original question that prompted a discussion because the answers will be generalized to provide basic information for all readers. Anyone with a real or potential legal problem should seek the advice of a practicing attorney who is educated and experienced in the area of law in question. Use of this blog does not create an attorney-client relationship between the reader and The Law Office of David J. Brown, LC.

Q. I got married in Kansas but worked and earned retirement in Missouri. Does my husband have legal rights to half my retirement if I file for divorce?

A. Retirement benefits are generally considered marital property and, as such, in Kansas the courts have the power to equitably divide marital property in a divorce. Where you worked, or even where you were married, will not matter when the court decides whether your soon-to-be ex-husband should get any portion of your retirement benefits. That doesn’t mean he will get half of the retirement. Before the Court can divide assets it will consider “evidence regarding changes in value of various assets before and after the valuation date in making the division of property.” In making the division of property the court is required to consider “the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; the tax consequences of the property division upon the respective economic circumstances of the parties; and such other factors as the court considers necessary to make a just and reasonable division of property.” So, your lawyer may have many points to make in arguing you should keep all of your retirement benefits.

I hope this was helpful.

David J. Brown, Managing Attorney The Law Offices of David J. Brown, LC 1040 New Hampshire, Suite 14 Lawrence, Kansas 66044 785-842-0777

Because every legal situation is different, no response or comment in this blog can be considered legal advice to any one person, even the person who posed the original question that prompted a discussion because the answers will be generalized to provide basic information for all readers. Anyone with a real or potential legal problem should seek the advice of a practicing attorney who is educated and experienced in the area of law in question. Use of this blog does not create an attorney-client relationship between the reader and The Law Office of David J. Brown, LC.