Court of Appeals of Texas, Fourth District, San Antonio
IN THE GUARDIANSHIP OF GEORGE V. GARCIA, an Incapacitated Person
the County Court at Law No. 2, Webb County, Texas Trial Court
No. 2015PB6000016 L2 Honorable Jesus Garza, Judge Presiding
Sitting: Karen Angelini, Justice. Marialyn Barnard, Justice,
Rebeca C. Martinez, Justice.
C. Martinez, Justice.
Fred Vincent Garcia Norris challenges several orders
approving payment of fees to the attorney ad litem and
guardian ad litem/guardian of the person in the underlying
contested guardianship case. We reverse the November 23, 2015
order as well as the two orders dated December 11, 2015 as
they pertain to the fees awarded to Mary G. Capello and
remand the case to the trial court for further proceedings.
In all other respects, we affirm the judgments of the trial
February 17, 2015, Cynthia Garcia filed an "Application
for Appointment of Permanent Guardian of the Person and
Estate" seeking to be appointed guardian of the person
and estate of her father, 82-year-old Dr. George V.
Garcia. Dr. Garcia was diagnosed
with advanced Alzheimer's disease a year prior to the
filing. The same day, Cynthia also filed a "Motion for
Appointment of Attorney Ad Litem" seeking the
appointment of an attorney ad litem for her father.
March 3, 2015, the trial court signed an order appointing
Julio Arnoldo Garcia, Jr. as attorney ad litem to represent
Dr. Garcia in connection with Cynthia's guardianship
application. Attorney ad litem Garcia subsequently filed
three applications for ad litem fees. On May 12, 2015, he
filed an "Amended Application for Interim Attorney
Ad-Litem Fees" pursuant to sections 34A and 665A of the
Probate Code. Garcia requested
$12, 000 in compensation for the over 40 hours ($300/hour) he
had spent working on the case since his appointment on March
3, 2015. On May 19, 2015, the trial court signed an order
approving the entire amount of fees requested. On June 29,
2015, attorney ad litem Garcia filed an "Application for
Interim Attorney Ad-Litem Fees" pursuant to sections 34A
and 665A of the Probate Code. Garcia requested $7, 620 in
compensation for the over 25.4 hours ($300/hour) he had spent
working on the case from May 12, 2015 through June 26, 2015.
The trial court signed an order approving the fees in their
entirety on June 8, 2015. On November 24, 2015, Julio Garcia
filed an "Application for Interim Attorney Ad-Litem Fees
and Reimbursement of Court Costs and Filing Fees"
seeking $23, 250 for work performed from June 27, 2015
through November 23, 2015, as well as reimbursement of court
costs and filing fees of $114.21. The trial court granted the
third application for fees and signed an order awarding
Garcia the entire amount of fees and expenses requested on
December 11, 2015.
filed a motion requesting the temporary appointment of a
guardian of the person of Dr. Garcia. At a motions hearing
held on May 12, 2015, the trial court stated on the record
that it was appointing Mary Capello "guardian of the
person of Dr. Garcia." Although unclear, on May 15,
2015, the trial court signed an order appointing Mary Capello
as "guardian ad litem of the person"for Dr. Garcia
and set a bond. Within days of the order, Capello took the
Oath of Guardian, swearing to "discharge faithfully the
duties of Guardian of the Person" and paid a bond as
"Guardian of the Person" in the amount of $1, 000.
See Tex. Est. Code Ann. §§ 1105.051(a),
1105.101(a) (West 2014). In a subsequent order signed on
November 23, 2015, the trial court referred to Capello as
"Guardian ad litem of the person/guardian of the
person." It thus appears that Capello served a dual role
as both guardian of the person and guardian ad litem.
5, 2015, Capello filed an application for fees under section
645(b) of the Probate Code requesting $9, 477.50 in
compensation for the time she and her legal assistant had
spent working on the case. Her hourly rate was $275.00
"for guardianship services" and $40/hour for work
performed by her staff. Attached to the motion was an
itemized statement of services and fees; the services
performed by Capello included: reviewing pleadings filed by
the litigants; reviewing records and reports; meeting with
the proposed ward's physicians; accompanying the proposed
ward to the hospital in emergencies; participating in weekly
out-of-court visits with the proposed ward and two of the
litigants; and telephonic meetings with the litigants, the
proposed ward's physician, caretakers, members of his
immediate family, and other relevant witnesses. The trial
court signed an order approving the fees in their entirety.
23, 2015, Capello filed a "Motion for Guardian of the
Person Fees" pursuant to section 645(b) of the Probate
Code. She requested $10, 725 in compensation for the over 40
hours ($275/hour for her legal work as an attorney and
$40/hour for work performed by her staff) she and her staff
had spent working on the case since June 6, 2015. Attached to
the motion was a sworn statement of services and fees; the
• Supervising visits between incapacitated person and
• Attending scheduled medical appointments with proposed
• Scheduling medical appointments for incapacitated
• Third-party medical consultation meetings;
• Directing the caretakers to create daily notes of the
proposed ward's ...