APS IH / August 2010
If an APS client appears to lack capacity and APS can find no less restrictive alternative that meets the needs of the client, then guardianship is indicated. If no family or friend is suitable and willing to serve as guardian, Human Resources Code §48.209 directs APS to refer the APS client to HHSC Guardianship Services. HHSC Guardianship Services assess the APS client to determine if the client meets the criteria for guardianship.
As part of the guardianship assessment process, HHSC must consider whether less restrictive alternatives are available that can meet the needs of the individual. In addition, if HHSC becomes aware of a family member or friend suitable and willing to serve as guardian, HHSC must allow that person to apply for guardianship, if the person can do so in a timely manner. If the client meets the criteria, HHSC applies for guardianship and serves the client directly or refers the client to a contracted guardianship program.
APS and HHSC Guardianship Services work jointly on guardianship referrals to promote positive outcomes for mutual clients.
There are two types of guardianship referrals:
• standard (see 4782 Standard Referrals to HHSC Guardianship Services and its sub-items); and
• emergency (see 4783 Emergency Referrals to HHSC Guardianship Services and its sub-items).
When to Refer to HHSC Guardianship Services
APS refers clients to HHSC Guardianship Services program when:
• the client has been found to be in a state of abuse, neglect, or financial exploitation;
• there are indicators that the client is incapacitated as defined by Texas Estates Code §1002.017;
• the client is at high or medium risk of abuse, neglect, or financial exploitation;
• there are indicators that less restrictive alternatives:
• have been refused by the client or family,
• are not available or adequate, or
• have failed to protect the client;
• no suitable family members or other interested parties are willing or able to serve as guardian;
• the client has:
• sufficient personal financial resources; or is eligible for federal benefits to meet his or her placement and financial needs or can be made eligible for federal benefits through use of legal spend-down procedures once a guardian is appointed; and
• guardianship may resolve the major issue that places the client at ongoing risk of abuse, neglect or financial exploitation.
When Guardianship by HHSC May Not Be Appropriate
APS or HHSC Guardianship Services may determine guardianship by HHSC is not appropriate when:
• the client is not incapacitated as defined in Texas Probate Code §601(14)(B); or
• a less restrictive alternative is identified that will meet the client’s needs;
• APS or HHSC have identified a suitable family member or friend willing and able to seek guardianship in a timely manner;
• guardianship will not protect the client from ongoing abuse, neglect, or financial exploitation or meet the needs of the individual;
• the client does not have the personal financial resources to pay for necessary care and because of immigration status is not eligible for benefits that are necessary for his or her care; or
• the client is otherwise inappropriate for guardianship.
See HHSC Guardianship Provider Handbook.
APS IH / August 2010
When APS makes a referral for guardianship, the minimum information required in the referral form should be complete. The information outlined below is the minimum information the APS specialist includes on a guardianship referral before submission to HHSC.
While some of this information may not be available at the time of an emergency referral, it should be rare that a standard referral form is missing any minimum information, as this information is routinely gathered during the scope of the APS investigation. Any minimum information not provided at the time of a standard or emergency referral must be provided within five calendar days of submitting the referral to HHSC.
Client Information and Case Findings
• client’s full name, permanent address, current location or place of residence, if different;
• IMPACT Person ID number and IMPACT case number;
• contact information for the referring APS specialist and supervisor, including phone, e-mail, and address;
• at least one validated finding of abuse, neglect, or financial exploitation;
• alleged and designated perpetrator information, if appropriate;
• date of birth;
• Social Security number, if client consents to provide it;
• driver’s license number;
• personal physician information;
• medical information (including diagnoses and whether or not guardianship has been discussed with a medical or mental health provider or other professional;
• contact person and phone number at client’s current location, if applicable; and
• whether client is believed to be a U.S. citizen or a legal resident to the U.S. entitled to receive government benefits, as indicated.
Family and Collaterals
• name and contact information for family and friends, including general background information on those who have been asked and declined to become guardian, have failed to take timely action to become guardian, or who APS believes is unsuitable or incapable to serve as guardian and the reason for this belief; and
• prior history with family members or friends caring for client, interfering with client’s care, and any validation for abuse, neglect, or financial exploitation (see 4732.2 IMPACT Background Checks).
Prior Case History and Current Problems Identified By APS
• a brief synopsis of presenting problems that indicate lack of capacity, including a statement of the recurring acts or occurrences within the preceding six-month period which support the need for guardianship,
• how guardianship will protect the client from risk of future abuse, neglect, or financial exploitation,
• a list of the problems guardianship will not resolve for the client (such as a chronically medically noncompliant person cannot be compelled by a guardian to take medication), and
• a list of the previous less restrictive interventions that were tried unsuccessfully, were successful but will no longer work, and interventions considered for the client and why APS believes those will not adequately protect the client.
APS IH / August 2010
HHSC has 70 calendar days from the receipt of a guardianship referral to determine appropriateness for guardianship and file a guardianship application. This 70-calendar day timeframe:
• applies regardless of whether the applicant is HHSC, an HHSC contractor, or a friend or relative discovered by HHSC;
• begins on the day HHSC receives the referral form from APS; and
• ends when a decision is made and a notification has been provided to APS indicating the person is not appropriate for guardianship or when a guardianship application is filed with the court.
Requests for or provision of additional information from APS does not affect the 70-day timeframe. HHSC completes the guardianship assessment within 30 calendar days unless an extension is granted by the guardianship supervisor.
APS works with HHSC to ensure information is provided to HHSC in a timely manner.
APS IH / April 2016
Unless the client is in an emergency situation, the APS specialist completes all of the following before making a standard referral to HHSC Guardianship Services.
The APS specialist:
• completes a thorough investigation and assessment of the client;
• validates at least one allegation on the Allegation Detail page;
• considers indicators of incapacity based on:
• observations of the client’s behavior, including statements or acts indicating the degree of the client’s impairment, and significant dangers or deficits in the client’s living environment that the client fails or refuses to recognize as a problem,
• certain danger factors and the Safety Decision on the Safety Assessment, and
• evidence of diminished capacity to consent to or refuse services that may be confirmed by a physician or other professional verbally or in writing;
• determines if the client is likely to remain in a state of ongoing abuse, neglect, or financial exploitation;
• determines whether or not the client’s support system appears to be adequate to protect the client from abuse, neglect, or financial exploitation;
• explores all less restrictive alternatives adequate to protect the client;
• determines if family members or other interested parties are suitable, willing, and able to serve as guardian. If a family member is identified, refer to section 4750 Relative or Other Person as Guardian;
• confirms the client has the personal financial resources, or is eligible for, or could be made eligible for federal benefits to provide for the client’s care;
• determines that guardianship may resolve all or some of the significant problems and may serve to protect the client; and
• ensures all case documentation has been entered the same day or the next day to facilitate timely sharing of information.
2410 Safety Assessment
4783 Emergency Referrals to HHSC Guardianship Services
APS IH / June 2012
If there are indicators that the client is in need of HHSC Guardianship Services, the APS specialist, supervisor, and subject matter expert (SME) follow the steps below.
The APS Specialist:
• consults with the SME regarding approval to send a standard referral to HHSC Guardianship Services;
• informs the supervisor of the decision to pursue guardianship;
• completes the APS Guardianship Referral Form as the Contact Type located on the IMPACT Contact Detail page, including:
• all minimally required information; and
• any other information known at the time of referral, such as property or bank information;
• notifies the subject matter expert that the APS Guardianship Referral Form is ready for review; and
• saves and submits the APS Guardianship Referral Form in IMPACT to the supervisor or SME for review and approval.
The Subject Matter Expert:
• reviews the APS case;
• consults with the APS specialist and, as necessary, the APS supervisor regarding the appropriateness of the guardianship referral;
• reviews the APS Guardianship Referral Form in IMPACT to ensure that all of the information is provided as required in 4781 Minimum Information for HHSC Guardianship Referrals ; and
• recommends revisions to the content entered in the APS Guardianship Referral Form, if needed.
The APS Supervisor or Subject Matter Expert:
• reviews the APS Guardianship Referral Form to ensure that all of the information is provided as required in 4781 Minimum Information for HHSC Guardianship Referrals and then:
• saves the guardianship referral form as an HTML document;
• approves the form;
• alerts the HHSC Guardianship Services supervisor by email the same day the referral is approved and includes the HTML document as an attachment;
• if necessary, within the next three business days, arranges an initial case review meeting face-to-face or by conference call with the HHSC supervisor; and
• at the case review meeting, discusses the referral with the HHSC supervisor to resolve any questions related to the referral form.
APS IH September 2014
After the APS Guardianship Referral Form is submitted to HHSC, a guardianship specialist is assigned to conduct an assessment. The APS specialist works with the HHSC Guardianship Services specialist and shares information to promote a positive outcome for the client.
Within five calendar days of submitting the guardianship referral to HHSC, the APS specialist:
• provides hard copies to HHSC via email, mail, fax, or hand delivery of any minimum required information outlined in 4781 Minimum Information for HHSC Guardianship Referrals that was left pending on the referral form or other documentation in the case file that supports the referral, such as:
• the current investigation (copy of the APS Case Review located in the Forms drop down menu on the IMPACT Case Summary page), and any relevant prior history not already provided in the referral form,
• medical assessments, determination of intellectual disabilities, medical records, and
• financial information; and
• notifies HHSC in writing via email if any of the minimum required information cannot be provided in the five-day time frame, and reaches an agreement with HHSC as to when this information will be provided.
Ongoing Responsibilities of the APS Specialist
In addition to ensuring all minimal required information is sent to HHSC via hard copy in five calendar days, the APS specialist must:
• complete a full investigation of any additional allegations of abuse, neglect, or financial exploitation that were outstanding at the time of the guardianship referral;
• complete all additional case documentation according to policy and ensure HHSC is provided any additional case information that is relevant to the pending guardianship assessment;
• notify and provide hard copies to HHSC via email, mail, fax, or hand delivery within two business days of other important information the APS specialist obtains during the course of the investigation, such as information regarding:
• power of attorney (POA),
• bank account (name, address, phone, account numbers, balances),
• income (SSI, SSDI, RSDI, retirement, VA, and other sources);
• Medicaid number,
• medical insurance (if other than Medicare or Medicaid),
• real property,
• personal property,
• the existence and location of a will, and
• life insurance;
• complete a service authorization in IMPACT to pay for a written Certificate of Medical Examination (CME) only when requested by the HHSC Guardianship Services specialist or HHSC Guardianship Services supervisor;
• provide an affidavit for the guardianship application, if requested by HHSC, within five calendar days;
• attend the guardianship hearing without a subpoena, if requested by HHSC;
• remain responsible for routine case actions until HHSC Guardianship Services or a HHSC-contracted guardianship service program has taken the oath of guardianship or the situation is otherwise resolved; and
• close the service delivery stage (Maintenance or Intensive Case Services) by selecting the Referred to other agency closure code on the Stage Closure page in IMPACT.
IMPACT FYI Approve or Reject a Task
IMPACT FYI Add an Approval
HHSC Guardianship Provider Handbook: Section 1000, A Referral to Guardianship Contractor's Procedures
4733 Attendance at Guardianship Hearing
APS IH / June 2012
The APS specialist accesses the APS Guardianship Referral Form located in the Contact Type drop down box on the Contact Detail page in the IMPACT system. The APS specialist:
• addresses all sections of the guardianship referral form in IMPACT if the information is known at the time of referral;
• leaves the section blank if certain information is not known at the time of referral; and
• provides HHSC with any minimum required information that is left blank within five calendar days of sending the referral form to HHSC. If the information does not exist or cannot be obtained in that timeframe, the APS specialist, supervisor, or subject matter expert (SME) must notify HHSC in writing via email. The APS specialist, supervisor, or SME notifies HHSC as soon as APS is aware that the information cannot be provided within five calendar days.
4781 Minimum Information for HHSC Guardianship Referrals
4782.2 Procedure for Staffing and Completing a Standard Referral to HHSC Guardianship Services