Author Archives: Lynn Foster

How to Make Things Easier on Your Loved Ones!

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Many people say, ” I will take care of things like my will and power of attorney when I get older”, this is not a good plan to protect your loved ones. Things happen to people even if young and healthy.

If you have young kids it is definitely important to have a will so you can be sure everything goes to your kids or who ever you want if you are gone, at what age your child will get full control of the assets, who will controll the funds until they reach that age and who will be the guardian of your kids if both parents are gone.

If you make a will you can choose who you want to be guardians of your kids if you and the other parent are gone. This is important otherwise someone who you do not want to raise your child could be the one who applies to be guardian and is approved by the court. You also can dictate at what age your child will get what ever assets are left to them. If you do not have a will and you have a child under 18 the money may go into the registry of the court were it will earn a very minimal amout and is hard to access when needed. Then when they turn 18 they get what ever is there to use how ever they want to spend it. If you have a will you can have a trust setup to hold the assets and you choose the person to be trustee. The trustee will be able to invest the money and will be able to give money to your child as needed.

It is also very important to have a will if you have children from a previous relationship. With no will it can get very complicated and the person you are currently married to could get cut out of assets you may want them to have. It requires more time in court which is more money your estate must pay. The heirs must be determined and the percentage to each heir is determined by statute, not by you. If you have separate real property that property may go to your child, even if a child of your current spouse. Your spouse may have to put up a bond and do annual accountings until the child turns 18. This can cause more expense and be more time consuming in a situation that is already difficult for the surviving spouse.

No matter your age it is wise to have powers of attorney. Medical POA will give the person you designate the ability to make decisions about your medical care if you are incapacitated. This is important as you get to choose the person who will make decisions. The financial POA is also important and very powerful. The person designated can basically do anything you could do if you were able. It is important that you make the financial POA effective only upon disability unless there is some specific need, and it should be limited to only that need. If you do not have these documents and become incapacitated then someone will mostly likely have to file for guardianship, which can get very expensive and is very restrictive.

If you have children who are 18 or older and they go off to college it is important to get them to sign a medical power of attorney. Even if you still pay 100% of their bills, the hospital or other medical providers will not give you any information or let you make a decision. If your child who is 18 or older was away somewhere and has an accident and they end up incapacitated and unable to communicate, the Dr or other medical personnel will not be able to give you any information about them without a medical power of attorney due to HIPPA laws. It is already a scary situation that can be made worse by not being able to get information or make decisions.

There is also a newer document that is a “Transfer on Death Deed”. This is a deed that is drafted, signed and filed while you are still alive. The document only becomes effective if on file when you die. It is also revokable so if you change your mind on who the property should go to upon your death, you can revoke it. If revoked prior to your death then it does nothing. This document is great to transfer interest to a spouse upon your death so they do not need to probate to have the property in their name. It also works well to transfer to children upon death of the last parent without the need for probate.

These are several things to consider to make things easier on your loved ones when you die. It is hard enough losing the ones we love, and the emotional hardship of the loss can be magnified if they do not have the documents in place to take care of the finances and property.

DWI Consequenses

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DWI ISSUES TO CONSIDER

We at the Foster Law Firm do not promote people driving while intoxicated. The law in Texas does allow someone to drink and then drive if they are not intoxicated. Intoxicated in Texas means having lost the normal use of your mental or physical faculties due to the consumption of alcohol or if you have a blood alcohol level of .08 or higher. It is up to individuals to make the decision if they have had too much to drink and it has affected their abilities. Even if you think it hasn’t, it is still possible and you could suffer the consequences of being arrested for DWI. These consequences can be very sever depending on the charge. We will discuss some of these consequences and things to consider if you do decide to drive after you have been drinking. The best option to avoid these penalties is to not drink and drive at all.

When someone is stopped for a legal reason and suspected of having consumed alcohol that is when the DWI investigation begins. The reason for the stop can vary from speeding to your license plate light not working and all things in between. You should always check your car to confirm all lights are working including, tail lights, brake lights, head lights, and the light on your license plate. Be sure your inspection is up to date. The reason to believe you might be intoxicated could be the way you were driving along with an odor of alcohol or even just the odor of alcohol when the officer comes to the vehicle. Everything from this point on can be critical to your future and the charges that can be filed.

If you are pulled over after you have been drinking, the first thing to know is, you do not have to answer any questions. Always be polite and cooperative with law enforcement, they are just doing their job. However, this does not mean that you have to answer questions about consuming alcohol, where you are coming from, etc. You may tell the officer you are exercising your right to remain silent. You can refuse to do the balance tests, also known as a field sobriety test. They will most likely ask you to follow a pen. If you have been drinking your best choice is to be polite and refuse any test including, following of the pen or other object, the walking test, and one leg stand. If you do these tests, they will be used against you at a later trial. If you are stoped and they smell alcohol, you are most likely going to jail no matter how well you do on the test. If you refuse, they will proceed to arrest you by placing you in handcuffs and put you in their car. Please just be polite and cooperative and you will have the ability to dispute your case later. If you get angry or belligerent that will also be used against you. Be aware there is most likely a camera in the car recording video and audio of you. The best advise is to no talk, make faces or fall asleep.

Once arrested they may read you the statutory warning and ask you to take a blood or breath test. You again have the right refuse the test. If you refuse, your license may be suspended. I say may because as long as you request a hearing within 15 days of your arrest you can challenge the suspension. IT IS VERY IMPORTANT THAT YOU HIRE AN ATTORNEY IMMEDIATELY to preserve this valuable right. Your license will most likely get suspended but there are times when it does not for various reasons. If you take the test and fail it you will also most likely be suspended. If you have been drinking it is best not to take the test. They then have the ability to get a warrant and take a blood test if they choose. Again, let them do that because sometimes, they make mistakes in the process. If you agree to take the test you have waived many important rights.

There are also other consequences of taking the test. If you take the test consensually or by warrant, and it is .15 or higher your first time DWI is moved from a class B misdemeanor to a class A misdemeanor. This adjusts the range of punishment. Many counties are also now offering pretrial diversions programs for first time offenders however if the test amount is .15 or higher you may be disqualified. This is a very good reason not to take the test and risk disqualifying your self from this very important program. The PT diversion program is a great program that allows your case to eventually be dismissed if you complete the program.

If you have been arrested and taken to the jail it is important to continue to assert your rights not to answer questions other than your name. You have the right to not incriminate yourself and to not do any tests you are asked to take. You also should not discuss your matter with anyone in the jail including other inmates and guards. If you make a phone call to someone, remember that calls are recorded, so again do not say anything that could hurt your case. They do listen to these recordings and they do you use them against you.

Just remember, it is best to not drive if you are intoxicated or maybe drinking at all. If you are pulled over, be polite and cooperative with the officer but remember to not give up your rights and contact an attorney immediately after your arrest.

Why every adult in Texas should have a Will!

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By: Lynn Foster and Lonnie Foster

Everyone in Texas who has attained the age of eighteen or who is or has been lawfully married, or who is a member of the armed forces of the United States  or of the  auxiliaries thereof or of the maritime service at the time the will is made, being of sound mind should consider a Will regardless of age.

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Family Law – why it is important to consult an attorney

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Legal matters dealing with family law are very important and decisions made can affect the rest of your life. Some decisions made and agreements reached can not be changed later.  Issues involving property division are typically final once signed by the Judge and the time for appeal has passed.  This means you may not be able to go back and change a property division even if your spouse promised he would do something different than what is in the decree.  Issues of who has the right to claim a child on taxes can become permanent and even if custody changes it might not be able to be changed.

Depending on how the decree is worded you might be giving up rights to property you do not even realize  exists.  You may be barred from going after that property unless the decree is written to allow you to go after undisclosed property.  Texas requires a just and equitable division of property, this does not always mean it should be split  50/50.  We will post another blog later about things to consider when dividing property.

When it comes to issues with the children, such as support and visitation and access, these things are subject to modification. There must however be a material and substantial change to be able to request that change.  If there are some bad facts from the divorce they will in most cases be barred from evidence in a modification.  Modification typically deals with what has happened since the last final order.  This makes it important to consult with an attorney on issues of visitation, access and support prior to signing something.  Many times I have met with someone who already signed an agreed Final Decree of Divorce which has been signed by the judge.  They say they where told by the ex spouse they would do or allow something event though the decree says differently.  The ex spouse then uses that leverage when dealing with child related issues or just does not follow thought with it.  I then have to explain to them I will most likely not be able to fix the issue with out some substantial change since that last order.

It is also always important to follow the order when it relates to how and when to pay child support, and when and where exchange of the child will happen. If you make any changes to the drop off and pickup always do it in writing. We will have a blog in more detail about issues with paying child support in a way that is different from the order and how to handle visitaion issues when one party is not following the order.

There are many vital issues in the Final Decree of Divorce that if not done correctly, you may be stuck with for remainder of the years the child is a minor. In the event of property issues you may be stuck with it forever.

Please always consult an attorney on any legal issues.  This is why we offer a free consultation so people can come see us and get some basic advice without creating that attorney client relationship.

Covid 19 – Corona virus – precautions being taken

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Your protection and that of our staff is our primary focus. As the Coronavirus situation unfolds, we want to let you know we are taking measures to sanitize the office and bathrooms each day. If you would like to talk to an attorney we are still taking appointments in the office as before. If you would like to talk to any attorney about an issue but do not want to come to the office we are offering face-time consultations or phone consultations. Please just let us know how we can help.

If you have been exposed to the virus or have been told to self quarantine then we ask that you not come to the office but utilize the face-time or phone consultation. We have the ability to conduct business by email as it relates to paper work or payments.

ADVICE TO Citizens WHEN QUESTIONED BY POLICE

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This information is for citizens and is not intended to be any legal advice but to inform citizens of the problems they face when they come in contact with police who are questioning them about a serious crime.

Any questions about this should be discussed with your lawyer. Due to the ruling  in Texas, Salinas v Texas, the law has changed regarding the right to invoke your Fifth Amendment rights under the United States Constitution and the Texas Constitution by remaining silent when questioned by the police. Just not answering a police officers questions and remaining silent does not protect your right to the Fifth Amendment, you must specifically invoke your right to remain silent.

The advice that an attorney has told you in the past:

“don’t answer any questions if the police contact you.”

Is not sufficient now to rely upon the Fifth Amendment to protect your right to speak to the police. Some advice an attorney may tell you in the event of a DWI stop , once the alcohol questions below start may be proper:

“If I am free to leave, I would like to leave?”

If the answer is that you are not free to leave, then the following would be a good answer:

“I will not answer any questions or take any tests with out my lawyer present”.

You should then remain silent to any questioning and if you say anything insist on having your lawyer present.  You have the right to refuse the road side tests. As to the request to take the breath test it is best just to say : “I would like to consult with my lawyer and I will do what he says”. Although this will be taken by the officer as a refusal a jury may think this is a proper request .

DWI – How your decisions can affect your ability to get a Pretial Diversion

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Many counties in Texas have started pretrial diversion programs for first time DWI’s.  Fort Bend and Harris County have these such programs. We practice in both of these and other surrounding counties and  have reviewed these programs.  Fort Bend County has a program that is newer and came in with the new District Attorney.

Both programs offer the ability to  have your DWI dismissed and the records expunged if you successfully qualify and complete the program.  There are restrictions that are similar to both programs. There was also a change in the law dealing with the expunction of DWI convictions and other convictions in the past under certain circumstances. We will have an article on that later.

There can not have been an accident, even a single car accident.  In Fort Bend County if there is an accident involved then you can possibly qualify for the DWI court but will not be able to get into the DA PT program.

If there was a breath test or blood test there is a limit on how high it can be to qualify for the DA PT program.  Harris County has a threshold of .15, anything over that does not automatically qualify for the program.  If it is over that amount you may still apply but will be a case by case basis and requirers some other special circumstance.  Fort Bend  County has its limit set at .12 but again you may still apply and it can be reviewed to see if possible to accept.  It would again take some special circumstance especially since there is the DWI court which also offers dismissal for first offense in most cases.

Both programs are also limited by not having any alcohol related priors. Even if your  alcohol related prior was not a conviction it will still probably preclude you from eligibility.

It never hurts to ask for these programs even if not automatically qualified.

The important thing to remember based on these requirements is that you are better off not taking the breath or blood test so you do not risk being over the threshold limit.  The ability to get into one of these programs is huge and you might disqualify yourself if you take the test.  This would mean someone who is actually over the alcohol level you are at might get the benefit of the program just by refusing the test.

You are also better off not taking the test because if you are .15 or higher you 1st time DWI would be a Class A misdemeanor and you would have a mandatory interlock on your vehicle as a condition of bond.  The state administrative fee’s would also be higher if you are convicted.

Always be polite and cooperative, but remember you are not required to do any of the road sided tests, including the eye test (HGN), walk and turn, one leg stand or any other test they may ask you to perform.  However if you refuse all roadside tests this could affect your ability to get into the program in some counties.  This includes normal things like saying your ABC’s or touching your fingers to you thumb in a pattern.  You are also not required to submit to a breath or blood test, your license may be suspended if you refuse just as it may if you blow over .08.  You must seek an attorney immediately if you get arrested. You must have a request filed with in 15 days of the arrest to challenge the suspension.  Even if your court date is not for weeks or even months you have time periods that run immediately.

DWI general issues

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Over the past few years, the state of Texas has been buckling down on drunk driving. Many of the DWIs during the year are recorded around the holidays, especially the fourth of July, Christmas and New Years Eve. Not everyone arrested for DWI is intoxicated, to help those out who are not intoxicated and those who are, we at Foster Law Firm are dedicated to handle DWI cases for all of our clients. Don’t get unfairly lumped into the statistics. Just because you had something to drink and drove a car does not mean that you have broken the law. The law is that you can not be intoxicated and operate a motor vehicle in a public place. You, by law can drink and drive so long as you are not intoxicated. This means that you have a blood alcohol concentration of .08 or higher or you have lost the normal use of your mental and physical faculties due to the introduction of alcohol, drugs or a combination thereof. Continue reading →

Alcohol Charge can Alter a Kid’s Life

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By: Logene Foster

Parents, students in high school and college should be aware of the law on Minor in Possession of Alcohol as it carries some serious consequences. Minor in Possession of Alcohol is being illegally in possession, ownership or control of an alcoholic beverage. This involves “constructive possession” Constructive possession may exist:

  1. A minor sits at a table with several people who are drinking from a pitcher of beer.
  2. A minor gathers empty beer cans and cups to discard.
  3. A minor holds a friends beer as the friend puts on his jacket.
  4. A minor uses a beer can as a spittoon for tobacco juice.

This law covers all individuals under 21 years of age. It further provides for a fine of not more than $500.00, community service for not less than 20 hours or more than 40 hours. In addition if convicted can be a suspension of drivers license for 30 days. If the minor has 2 or more prior convictions for this same offense then the punishment is a fine of not less than $250.00 or more than $2000.00 and/or confinement in jail not to exceed 6 months. If there is one prior conviction community service is not less than 20 hours or more than 40 hours. The suspension of drivers license is for 60 days if one prior conviction or if 2 prior convictions the Drivers License suspension can be for 6 months. A conviction or even a charge for MIP can cause a student to loose a scholarship he already has or cause a scholarship offer to be withdrawn. A student can also lose the ability to play a sport even if they have been previously offered a spot on the team. Grant money could possibly be taken away from a student who is convicted of MIP.

When a Child Turns 17 in Texas

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In Texas it seems to be very complicated as to what happens to a child when they turn 17. In the eyes of the criminal courts they are treated as an adult and prosecuted as an adult.  In the Family court they are still under the courts control as a child until they turn 18.  The big problem comes when a child turns 17 and leaves on parents house, against that parents will, and goes to live with the other parent or some other adult, maybe even an adult boyfriend or girlfriend. The police typically will not get involved and will tell you it is a civil matter.  I have although experienced that some agencies will actually go to the house where the 17 year old is and threaten to take them to juvenile detention if they do not go back.  I have not seen too many District Attorney’s here in the Sugar Land, Fort Bend County Texas area excited to file a runaway charge on a 17 year old. When they go to the other parents house it creates two problems.  The first problem is dealing with the police and the issue of possibly harboring a runaway.  I think it is  very difficult argument to make that you should turn your own child out in the street.  The second problem is the possible ramifications in the family court.  The court order, if one is in place, still controlls till the child turn 18.  The court can summons the child to court to talk to them, and I suppose even charge them with contempt of court if they refuse to follow the court order.  The parent could be held in contempt if they are encouraging the child to come and stay.  I think the parents job is to encourage the child to go back to the other parent and make the child available to the other parent to allow them to convice the child to come back.  This is all in theory and with a 17 year old it is nearly impossible to get them back if they are set on not going back and are not willing to follow the parents instructions, which is an issue for a whole other blog. When the child goes to stay with some other adult, such as a friends parent or with an adult boyfriend that is where the adult could be setting themselves up for possible criminal penalties.   I have not had any cases where the police or the district attorney’s office have actually pursued an adult who offered shelter to a 17 year old.  The best thing the adult can do is make the child available to the police or the parent to attempt to get them to go back.  If they try to hide them or refuse access then that tends to get the authorities wanting to flex some power. Let me know what you think or what your experiences have been from the parent side, the child side, the adult who takes one in, the police side or attorney’s who have had experience with it.