GGrayLaw | Week 5 Q&A with Gerald Gray – A Kansas City Attorney
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Week 5 Q&A with Gerald Gray – A Kansas City Attorney

Week 5 Q&A with Gerald Gray – A Kansas City Attorney

Q1.
My sister had been battling a drug and alcohol addiction since she was 19 years old so she moved
from Kansas City, MO to Topeka to live with me and our father.
A few weeks after she arrived, she was involved in a car accident, and killed.
My mom obtained an attorney to represent her in the wrongful death claim.
It was our understanding that the case was settled but then my mom’s boyfriend started making trouble and the insurance company wants a probate estate opened and a release from everyone before they will issue payment. We are having issues with my mom’s boyfriend, he is my dad’s former best friend who engaged in a affair with my mom.
Her boyfriend believes that he may be the father of my late sister and does not want my dad to get any of the
money.
He thinks he should share it with my mom.
The attorney who has been working on the case has thrown out the possibility of a DNA test to settle the issue.
My dad wants to resolve this matter so that he can work on recovering from the loss of my sister? What should he do?
A.
This situation sounds horrible.
I first want to offer my condolences for the loss of your sister.
The things that are going on with your mom and dad seem terrible and it is unfortunate that they are allowing money to create more of a heartache after losing a child.
This case has a lot of moving parts.
First issue is whether or not there are any Probate implications in this death and if so, whether Missouri or Kansas law applies, because of your sister relocation right before her death.
Sometimes, insurance companies will require a Probate estate to be opened up even to pay out proceeds dealing with a personal injury of a decedent, who is the person that died.
This is a lot like other situations we’ve discussed dealing with insurance proceeds.
However, we are now talking about a auto accident/ insurance claim for someone who has died not a life insurance policy.
The insurance company is worried about paying out proceeds to the correct people so they will not
do so, if all the parties are not in agreement to avoid having to pay the same money twice.
This is likely their concerns given your mom’s boyfriend claiming that he could be the father of your late
sister.
However, if your dad has legally been deemed the father, then DNA results are unlikely to matter.
For example, if your mom and dad were married when your sister was born, then he is the legal father under state law regardless of the DNA results.
Your father would need to consent to being removed which makes no sense from this standpoint because it would result in your dad’s former best friend benefiting from having an affair with your mom.
The attorney who is working on the case has some issues because it would be difficult if not impossible to represent all parties given the conflict amongst those involved.
Another factor to be considered is that different states have different laws regarding inheritance.
So for example, if your sister did not have a will, then depending on whether or not Kansas law or Missouri la
w applies, you as a sibling may have an equal right to the insurance proceeds along with your parents and any other siblings if applicable.
You and your parents should certainly speak with an attorney to assist you in navigating the many issues
surrounding this dynamic situation.
Q2.
I received a speeding ticket and a ticket for no insurance.
However, I am certain that I was not speeding.
The officer was traveling the opposite direction and made a U-turn to chase me down.
I went to Court to fight the ticket and the Judge recommended that I get a lawyer?
Is that necessary to get this matter resolved?
A.
It depends on how you want to pursue this matter and what resolution you are seeking.
For example, if you are seeking to fight the charges, then you can do this pro se, or on your own without a
lawyer, but it will be extremely difficult to win without knowing proper procedure and other legal
matter.
Traffic matters in general are extremely difficult to win at trial and the cost of retaining an
attorney to represent you in a trial far exceeds the cost to try to resolve the matter by other
means.
Therefore, as much as you may hate it, could be more cost effective to hire an attorney to try to have the charges amended to a non-moving violation that does not affect your insurance.
An attorney may even be able to get some charges dismissed especially when there are multiple tickets at
issue.
Therefore, you must decide is it worth the fight financially despite your frustration in the situation.
Q3.
I have been battling cancer and although it is not terminal, I am looking into retaining an
attorney to draft a will for me.
I have a 10 year old daughter who I want to leave my house, car, and insurance policy to.
However, I am worried that if something happened to me, her dad would want to get her just so that he could get a hold of the money.
He has not been involved in her life at all and rarely sees her.
He does not even pay child support.
Is there a way that my sister can get custody of my daughter if something happens to me or at least to stop him from spending all my daughter’s money?
A.
I first want to say that I will be praying for God’s healing mercy in your situation. He is still in the
miracle working business.
It is certainly good that you are seeking to do an estate plan which is highly recommended for everyone.
In regards to your concerns with your daughter and her father, those are valid concerns but there are provisions you can make to avoid those concerns from taking place.
For example, if you have sole custody of your daughter and her father is not involved or has not asserted his rights as a father, then you can make guardianship and conservatorship provisions in your estate plan that states your wishes for your sister to have care and custody of your daughter.
While these provisions are not bulletproof and a Court could eventually award custody ofyour daughter to her dad if he pursued it through Court action, a trust would certainly alleviate any concern of her dad getting a hold of the property you intend to leave your daughter.
You can name anyone trustee of your estate and your daughter can be the sole beneficiary of the trust and your
wishes will be followed.
Children cannot receive property so in needs to be held either in trust or by a conservator until they reach the legal age to take possession of the property.
Your estate planning attorney can discuss the pros and cons of these options and assist you in making the right decision.
Q4.
My wife had a stroke and is now incapacitated.
Her family is upset with me because we do not agree on what my wife’s wishes are regarding her care.
The hospital is worried about liability so they are treating her in a manner that they feel is proper.
What can I do?
Well it is possible that the only option to resolve this matter is a guardianship and conservatorship.
Sometimes, spouses have power of attorney executed that gives authority to their spouse for such decisions.
However, if not and the hospital is not allowing you to assist in directing her care, then a Court order or guardianship will be necessary.
Typically people petition the Court for guardianship and conservatorship but only a guardianship is necessary for medical decisions.
Conservatorship deals with money or the financial aspect so it will be beneficial because medical providers often want to know who is financially responsible for the care or treatment they are providing.
If you’d be agreeable to one of her relatives serving with you in a joint capacity, Courts will sometimes allow more than one to serve as co-guardian/conservator, but it could be problematic
because it could again lead to disagreement.
If there is a conflict on who should be appointed, the law favors spouses over other relatives unless criminal background, mental history, drugs, alcoholism or some other defect disqualifies a spouse.
Q5.
I was employed at a local grocery store for several years.
During my employment, the company would allow employees to take items that were out of date/expired after they were credited by the vendors.
They even used expired inventory to supply food and other things at some company meetings and other events.
However, recently, I was terminated for theft after I was asked about taking an item, which I admitted to doing.
I was told that even though it is trash, it is still company property.
I was even denied unemployment benefits.
Is there any action I can take?
A.
It depends on whether or not there are some other factors that contributed to your termination.
Remember that employers are given great latitude on firing employees and do not necessarily need a reason to fire someone unless there is an employment contract in place that states otherwise.
There are only a few things that are protected in employment such as discrimination based on things such as race, age, gender, religion, sexual orientation and nationality to name a few.
Other things that are protected is retaliation and harassment for example.
But just because you were fired for doing something that was accepted behavior in the past does not make your
termination wrongful unless you believe that your termination was actually based on a protected status and the reason you were given is pretextual.
There is no sure way to know unless you have direct evidence of this so it is always helpful to speak with an attorney to discuss in detail the facts surrounding your termination.
In regards to being denied unemployment benefits, The state typically will deny claims when someone was terminated for what is deemed cause or misconduct.
In your case, taking the item is considered prohibited conduct that would result in a denial of benefits.
You can appeal those determinations but again it would be beneficial to speak with an attorney to see if you have a strong claim.
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