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In re Guardianship of Garcia

Court of Appeals of Texas, Fourth District, San Antonio

April 26, 2017

IN THE GUARDIANSHIP OF GEORGE V. GARCIA, an Incapacitated Person

         From 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.

          MEMORANDUM OPINION

          Rebeca C. Martinez, Justice.

         Appellant 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 court.

         Background

         On 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.[1] 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.

         On 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.[2] 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.

         Norris 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.

         On June 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.

         On July 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 services included:

• Supervising visits between incapacitated person and sons;
• Attending scheduled medical appointments with proposed ward;
• Scheduling medical appointments for incapacitated person;
• Third-party medical consultation meetings;
• Directing the caretakers to create daily notes of the proposed ward's ...

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