Important changes affecting
persons with a CDL
There have been some significant changes affecting people
who hold a commercial drivers license (CDL), what are some
of these changes?
One of the biggest changes involves keeping points off
your license. Historically, someone who got a ticket could
go through driver improvement school to keep the points
off his/her license.
As of September 30th, that has changed. Now it doesn’t
matter if a person is driving a commercial or non-commercial
vehicle. Simply put, if you have a CDL and get a ticket,
you will not be able to go through driver improvement school
to keep the points off you license, even if the ticket you
received was a result of driving your personal vehicle.
What about other ways to keep the points off your license,
are those affected too?
Again, before September 30th a court could place a person
on probation for a period of time, and assuming the person
doesn’t get another ticket during the probation time,
the ticket would not show up on his/her driving record.
After September 30th, that option is no longer available
to the court. The statute reads that someone with a CDL
cannot receive a deferred sentence or a suspended imposition
of sentence, meaning probation, in exchange for keeping
points off his/her record.
Do these changes affect someone needing a limited or
hardship license to continue working?
Yes. Pursuant to Missouri law, a holder of CDL will no
longer be entitled to receive a limited or hardship license
for the purpose of operating a commercial motor vehicle,
although the driver can still obtain a limited driving privilege
for the purpose of operating a non-commercial vehicle, such
as a personal car. But if a hardship is needed to operate
a truck in the course of employment, for example, the driver
will be unable to get a hardship for that purpose.
Further, a CDL holder receiving a DWI or an administrative
suspension while driving a non-commercial vehicle will be
facing the disqualification of his/her CDL privileges for
one year if it is a first offense, with no limited driving
privileges allowed. Obviously this will have a dramatic
impact on people who rely on a CDL for employment.
Are there any other significant changes?
The final change I’ll talk about today is that the
holder of a CDL will no longer be able to petition the court
to expunge a ten (10) year old first conviction for a DWI.
It won’t matter if the conviction was in a commercial
or non-commercial vehicle. A person not holding a CDL still
can petition to expunge a DWI under certain conditions,
you just can’t if you have a CDL.
So, as you can see, persons holding a CDL are going to
be encountering greater difficulties if they have traffic
law violations, including alcohol related violations, than
they have in the past.
The best advice is if you received a traffic ticket and
you have a CDL, consult an attorney. He or she can guide
you through this process of keeping the points off your
If people want more information where can they turn?
They are certainly welcome to contact me at 636-528-8518,
or on the web at www.tmeyerlaw.com
There has been a new Senate Bill 168 passed which will take
effect as of January 2006. So basically what is the change with
respect to Senate Bill 168 where construction is concerned?
The main change is prior to a homeowner or homeowners association
filing a claim in court against a contractor, the law sets forth
requirements that the parties attempt to contact each other to give
notice that there is a problem. The belief is sometimes suits are
filed when the contractor claims he or she did not even know there
was an issue with the structure, thereby causing considerable expense
to each party when possibly the issue could have been worked out
between the parties. The new bill also encourages construction claim
mediation in which either party can request that they meet with
a mediator. The mediator may or may not be an attorney, but is a
person who has had specific training in construction mediation and
can assist the parties in having a productive conversation about
what a good solution may be.
What does this new Senate Bill mean for homeowners and homebuilders?
Once a homeowner or an entire homeowners association believes they
have a claim arising from construction of their home or a substantial
remodel of their home the claimant must serve the contractor with
a written notice of claim of construction defects. The notice of
claim shall state that the claimant believes there is a construction
defect and must describe the defect in reasonable detail. The contractor
then has 14 days after receipt of the notice to serve a written
response on the claimant. The contractor’s response must state
whether the contractor proposes to inspect the structure within
a certain time frame and thereafter make an offer to remedy the
defect, or the contractor can simply offer to settle the claim by
a monetary payment or making some type of repairs without an actual
inspection, or the contractor may simply reject the claim or fail
to respond within 14 days.
What happens if the homeowner rejects the settlement offer or
if the contractor rejects the claim or just does not respond?
It the contractor simply does not respond within 14 days or rejects
the claim, the claimant can then proceed to court and file a lawsuit
against the contractor just like the claimant would have done prior
to January of 2006. If the homeowner rejects the settlement offer
or inspection proposal of the contractor, then that homeowner has
to provide a written notice of such rejection and explain why they
are rejecting it within 30 days. Now if it’s an actual homeowners
association that has rejected a settlement offer, that association
must hold a meeting of the members and serve written notice of the
meeting on each member giving the members the options available
to address the defects and then after that meeting is held the homeowners
association can then proceed to court.
Are there any exceptions to these new rules applying to construction
This process requiring that the claimant give notice prior to filing
suit does not apply to small claims cases, which are typically cases
asking for less than $3,000. It also does not apply to personal
injury or wrongful death claims or instances where the contractor
sues first and then the homeowner simply files a counter claim.
If the contract between the homeowner and the contractor specified
they would engage in binding arbitration, they must utilize that
method rather than the notice requirements set out by Senate Bill
168. However, if the statute of limitations is about to expire such
that the claimant only has a limited amount of time to file suit
against the contractor, in that instance the claimant can proceed
directly to court without giving the notices set out in Senate Bill
What happens if the homeowner doesn’t give the new required
notices but rather files a suit directly in court?
The homeowner’s claims would be barred if the court determines
that the claim was for non-emergency repairs and the notices were
not given. Therefore, if the homeowner has any opportunity to give
the contractor written notice it would be a better course of action
to do so prior to filing suit.
Do you think that mediation is a good alternative to construction
I think mediation is a great alternative to any litigation. I am
an attorney at Mueller, Beck &
Meyer in Troy, Missouri but I am also a mediator. Mediation
offers the parties an opportunity in a mutual environment
to really get across to the other party their view of
the situation. In court proceedings, the parties are sharply
limited on what they get to convey to the Court due to
the rules of evidence that must be followed. Also, because
mediation is not binding until a judge signs off on the
same, the parties often feel more free to work together
in giving concessions that will produce a win -- win situation
for all parties involved. With litigation, your day in
court is your one shot to get all you can, and your attorney’s
job is to help you achieve that one self centered goal.
In reality, there is more to win or lose in each case
than money. There are usually feelings at stake, reputations
and relationships, at a minimum. Mediation gives you a
shot at preserving those types of intangibles as well
as coming to an agreeable monetary settlement that benefits
all parties involved.
Alternative Dispute Resolution: What is it, and
how can it help me?
You often hear the phrase “alternative dispute resolution.”
What does that mean?
Our legal system is perceived to resolve disputes by trial, but
many cases are resolved prior to trial, or even prior to a lawsuit
being filed. There are other processes other than trial to resolve
disputes. These options are commonly referred to as alternative
dispute resolutions, or ADR. There are a number of ADR processes,
with mediation being the most common.
What is mediation?
Essentially it is a process in which a neutral third party, a mediator,
assists the parties in exploring options for resolving their dispute.
A mediator may be an attorney, but doesn’t have to be. It
is usually an informal process with the parties or their attorneys
presenting the highlights of their case. The focus in mediation
isn’t necessarily who is right, but rather how can we resolve
the dispute in a way that works for both parties.
What kinds of cases are appropriate for mediation?
Virtually any case can be mediated. It could be a dispute over
a contract, or maybe a personal injury type of case, or even a domestic
relations cases such as divorce. In fact in the 45th judicial circuit,
which includes Lincoln and Pike Counties, there is a mandatory mediation
process for all domestic cases involving children. In domestic cases,
the parties meet with the mediator and try to resolve issues as
to how best to parent their children, when each parent sees the
children, and child support.
When is the time to use mediation?
It can be used at any time before trial. In fact, it can even be
used before a case is filed. As a trained mediator myself, I have
mediated a number of domestic cases before anything was filed. The
result is that you may have an agreement between the parties before
any thing is filed, and then it is a matter of just getting paperwork
together and presenting it to the court for final approval.
What then are the benefits of mediation?
There are a number of benefits. First, it can be a cost savings.
Litigation in a divorce, or any other kind of case, can be very
expensive. Attorney fees can quickly rise into the thousands of
dollars. Mediation, on the other hand, is relatively inexpensive.
Usually the cost is less than $1000 in most domestic cases.
Second, mediation can resolve disputes amicably. After a typical
divorce trial, the parties walk away hurt, angry or frustrated because
they have just heard their spouse talk bad about them, perceive
they have lost, or feel they haven’t been heard. They’ve
heard their spouse telling the judge why he or she shouldn’t
have the children or why they don’t deserve the marital home.
In trial before a judge, there is one person sitting up there making
the decision for you. That decision may be one that neither you
or your spouse like. Litigation is about winning or losing, while
mediation is about finding a good solution.
Third, mediation can resolve disputes quickly. While a typical
divorce that has to be tried in front of a judge may take six months
or longer due to judges and lawyers schedules, mediation can resolve
disputes and finalize a case within a very short time frame.
So what if the parties try mediation and can’t reach a
resolution, then what?
Sometimes the parties cannot reach an agreement. If that happens,
then the case proceeds on to trial. It really doesn’t slow
the process down. There are some cases that need to go in front
of a judge for him or her to decide, and that’s ok. That is
why we have our judicial system. Mediation isn’t for everyone.
Some people need a judge to make that final decision for them.
What if a person changes his/her mind after reaching an agreement
Mediation is non-binding. What this means is that is does not become
final until a judge signs off on it. So if parties reach an agreement
during mediation, they can change their mind up until it is finalized
by a judge. While this happens, it is very rare.
If parties use mediation to resolve their dispute, do they need
If you are going to have it finalized by a judge, then yes you
do need a lawyer to draft the paperwork, the settlement agreements,
and the final orders or judgments for the judge to sign. There may
be times where an agreement reached in mediation doesn’t need
further judicial involvement, if that is the case, then a lawyer
may not be necessary. One word of caution, though. I would always
suggest talking to a lawyer to have your rights explained to you
before finalizing any agreement you make in mediation.
If people want more information on mediation, where can they
They are certainly welcome to contact me at 636-528-8518, or on
the web at www.tmeyerlaw.com. Or if they want specific information
regarding the mediation program in Lincoln and Pike counties, they
can contact Charla Harbour at 636-528-6300.
Dissolution of Marriage
With various forms and tips available on the Internet as well
as at office supply stores, could a person actually do their divorce
on their own without the assistance of an attorney?
There is no requirement that a person hire an attorney to handle
any legal matter, whether criminal or civil. An attorney is necessary
to help you with a divorce proceeding, or as it is called now a
dissolution of marriage, because there are many requirements that
must be set forth in your dissolution petition and other paperwork.
Each state has its own requirements as to what you must file to
obtain a dissolution of marriage, and each judicial circuit can
impose its own rules as well. Therefore, by the time you pay for
a divorce kit, research what all needs to go into your paperwork
and how exactly to get that filed, then actually do the work to
prepare all the papers, you will have likely spent as much of your
own time and money as you would have spent hiring an attorney. Further,
if you do not move the dissolution of marriage along on a timely
basis, the court will actually dismiss your case at some point for
not following the time lines imposed. If the court dismisses your
case, you will lose your filing fee which would have been approximately
$180 in Lincoln County and possibly your service of process fee
of approximately $50 if that had already been expended. Further,
without having an attorney involved, you will not know your rights
as to which property should remain your own separate property for
any reason, your rights with respect to you and your spouse’s
pensions, and the receipt and payment of alimony or child support.
What is the difference between a dissolution of marriage, an
annulment, and a legal separation?
A dissolution of marriage requires the court to find that the marriage
is irretrievably broken, meaning it’s over and you are not
planning to reunite with your spouse under any circumstances. A
legal separation requires that the court find that the marriage
is not irretrievably broken, meaning there is some possibility that
you and your spouse may actually reunite. Legal separations are
used if a couple does not want to get a dissolution of their marriage
for religious or moral reasons, or, it is often used if one spouse
has deserted the other and the spouse who has been left behind does
not want to be divorced but requires the financial support of the
spouse who has left. A legal separation requires the same paperwork
and same time line as a dissolution of marriage, and through a legal
separation the court will still divide all property and award alimony
and child support where proper. However, under legal separation,
one spouse can still medically insure the other under their health
plan or through their employer, the spouses can keep their vehicles
insured under the same agency and policies, and one spouse can still
inherit from the other spouse upon the death of the other spouse.
An annulment can only be granted in limited circumstances such as
if the parties lacked the ability to enter into a contract at the
time of the marriage, such as if one or more of the parties was
under the legal age to marry, or was otherwise incapacitated, or
if the parties were too closely related by blood to have married
per State Law. Other circumstances under which an annulment could
be granted would include error, fraud, duress, or imperfect consent;
however, these usually have to be an extreme situation such as you
married someone not knowing that they had a terrible disease, or
one party was threatened to complete the ceremony by force, or the
like. It does not include situations where a party simply changed
his or her mind the next day and does not wish to be married. Legal
annulments are pretty rare, although the Catholic church has it’s
own procedure for declaring an annulment for its own Church purposes.
What is the approximate time line to get a dissolution of marriage,
legal separation or an annulment?
The shortest time to get a divorce, annulment or separation is
31 days from the date you serve a copy of all the paperwork on your
spouse. That is if both parties are in agreement as to how to settle
all the issues. If your spouse contests any issue, the time line
then depends upon how long it takes to get the issues resolved.
Most contested dissolutions that I have handled in Lincoln County
are resolved within 5 months to 1 year. Uncontested dissolutions
generally take 2 – 4 months from the initial office visit
Could both spouses use one attorney?
Yes. I often draft the paperwork and guide the person filing the
petition through the process, and then the parties themselves can
work out what settlement they would like drafted in their cause.
Since I only represent the petitioner in this scenario, I cannot
give actual legal advice to the other spouse, although I can explain
general items, terms, and the process. The other spouse can hire
an attorney at any time, or can hire an attorney for the limited
purpose of reviewing the marital settlement agreement or other paperwork
to be sure they are getting a fair deal.
If I am getting a dissolution of marriage, how do I know which
property I should get to keep and what property will be divided
up in the dissolution?
Generally, any asset or debt that is acquired during the marriage,
regardless of whose name in on the asset or debt, is marital property
or a marital liability, meaning the court will normally assess half
of that asset or debt to each spouse. Of course, there are exceptions
to the rule based on the individual situation between the spouses.
Further, any items received by a person as a gift or inheritance
or items that the spouse had before the marriage are the separate
property of that spouse and will not be divided. The exception to
this scenario is if the spouse who has an item of separate property
does an act converting that property to a marital asset. For example,
if husband received a car by inheritance but subsequently titled
the car in husband and wife’s names, that act of putting the
wife’s name on the title would then make the car marital property.
Further, if husband owned a vehicle before the marriage but made
payments on the vehicle during the marriage, part or all of that
vehicle will likely been deemed marital property for purposes of
property division. There are various arguments to be made with respect
to whether property is separate or marital, so the issue of property
division is very difficult without an attorney
How does a person know how much child support or alimony they
are entitled to?
Child support is calculated by a Form set forth by the Supreme
Court. We enter in the average gross income of each spouse –
meaning before taxes, savings, 401(k) plans, and the like are deducted,
add in any extraordinary expenses the child may require, and the
form tells the Court what the presumed correct amount of Child Support
is. There are factors to be considered and argued on a case by case
basis with respect to Child Support that one probably could not
effectively present to the Court without an Attorney, such as the
other spouses ability to pay, the child’s actual dollar needs,
the amount of resources expended for the child while in the care
of the paying spouse, etc.
Alimony, or Maintenance as it is now called, is strictly case by
case based on the circumstances of the parties and their marriage.
It is not common for either party to be given Maintenance. If a
person is capable of working, even if they haven’t worked
in years, they are likely going to get very little, if any, maintenance
unless there is a really drastic income difference between the parties.
Of course the longer the marriage, the more likely there could be
an award of maintenance. The Court can consider many factors when
deciding whether or not to award maintenance, and an attorney can
effectively present your arguments.
When talking to friends about their dissolution situation, remember
that every dissolution of marriage case is unique to its
specific set of facts, so you cannot compare the out come
of someone else’s dissolution to your own.
The terms Guardianship and Power of Attorney are used frequently.
What is the difference between the two terms?
Both guardianship and power of attorney give the person named authority
to care for or manage the resources of another person while such
person is alive but unable to care for themselves on a day-to-day
basis or manage their financial affairs. However, both powers cease
once a person dies.
A power of attorney is actually signed by a person who is legally
competent to execute documents. Often times, individuals sign a
power of attorney document when they are doing estate planning so
they can give someone the power to manage their affairs prior to
their death if they themselves become unable to manage such affairs.
In contrast, a guardianship is issued by the court for persons
who are not legally competent to confer a power of attorney to another
person for reason that the person is either under the age of 18
or otherwise incompetent.
So when does a person need guardianship?
The biological parents of a child under the age of 18 years are
assumed to be that child’s natural guardians. However, a child
who is under 18 years of age needs a guardianship if both natural
parents are unwilling, unable or unfit to act as that child’s
guardian. Also, any person who suffers a medical infirmity such
as downs syndrome, retardation, Alzheimer’s or the like, needs
a guardian if that person is unable to effectively receive and evaluation
information or communicate decisions on their own.
Another power often granted in conjunction with a guardianship is
called conservatorship. A guardianship gives the designated guardian
authority over a person’s “body” or in other words
their physical care. A conservatorship gives a person authority
over another person’s financial assets and affairs. In most
cases, if a person is unable to take care of themselves, they are
also unable to manage their financial affairs, meaning that a conservatorship
is also necessary.
What effect does a guardianship have on a person over whom the
guardianship is granted?
Persons under 18 do not have a legal capacity to enter into contracts,
to vote or to make major decisions on their own. Therefore, a guardianship
granted over a minor does not change the minor’s rights. However,
the guardianship does establish what person or persons have legal
custody and control of that minor. For example, if mother and father
are unable, unwilling or unfit to act as the natural guardian, which
means the caregiver, of their child and the court granted guardianship
over that child to Aunt Sally, Aunt Sally is treated as if she were
the natural parent of the child. Therefore, Aunt Sally would have
the right to decide who the child does or does not see, where the
child lives, where the child goes to school, and the like. Aunt
Sally would then have access all records pertaining to the child
meaning medical records, school records, and the like. The same
is true if the guardianship were granted over an adult in that the
court appointed guardian would have full authority to make decisions
for that adult, including authority to admit the adult into a medical
facility and make decisions with respect to any medical or other
treatment necessary for the person.
Once granted, when does a guardianship end?
A guardianship over a minor child ends when that child turns 18
years of age, at which time the guardian can re-petition the court
to continue the guardianship. The guardianship could also end if
a natural parent or other person files a petition to end the same.
In that instance the court would have a hearing and make a decision
as to whether the guardianship should continue. If the guardianship
is over an adult, the guardianship will continue until any person
petitions the court asking that the guardianship be terminated or
that some other person be appointed as guardian. The court would
then hold a hearing and determine if the guardianship should continue,
be terminated, or if some other person should be appointed at that
time as guardian. Also, a guardianship over any person terminates
upon that person’s death.
If you are the parent of a child over the age of 18 who has
a handicap or other infirmities such that the child cannot take
care of himself or herself, why should that parent spend the money
and time to petition the court for guardianship as opposed to just
continuing to care for their child as they have done for the child’s
This is a question that I am often asked. Parents usually don’t
understand why it is necessary for them to petition the court for
guardianship over their child when they have cared for the child
since birth. This is generally the scenario with children who have
Down Syndrome, some type of mental retardation, or other handicaps.
Per the law, when any person turns 18, that person is presumed to
be an adult and has the capacity to make his or her own decisions.
Therefore, if a parent or other person does not petition for guardianship
over their child once the child turns 18, the law will presume that
the child is now making his or her own decisions and that the parent
does not have the right to make decisions for the child. Also, institutions
such as schools, hospitals, and any other record keepers will typically
refuse to follow the directions of a parent or to release information
to the parent once the child has turned 18 without the guardianship.
This becomes especially troublesome if the child requires some type
of medical care and the doctor or hospital will not allow the parent
to make medical decisions for the child once such child is 18 years
old. Also, at the age of 18, Missouri State Law assumes that any
such person has the legal capacity to enter into contracts on his
or her own behalf. Therefore, a person 18 years of age could enter
into a contract without knowing what they are doing and actually
bind themselves to the contract until a lawsuit is filed asking
the court to set the contract aside for reason that the person did
not have mental capacity to actually enter into the contract. Once
a guardianship is established by the court, the person who is the
subject of the guardianship is precluded from acting on his or her
own behalf. This means that person cannot legally enter into contracts,
cannot request their own records, cannot make decisions for themselves
including medical decisions, and cannot be held responsible for
any such actions they may try to take. In contrast, a person who
confers a power through a power of attorney is not precluded from
continuing to act on their own behalf. This is because in a power
of attorney situation the person conferring the power of attorney
is still legally competent to execute the power of attorney and
therefore also still competent to continue to act on his or her
What if a person needs assistance with some aspects of life
but they are still able to make certain decisions for themselves?
There is what’s called a limited guardianship. Sometimes
with respect to children a limited guardianship is granted
to another person just with respect to medical care, meaning
the person granted the limited guardianship has the right
to medically insure the child under their plan or through
their employers plan. A limited guardianship can also
be granted for the specific purposes of schooling such
that the child may then legally attend school in the district
where the limited guardian resides. With respect to adults,
limited guardianships can be as creative as the judge
allows. For example, a person may be adjudged to need
assistance making medical decisions, or living arrangements,
but may still be of sound mind such that the person should
be allowed to vote or to maintain their financial affairs
without assistance. Also, an adult may be able to care
for themselves but may not be able to manage their financial
affairs and would therefore need to petition the court
for a limited conservatorship, which is again the power
to manage another’s financial affairs. If there
is any question that a loved one may need a full or limited
guardianship or conservatorship you should certainly consult
What is a Health Care Directive?
This is a document, signed by a person which state’s his/her
wishes/intentions for medical treatment if he/she is unable to make
those decisions on their own. The inability to make competent decisions
shall be certified by two doctors before the directive takes effect.
It also names the person who shall make these decisions, usually
called the agent.
Let’s assume John has been named by Mary to serve as her
agent under her health care directive, what should John do?
John needs to determine first what his role and duties are. He
needs to look at Mary’s HCD and possibly review the relevant
statutes. His duties will begin once two doctors certify Mary is
no longer competent to make these decisions.
Once that happens, what authority does John have?
Basically, John has the authority to make any and all decisions
Mary would make if she was able. This includes:
- Receiving the same medical information Mary would receive
- Confer with the medical team
- Review the medical records
- Ask questions and get answers
- Discuss treatment options
- Request consultations and second opinions
- Consent to or refuse medical treatment, including life-sustaining
- Authorize to transfer to another facility
- Authorize release to home
- If authorized, consent to organ/tissue donation
- If authorized, consent to autopsy.
How does John go about making these tough decisions?
The toughest decision may concern beginning or stopping life-sustaining
treatments. In each life there may come a time when the patient’s
condition has deteriorated and it is clear that he or she will not
get better. Rather than thinking of this as depriving your loved
one of necessary treatment, you may be protecting that loved one
from unnecessary pain and suffering. Many people say they do not
want to die slowly, hooked up to machines, or fed artificially through
tubes. You need to know what your loved one wants.
John must first find out all the medical facts. This requires talking
to doctors and getting a complete picture of the situation. Second,
John needs to find out all the options. Make sure the doctor describes
the risks and benefits of each option. Third, John must figure out
how Mary would decide if she knew all the facts and options.
How does John “figure out” how Mary would decide?
There are three possible approaches to this:
First, if John knows Mary’s wishes, he should follow them.
Second, if he doesn’t know her wishes for the specific decision
at hand, but has the evidence of what she might want, he can try
to figure out how she would decide. This is called substituting
judgment, and it requires trying to step into Mary’s shoes.
The aim is to try to get to what Mary would decide, even if it is
not what John would choose for himself.
Third, if John has very little or no knowledge of what Mary would
want, then John and the doctors will have to make a decision based
on what a reasonable person would do in that same situation. This
is called making decisions in the patient’s best interest.
John needs to evaluate the benefits and burdens on the proposed
Finally, are there things an agent can do to make these decisions
Yes, let me give you five things real quickly:
- Do prepare in advance with your loved one. Learn what is important
to him or her in making health related decisions. Talk about beliefs
and values regarding living and dying. Talk about spiritual beliefs.
- Do make yourself and your role known to the medical staff.
Make sure the HCD is in the medical chart. Keep a copy with you
as well. Show it to all the medical providers involved in your
loved one’s care.
- Do stay informed about the person’s condition as it changes.
Medical conditions change, medical staff change. Identify the
best person to keep you informed of these changes. Stay involved
and be flexible.
- Do keep the rest of the family informed. Although you may have
the legal authority to act, most agents feel more comfortable
with the decisions if other family members have input. Good communication
can foster consensus. If disagreements arise, seek out help from
social workers, clergy, or other outside sources.
- Do advocate on the patient’s behalf, and assert yourself
with the medical team, if necessary. Some medical personnel may
not be comfortable with your involvement. You may disagree with
the doctor’s recommendation. This is hard, but you must
be tactful and assertive.
Probate: What is it and how can we avoid it?
You hear people make the statement they want to avoid probate,
what does that mean?
That is probably the most frequent request I get when working on
someone’s estate plan. Let’s look at what happens upon
a person’s death. At the time of death any assets they own
must now be transferred to the new owner. If it is jointly owned,
it goes to the other person. If it is held in trust, it goes in
accordance with the trust. However, if they own it in their sole
name, it must be retitled and distributed to the right person. The
probate division of our court system is there to ensure that the
property gets distributed to the right persons and is retitled in
the correct name.
So when we talk about a will being probated, or an estate going
through probate, we simply mean it is going through the judicial
process of being distributed to the rightful heirs and retitled
in the correct name.
Could you take me through the process of probate?
If a person has a will, the person who is named personal representative
or executor in the will takes the will to an attorney who then files
it with the probate division. From there, assets are gathered, debts
are paid, and ultimately the remaining property gets distributed
to the heirs named in the will. If there is no will, the process
is basically the same, except the remaining property is distributed
in accordance with Missouri law.
So why do people want to avoid probate?
One of the primary reasons is to avoid costs. When a person’s
estate goes through probate there are a number of costs or expenses.
First, there are court costs. Generally, these are tied to the size
of the estate, but usually are just a few hundred dollars. Second,
there are costs of publication. In most situations there are at
least two notices that must be published in the local paper, one
at the commencement of the case and one at the conclusion of the
case. These also run a few hundred dollars.
Third, there may be bond premiums that need to be paid. When someone
is appointed personal representative, they have to be bonded to
guarantee the faithful performance of his/her duties.
Fourth, there are the personal representative’s fees and
attorney fees. Generally, these are set by statute and are based
on the size of the estate. This is where the greatest costs are
seen. In Missouri, for example, on a $100,000 estate, the attorney
and the personal representative both would receive $3300 for fees,
for a total of $6600 in attorney and personal representative fees.
As you can see, if you have an estate worth at least $100, 000,
you are going to have costs and expenses of around $7500.
Are there other reasons people want to avoid this process?
Yes. Other reasons may include time. Even the simplest estate can
take 6-8 months to complete. Some people don’t want the size
of their estate known. Files in the probate division are open to
the public. Anyone can go and look at these files at anytime. Some
people believe that if your estate is in probate, the court, or
Missouri law, controls where you property goes. While this isn’t
true, your will controls this, there is that perception.
But don’t get me wrong, while these are all legitimate concerns,
the probate division is there to assist in getting their assets
distributed to their heirs, and it is very effective part of our
If a person wants to avoid probate, are there things they can
Absolutely. First, if you own property jointly, these assets pass
automatically at your death. For example, if a husband and wife
own a piece of real estate or have a bank account together, these
automatically go to the surviving spouse. This also works if you
have a joint account with your son or daughter.
Second, you can do things such as set up a beneficiary deed on
real estate, a payable on death on your bank account, or a transfer
on death on your vehicle titles. Again, these pass immediately upon
Third, you can set up a living trust. There are several reasons
to set up a trust, but one of the most common reasons is to avoid
probate. With a trust, you transfer your assets into a trust, and
upon your death, the trustee distributes the assets in the manner
you set forth in your trust agreement.
Fourth, although not popular, you can give away everything you
own during your lifetime, and thus have no assets to pass on at
Finally, the best advice I can give is to go talk to an attorney
who does estate planning. Everyone’s situation is unique.
There are other considerations in setting up a good estate plan
besides avoiding probate. Some people may want to reduce the estate
tax burden, others may want to protect their assets for their grandchildren,
still others may want to give money to charity or maybe set up an
education trust, or maybe there are those who need to make sure
their disabled child gets taken care of.
I know we don’t like to think about our own mortality, but
if we want to maximize what we can pass on to our children,
we need to start planning today. Avoidance of probate
is only one factor in establishing an effective estate
What is Small Claims Court?
Small Claims Court is truly a people’s court. It doesn’t
cost much money to file a claim, typically less than $30. It is
used for claims of $3000 or less. And usually you don’t need
a lawyer as rules of evidence are not followed. In small claims
court, people are simply allowed to present their cases to the judge
without much interruption.
How do you file a claim?
First, small claims court is located at the court house. When you
go there, you ask to speak to the clerk who handles small claims.
Most courts also have a handbook they can give you which gives you
all the information about Small Claims Court, how to file suit,
how to serve the defendant, how to collect your judgments, etc.
Second, you need the name and address of the person you are going
to sue. The clerk will help you fill out the paperwork, and tell
you when you need to come back for court.
What do you do on your court date?
First, and most importantly, you must appear that day. If you don’t
appear, your case will be dismissed.
Assuming you get to court, you need to bring all paperwork you
have that you want the judge to see. When your case is called, you
will have the opportunity to talk to the judge, telling him/her
your reasons why you are entitled to receive money from the other
side. You can also give the judge all your paperwork. You can have
witnesses talk to the judge as well.
The person on the other side will have the same opportunity to
talk to the judge, show paperwork and present witnesses.
When everyone is done talking to the judge, the judge will then
make a decision as to how much money, if any is owed to you.
What happens after I win my case?
If you win, a judgment will be entered against the other party.
A judgment is a piece of paper that says you are owed a certain
amount of money by the other side. The losing party may appeal the
case to another judge for a new hearing if they want. If it is appealed,
the case will be retried in front of a new judge.
If you win and no one appeals, you now must collect the money.
The court will not collect it for you.
So what do you do to collect?
If the losing party does not voluntarily pay, you will need to
go back to the courthouse and fill out an additional form called
a garnishment. You will need to know where the other person works
or banks in order to collect. Once you know that, you file the form
with the court and pay a small fee to the local sheriff’s
department to have the form served on the bank or employer. In small
claims court you are usually only garnishing the other person’s
wages or bank accounts. There are some other assets you can garnish,
or execute against, but for small claims judgments, you cannot place
a lien on real estate.
Once the debt is paid, you then have to file a document with the
court stating the debt is paid in full.
Should you always file in small claims court if the amount owed
is $3000 or less?
For the most part, yes, because of the limited costs, the ease
of presenting your case, and how quickly the matter gets resolved.
However, I would always suggest you speak with an attorney first
before deciding to file a small claim. Just because your claim is
$3000 or less doesn’t mean you have to file in small claims
court. You do have the option of filing in regular court.
Why would you not file in small claims court?
There are numerous reasons, but the primary ones would include
being able create a lien on real estate and making sure the rules
of evidence are applied and followed. You may also be entitled to
other compensation depending on the nature of your claim. In small
claims court, you are limited to only the recovery of money.
So as you can see, while small claims court is a relatively simple
court to maneuver through, you still should seek legal
counsel before deciding to file your claim. Talk to your
attorney about your claim and follow the advice he or
she gives you.
Everyday people are issued traffic tickets, and many people
just pay the fine for the violation so they do not have to go to
court. Is there any reason that a person should not just pay the
ticket to save time and the expense of an attorney?
Many people are under the mistaken impression that once issued
a traffic ticket they have no alternative other than to pay the
ticket and accept the ramifications thereof. Some tickets in our
area will say at the top of the ticket FCC due in 30 days. This
further leads people to believe that they don’t have any choices
but to pay the ticket in 30 days, and that is certainly not the
case. By paying for the ticket, the person will then receive one
or more convictions on their driver’s record, depending on
how many tickets were issued, as well as points for each conviction.
That person’s insurance company will eventually find out about
the convictions on that person’s driving record and normally
will increase rates accordingly. Further, if that person desires
to change insurance companies within the next two to five years,
the new insurance company will check their record and see those
items are on their driver’s record. Also, potential employers
often request a driving record particularly if your employment is
going to consist of driving a company vehicle or making deliveries.
Also, if a person intends to apply for life insurance, an underwriter
will oftentimes request a copy of the driver’s record to assess
risk for insuring that person. Further, if that person receives
any additional tickets or is involved in a car accident at a later
time, the insurance company may choose to drop coverage on that
person based on the prior tickets coupled with later tickets or
an accident. So as you can see, there are several consequences to
paying for a traffic ticket.
But what can you do about traffic tickets?
If you hire an attorney who handles traffic law cases, that attorney
is able to review the ticket issued as well as any reports that
may have been made by the police with respect to that incident to
ensure that proper procedure was followed prior to your receiving
the ticket. Also, the attorney can enter into negotiations with
the prosecuting attorney and try to obtain an outcome for your case
that will not result in a conviction on your driver’s record
or points on your driver’s record.
What if I have a commercial drivers license?
A commercial drivers license, or a CDL carries its own set of consequences.
Most people have a CDL only if their job requires it. There are
heightened standards for receiving a CDL, and likewise, you are
given less leeway in terms of points on your license before your
CDL is suspended or revoked. This makes it even more important for
you to seek the services of an attorney if you are issued a ticket
and hold a commercial drivers license even if you are not driving
a commercial vehicle at the time the ticket was issued.
Explain the process that happens when a person receives a ticket.
Let’s say a driver named John receives a ticket for speeding.
John’s ticket will have a court date, time and place for John
to appear in front of the judge. John is required to attend court
on that date to either plead guilty or request additional time to
get an attorney, or to request a trial. Without an attorney, it
is likely that John will ultimately be found guilty of speeding
at which time his drivers record will reflect the conviction along
with at least 2 points for that ticket.
Alternatively, if John chooses to seek the services of an attorney,
the attorney can go to court for John. The attorney will request
any reports made in connection with the ticket and will review the
ticket to be sure proper procedure was followed. The attorney will
then negotiate with the prosecuting attorney based on the circumstances.
So in my example, if the prosecuting attorney allowed him to plead
guilty to what’s called a no point speed violation, that would
result in no points being assessed on John’s driving record
and in most of our local jurisdictions, those tickets are not reported
to the drivers license bureau at all. Therefore, there would be
no evidence on John’s driving record at all that the ticket
was ever even issued. Thereafter, persons who review John’s
driving record will only see the points or convictions actually
plead to by John, and not the original charges for which the ticket
or tickets were issued.
Do other types of tickets lead to points and convictions on
your driving record?
Any moving violation will result in points added to your driving
record if you simply pay the ticket that was issued to you or if
you later plead guilty to the ticket or are found guilty by a court.
This would include failure to stop at a stop sign, a ticket for
not having proof of insurance on you, a failure to yield ticket
or failure to drive on the right half of the road as well as more
serious offenses such as driving while intoxicated or driving while
How many points can you accumulate before you get suspended?
This becomes complicated because there are different levels of
suspension. Any time you accumulate eight points within eighteen
months of each other you are suspended the first time for a minimum
of 30 days and then if you do so again, you will be suspended for
progressively longer periods of time. However, if you accumulate
enough points to where you received 12 points within a 12 month
period, you will actually get your license revoked for one full
year. There are other point accumulations that result in your license
being suspended or revoked, but the main thing to remember is once
points begin to accumulate on your driver’s record you are
slowly putting yourself in danger of being suspended for at least
30 days. I see this happen sometimes with younger people who don’t
want their parents to realize they have received traffic tickets.
The young people assume if they pay the ticket quickly their parents
will never find out and there will be no harm. But after the accumulation
of points, the young people will receive a notice from the Department
of Revenue that their license is being suspended for accumulation
of points. Another danger is what is called five and ten year denials
which are issued to persons who have repeated revocations or repeated
alcohol contacts such as multiple driving while intoxicated charges
or some jurisdictions call it driving under the influence.
Can you also help with Driving While Intoxicated and Driving
While Suspended or Revoked charges?
Yes, that is a great question. It is extremely important to seek
legal advice if charged with Driving While Intoxicated,
which can mean that the authorities are alleging you were
either under the influence of alcohol or drugs or both.
There are specific requirements that law enforcement must
follow when charging you with such an offense, and your
attorney can review the reports generated as well as the
situation that led to your being charged to determine
if correct processes were followed. Your attorney can
also identify any defenses you may have to these charges
and can also work with the prosecuting attorney to reach
an acceptable resolution to your case rather than your
simply accepting a conviction on the charge. The same
applies for a Driving While Suspended or Revoked charge.
If convicted, either one of these would be a 12 point
violation meaning you would lose your license immediately.
However, in all cases I mentioned here today the exact
resolution is a case by case basis. The more convictions
that you have on your criminal or driving record, the
more difficult it will be to reach a desirable resolution
for future tickets. That is why it is so important to
seek the assistance of legal counsel on each ticket, even
if you think the consequences of the ticket will be insignificant.
What is a Will and how does it
What is a will?
A will is simply a legal paper that states who receives your property
when you die. Each state has its own laws about wills and how they
work. Anyone at least 18 years old can make a will as long as he/she
Why do you need a will?
There are a number of reasons a person will want to have a will.
First, it allows you to decide where your property is going after
your death. Second, if you are a parent of minor children, you can
establish who would be guardians of your children; you can provide
for your children without court intervention; you can set up a trust
for your children or any other family member. Third you can set
some guidelines to save costs such as waiving a bond and providing
for independent administration of your estate. Finally, you will
have the assurance of knowing you have planned for your family.
If you already have a will, how long is it valid and when should
you update it?
A will is valid until changed or canceled by you. However, if you
get divorced, a will benefiting the ex-spouse is not enforceable.
So you should look at changing or updating your will when your situation
changes. Some examples would include getting divorced or getting
married. You should consider re-visiting your will if your family,
property, money or other assets change in value or nature. Or if
you move to another state, you should have your will looked at to
make sure it conforms to your new state’s laws.
Are there things to do that take the place of a will?
I wouldn’t say there are things that replace a will, but
there are things that supplement it. You can do a number of things
that will allow property to pass to someone without the benefit
of a will. We often term those things as non-probate transfers.
You can do things such as put someone else’s name on your
bank account or do a payable on death. On your vehicle you can change
the title to add someone as a beneficiary, a transfer on death.
You can do a beneficiary deed on your real estate which automatically
transfers real estate to your named beneficiary upon death. Or you
can do a living trust which allows a trust to disperse your assets.
Again, these things should supplement a will, not replace one.
Regardless of what you do, you should talk with an attorney before
deciding to not have a will.
What happens if you die without a will?
If you die without a will, your property that you own alone will
essentially go to your closest relatives. While in some cases that
may be ok, if you want property given in a certain manner, or to
persons or entities that are not close relatives, then you have
problems. The bottom line is that the persons receiving your property
are decided by law, rather than your wishes. Further, you will have
not control over who are the guardians of your children or how any
assets they receive will be handled.
If someone wants more information, where can they go?
The best place to go is to an attorney who does probate and estate
planning. This is an area of law where things keep changing,
so you need someone with expertise in this area. I know
there are will kits and things such as that out there,
but you need someone who can evaluate your situation and
give you advice on what you need. The last thing you want
is to write up where you want your property to go, only
to find out that it isn’t a valid will.
In general terms, when do youth officially become adults in
Generally speaking for criminal matters, a young person becomes
an adult when he/she turns 17. In all other matters, a young person
becomes an adult when he/she turns 18 (i.e., to sign contracts,
Tell us about the process. If a juvenile is caught in a crime.
What happens to them?
When a juvenile is “arrested”, the matter is immediately
referred to the juvenile office in the county where the crime is
alleged to have been committed. The juvenile officer will conduct
an investigation and determine how to handle it. The JO can either
handle the matter formally or informally. If it is handled informally,
typically, the JO will arrange a meeting with the juvenile, discuss
the matter, and possibly have a period of “unsupervised probation”.
If it is handled formally, then a petition is filed in juvenile
court where a disposition is ultimately approved by a juvenile judge.
If a disposition is approved, what is the next step? What does
that mean to a case involving a juvenile?
In juvenile court, a disposition is essentially the equivalent
of a judge in adult court issuing a sentence. The disposition, for
example might be probation, or time spent confined in the division
of youth services.
How do the courts determine whether to try a youth in juvenile
court or adult court? What factors are considered?
First, there are 8 situations where a juvenile court is required
to conduct a hearing to determine whether a juvenile remains in
juvenile court or is tried an adult. There are:
1. First degree murder
2. Second degree murder
3. First degree assault
4. Forcible rape
5. Forcible sodomy
6. First degree robbery
7. Distribution of drugs
8. If the juvenile has committed 2 or more prior unrelated offenses
that would be felonies had the juvenile been an adult.
There are only required hearings, not required certifications.
The basic things a judge should consider when deciding whether to
try a juvenile as an adult are essentially where the child is a
proper subject to be dealt with under the juvenile code, and whether
there are reasonable prospects for rehabilitation within the juvenile
There are a number of factors that a judge considers, including,
the nature of the alleged offense, the juvenile’s record,
the juvenile’s level of maturity, the programs and facilities
available for the juvenile, and the age and racial disparity.
How difficult is it to make that determination? What are the
consequences of trying, say, a 13 year old as an adult for a crime?
What happens if they are convicted? Where do they serve out their
sentences? Adult prisons?
I can only imagine this is a very difficult decision for a juvenile
judge to make. Once a juvenile is certified as an adult, they are
treated as an adult for any other future actions, including things
that may be relatively minor offenses. In addition, as a society,
we don’t have any real means for taking care of a 13 year
old who has been tried and convicted as an adult. What do we do
with them? Do we put them in prison with older adults? Most of the
time we don’t, but there is nothing preventing this from happening.
Our prison system is not set up to handle these types of situations.
What if they aren't convicted? They're names have been
released to the media. What does this mean for the youth and his
Even if a young person is not convicted, the matter has been put
to the public. As you know courts are open and the general public
now can know details it would never have known had the matter been
kept in juvenile court. Again, this also means that once he/she
was certified, he will always be treated as an adult from now on,
so this can have a devastating affect on the juvenile and his family
for many years to come.
If they are tried and convicted in juvenile court, do the
sentences stop at age 18 (or the age they stop being a juvenile),
or can those sentences carry over past that age?
The juvenile court can maintain jurisdiction over a person convicted
in juvenile court until they reach the age of 21.
If you have a son or daughter or grandson who gets into
trouble, what should you do? What questions should you ask when
you seek legal advice or try to find representation?
The first thing is to contact an attorney. Make sure
the attorney practices in the area of juvenile law. This
is important as this is a different area of law and things
are handled differently than in adult court. Ask the attorney
about his or her experience. If you don’t know any
attorney, you can also contact the Missouri Bar’s