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Pongratz Law, P.C.




Interesting Information for You

1. The Lawyer and the Family
2. Are you really entitled to a free lawyer?
3. Marijuana in Maine: Just say “know”
4. When it comes to legal documents, do like the Boy Scouts

1. The Lawyer and the Family
     No one truly understands the catastrophic mess that life becomes when a marriage or union comes to an end, a home is broken up, and kids are left dangling in the middle.  Unless, of course, it's your marriage, your home, and your kids.  You then most certainly become quickly acquainted with the living nightmare that a family breakup brings about.
     Unless one has gone through this before, there simply is no way prepare.  If and when you do find yourself in this situation, the many mixed feelings and uncertainties suddenly before you can easily become overwhelming, adding stress and anxiety to a period of your life that already has you on the brink of emotional collapse.
     Many people in this situation are pleasantly surprised to learn, and to experience, that this sense of being overwhelmed, and the stress that it brings about, is to a large extent the result of the unknowns suddenly present in your life.  Personal and family concerns like how you will earn a living, where will you live, where will the kids go, how will your family interact, or how will you cope are mixed with legal questions like where do I begin, how long will this take, what will I have to do, and how much will it cost.
     This is where a lawyer comes into the picture.
     Of course, obtaining counsel will help you navigate through the court process and likely increase the likelihood of obtaining a better result in your case.  But the most immediately beneficial result of a visit to a family law attorney will be the measure of relief and comfort you experience merely by becoming informed.   No, your first visit will not decide who gets what or most of the other substantive issues involved in your divorce or separation case.  But knowledge is power and being informed will give you the power to make better choices, the power to plan for the long term and the power to understand that this too shall pass.

2. Are you really entitled to a free lawyer?
   So you have to go to court.  You’re involved in a law suit or maybe you have been arrested and you are being charged with a crime.  Maybe you want to get a restraining order against your threatening neighbor or maybe you just simply want to change your name.  You may not be an expert on the Constitution but everyone has heard things like “you have the right to remain silent” or “you’re entitled to an attorney”.  So, when are you really entitled to an attorney provided to you at no cost? Well, the answer, for better or worse, is “only in very specific circumstances.” 
     For most people, the idea of a free attorney is most often associated with criminal cases, when someone is charged with a crime.  This in fact turns out to be the case most of the time, though in addition to criminal cases, counsel can also be appointed in juvenile cases, child protective cases, involuntary commitment cases, and emancipation cases.  In many states, such a free attorney is known as a “public defender”.   In Maine, however, such attorneys are actually called “court-appointed counsel” and are provided by the Maine Commission on Indigent Legal Services-- if, and when, a judge orders it.  Court-appointed counsel is not available for most legal cases, such as civil lawsuits, family matters such as divorce, protection orders, foreclosures, or small claims.
     But just because a person is involved in one of the above qualifying types of cases does not guarantee a free lawyer.  The court will also require that the person fill out some papers and provide information about his or her financial situation in order for the judge to determine whether an attorney will be appointed and, if appointed, whether some or all of the cost will have to be repaid by the person.
     In criminal cases there is an additional requirement and that is that the charge being brought against the defendant could result in jail time.  If the District Attorney is not looking for jail time, then court-appointed counsel is not available to the defendant. 
     Lastly, note that although no court can require a person to be represented by an attorney at any court procedure, it is typically advisable to be represented by counsel in most court cases.  Determining whether you need legal representation will always be easier that finding the right attorney for you.  That’s the bigger challenge.

3. Marijuana in Maine: Just say “know”
     You have been reading and hearing about medical marijuana for some time now.  More recently, you have probably also heard about (and voted on) the referendum questions on the so-called legalization of marijuana in Maine and, separately, in Massachusetts.  But where exactly are we on these issues?
     Medical marijuana is currently legal in Maine and in Massachusetts.  With a medical marijuana ID card, you can legally possess and use marijuana.  Qualifying medical conditions include Alzheimer’s, cancer, glaucoma, nausea, chronic pain and PTSD, among numerous others.  If you qualify, you can possess up to a certain amount of l mature plants.
     If you have to get your marijuana on the market (as compared to growing your own), the law allows for “dispensaries” to sell it to you.  A dispensary is a fancy word for “store.”  If you qualify to use medical marijuana but you require assistance, you can appoint a caregiver who is authorized to grow, buy or possess the marijuana for your benefit.  This person must be at least 21 years old and has to qualify to be a caregiver- and you can only designate one caregiver. 
     For those travelling into Maine or Massachusetts, if you are a resident of another state and have a marijuana card from your home state, then that card authorizes you to use and possess marijuana for a limited period of time after arriving.  After that, you need to qualify for and get a local card. Be warned, however, that all marijuana and marijuana products purchased in one state must be consumed in that state. It is illegal to cross state lines with marijuana.
     As for recreational marijuana, voters in both states legalized it by referendum, and so it is now legal to possess and use marijuana recreationally if you are at least 21 years old.  Smoking marijuana in public remains prohibited.
          Lastly, and most importantly, if you choose to use marijuana, don’t forget it is an intoxicant.  Treat it like alcohol when it comes to restricting your activity once you consume it.  You can be convicted of an OUI/DWI criminal offense for driving under the influence of marijuana.

        If you are interested in the topic of medical marijuana, you can read an extensive paper I wrote dealing with the history of marijuana and its regulation in the United States, leading up to the first attempts at decriminalization of medical marijuana in the 1990s.   You’ll find it at http://digitalcommons.law.wne.edu/lawreview/vol25/iss1/4

4. When it comes to legal documents, do like the Boy Scouts
    Be prepared. 
     I often advise clients to make sure they have a good Will and a Power of Attorney in place-- just in case.  They do say life happens while we’re busy making plans...
      I have had the unfortunate experience in the past of clients coming into my office trying to deal with the emotional turmoil caused by a death in the family while also having to deal with the decedent’s affairs not being in order.  This truly is an area where an ounce of prevention is worth a pound of cure.  Every person should have a valid Last Will and Testament, preferably executed after meeting with an attorney and evaluating his or her particular circumstances, wishes, assets, etc.  Spending a little bit of money and effort on a properly drafted and executed Will can save a lot of money and effort later in legal disputes and probate proceedings.
     An effective Will identifies the person authorized to distribute the estate (the assets owned by the decedent).  This person is called the Personal Representative (also known as the executor).  An effective Will should also clearly identify what specific items are devised (left) to what specific persons or entities.  Sometimes, a testator (the person making the Will) just leaves everything to a surviving spouse, and that’s perfectly fine.  A Will does not have to be complicated to be legally enforceable and actionable.  Preparing and executing an effective Last Will and Testament is an important issue to discuss with your attorney.
     A Will should identify back-ups to the person or persons named as devisees (receiving inheritance).  For example, if you leave your car to Joe, you may also state that you leave it to Peter if Joe predeceases you (dies before you).  Backing devisees up can remove difficult ambiguities down the line.
     If you own a home, ensuring that the ownership deed lists you along with at least one other person as “joint tenants” will remove the need to go to probate court upon the testator’s death for the purpose of transferring ownership.  Oversight of this simple issue often leads to wasted resources in probate court required for a formal transfer.  You can own your home as a “joint tenant” with your spouse, son or daughter, or just about anyone else you chose.  Holding a deed in joint tenancy and how this may benefit you is also an important issue to discuss with your attorney. 
     More often, the situation arises when having someone do something on your behalf would be quite convenient, maybe even essential.  It may be that you are home, ill and unable to get out of bed, and need money withdrawn from your bank account. Or perhaps you’re just on vacation out of state and need a document signed at home in Maine.  Having previously executed a Power of Attorney will allow a person you have chosen (who is known as your “attorney-in-fact”) to do on your behalf almost anything you could do in person.  The moment you need it, it will be worth its weight in gold.  Preparing and executing a Power of Attorney is yet another important matter you should discuss with your attorney.
    Next, if you should find yourself in the hospital and you enter into a state where you can no longer, temporarily or permanently, communicate instructions and wishes to medical professionals, it will be important for you to have previously executed a medical power of attorney (known also as an Appointment of Health Care Agent).  This appointed agent will have the authority to make decisions on your behalf in the medical context (such as what medicine to accept or what hospital to be in).  This person will also be entitled to request and receive your medical records, which are otherwise often shielded from everyone by privacy laws.  The preparation and execution of a medical power of attorney is another important document you should discuss with your lawyer.
     Even in the business context, being prepared pays off.  Whether ensuring that a contract to build your house properly protects your interests as a consumer, or that your contractor agreement to remodel a client’s bathroom actually complies with Maine law, or that your lease properly spells out the rental agreement you want, preparing and executing the right document with the necessary language can save untold hardship and expense later.
     So when it comes to legal documents, do like the Boy Scouts, and be prepared!