Texas Administrative Code › Title 26 - HEALTH AND HUMAN SERVICES › Part 1 - HEALTH AND HUMAN SERVICES COMMISSION › Chapter 361 - GUARDIANSHIP SERVICES › Subchapter B - ELIGIBILITY AND ASSESSMENT OF INDIVIDUALS FOR GUARDIANSHIP SERVICES › Section 361.23 - Assessment

Current through Reg. 49, No. 28; July 12, 2024
(a) An assessment
				  begins with the referral of an individual from either the Child Protective
				  Services Division or the Adult Protective Services Division of DFPS.
(b) The DADS Guardianship Services Program
				  considers the conditions and circumstances of the elderly or disabled
				  individual, as documented by DFPS and through DADS own review process, to
				  determine whether a less restrictive alternative to guardianship is appropriate
				  and available. If an appropriate, less restrictive alternative is identified
				  and available, the DADS Guardianship Services Program either arranges for this
				  alternative or provides a recommendation to DFPS to pursue the
				  alternative.
(c) If a less
				  restrictive alternative is not appropriate and available, the DADS Guardianship
				  Services Program conducts an assessment to determine if the individual appears
				  to lack capacity. If the DADS Guardianship Services Program's assessment
				  concludes that the individual appears to lack capacity, the DADS Guardianship
				  Services Program arranges for a qualified physician to examine the individual
				  and provide a Certificate of Medical Examination (CME). If the basis of the
				  alleged incapacity is intellectual disability , the DADS Guardianship Services
				  Program arranges for a determination of intellectual disability (DID)
				  .
(d) If the CME states that the
				  individual is incapacitated and guardianship is appropriate, or the DID states
				  that the individual meets the criteria for a diagnosis of intellectual
				  disability as the basis of incapacity and guardianship is appropriate, the DADS
				  Guardianship Services Program attempts to identify a person or a guardianship
				  program who is willing, able, and suitable to serve as guardian and requests
				  that the person or guardianship program file an application for guardianship.
				  If no such person or program can be identified, the DADS Guardianship Services
				  Program files an application with the court that has probate jurisdiction in
				  the county in which the individual resides. Only a court with probate
				  jurisdiction may make the legal finding that an individual is an incapacitated
				  person.
(e) At the completion of
				  the assessment, the DADS Guardianship Services Program notifies DFPS, or the
				  court if the assessment was done in response to the court's request, of the
				  outcome of the assessment.
(f) If
				  DFPS makes a referral to a probate court or the court appoints DADS as guardian
				  through a court-initiated guardianship proceeding under Texas Estates Code,
				  §1102.001 , or both, the DADS Guardianship Services Program conducts an
				  abbreviated assessment to determine if the individual is eligible for the DADS
				  Guardianship Services Program. If the individual is not eligible for the DADS
				  Guardianship Services Program, the DADS Guardianship Services Program files
				  appropriate pleadings to rescind or reverse the appointment that state the
				  reasons that DADS may not be appointed guardian.