APS-IH / February 2009
A guardian is a person or entity appointed by the probate court to have full or limited authority over an incapacitated person, depending on the incapacitated person’s specific mental or physical limitations. The purpose of the appointment and the role of the guardian is to protect and promote the well-being of the incapacitated person. An incapacitated person is defined by Texas Estates Code §1002.017 as an adult individual who, because of a physical or mental condition, is substantially unable to:
• provide the person’s own food, clothing, or shelter;
• care for the individual’s own physical health; or
• manage the individual’s own financial affairs.
APS-IH / February 2009
The court may appoint a person or entity as guardian of the person or the estate, or both. A guardian of the person is responsible for the health, well-being, and personal needs of the ward, while a guardian of the estate is responsible for managing the assets of the ward.
APS-IH / February 2009
Guardianships may be temporary or permanent. A temporary guardianship is created only in an emergency in which there is imminent danger to the ward, his or her estate, or both. A temporary guardianship expires after 60 days, unless extended by the court. A permanent guardianship remains in effect indefinitely until the ward dies or the guardianship is terminated by the court.
APS-IH / February 2009
Texas Estates Code §1104.102 specifies the following order of preference for appointment of guardian:
• the spouse;
• the nearest kin; or
• any other person acceptable to the court, if either the spouse or the nearest kin is disqualified or refuses to serve.
Before asking a family member or other person to consider serving as guardian of a client, APS specialist must determine whether the spouse, nearest kin, or other interested party:
• is willing to serve;
• would act in the wards best interest; and
• appears to be appropriate as defined by Texas Estates Code.
APS-IH / February 2009
In accordance with Texas Estates Code §1104, a person is disqualified to be appointed as guardian if the person is:
• a minor;
• a person whose conduct is notoriously bad;
• an incapacitated person;
• a person who is a party or whose parent is a party to a lawsuit concerning the welfare of the proposed ward;
• a person indebted to the proposed ward, unless the debt is paid before appointment as guardian;
• a person asserting a claim adverse to the proposed ward or the ward’s property;
• a person who, because of lack of experience or education, is incapable of properly managing the ward or the ward’s estate;
• a person disqualified in a Declaration in Advance of Need made under Texas Estates Code §1104; or
• a person, institution, or corporation found unsuitable by the court.
It is presumed not to be in the best interest of a ward to appoint a person as guardian if the person has been convicted of certain crimes, such as physical assault or any sexual offense. See Texas Estates Code 1104.
APS-IH / November 2016
According to Texas Government Code §411.114, DFPS has statutory authority to conduct criminal history checks on a person who:
• is the alleged perpetrator in an open APS investigation; or
• is living in the same residence as the client.
Criminal history information may only be released outside DFPS to HHSC Office of Guardianship Services (OGS) or any outside entity:
• with the consent of the person the criminal history information is about; or
• upon court order.
In Texas Estates Code §1104, the court has responsibility to conduct criminal history checks on some types of proposed guardians. If the probate court orders APS to state whether a criminal history check was performed on a proposed guardian, the specialist:
• exercises caution in recounting specific details of the criminal history from memory; and
• does not take a copy of the criminal history record to court.
The specialist, in consultation with the supervisor, releases a copy of the criminal history information only if ordered by the court to do so.
2381.5 Criminal History Records Checks and Referrals to HHSC Office of Guardianship Services
5126 Disclosure of Criminal History Information
5126.1 Procedure for Disclosure of Criminal History Information
APS IH / August 2010
As a general rule, APS does not have authority to conduct IMPACT background checks on proposed guardians when requested to do so by a third party, including a court. However, in some circumstances, a court may request a copy of all APS records concerning a party before the court, including a proposed guardian. See Human Resources Code §48.101(c).
The APS specialist conducts an IMPACT background check on family members and friends during the guardianship process when APS is:
• assisting this individual to apply for guardianship as provided in section 4750 Relative or Other Person as Guardian; or
• referring the case to HHSC OGS for guardianship and needs to explain on the HHSC OGS Guardianship Referral form why APS does not believe the individual is suitable to serve as guardian;
APS performs IMPACT background checks on adult family members of a client being referred to HHSC OGS for guardianship services, regardless of their willingness to serve as guardian. If a family member or friend who is willing to serve as guardian is located by HHSC OGS following a referral by APS, and an IMPACT check has not been performed, APS conducts an IMPACT background check upon HHSC OGS’s request.
2380 Record Checks
5132 Notifying a Probate Court About an Investigation Involving Guardianship
APS IH / August 2010
The APS specialist performs a search of the person’s name in IMPACT to determine whether there are any positive findings against the person for abuse, neglect, or financial exploitation, including validated, confirmed or Reason to Believe (RTB: the CPS disposition of valid) findings.
It is important to note that prior positive findings in any relevant APS, CPS, or CCL case can be released to HHSC OGS during the referral process; however, only prior positive findings in an APS investigation can be released to the court.
The APS specialist reviews the chart below to determine which prior positive findings can be released when and to whom.
then the APS specialist…
APS is assisting an individual to apply for guardianship as outlined in section 4750 Relative or Other Person as Guardian and an application has been filed, …
• discusses the prior positive APS finding with the proposed guardian; and
• recommends that the individual not pursue guardianship over the APS client. CPS and CCL findings are not released to the court.
If the proposed guardian has filed and still intends to pursue guardianship, the specialist informs him or her that APS will provide information concerning the prior positive APS finding to the court for consideration.
The specialist sends the Notification of Prior APS Findings form to the probate court as outlined in section 5132 Notifying a Probate Court About an Investigation Involving Guardianship.
APS is referring the case to HHSC OGS for guardianship and including the family member’s or friend’s name on the referral form, …
• without revealing the identity of a victim (other than the proposed ward), summarizes on the referral form;
• the facts of the case; and
• the basis for the positive finding against the person.
If the person’s prior history with DFPS involves different clients, APS can only reveal the identity of the client in the current case being referred to HHSC OGS.
HHSC OGS has located a previously unknown individual or alternate guardian, who indicates a desire to serve as a guardian for the client in lieu of HHSC OGS serving as guardian …
• discloses to HHSC OGS via e-mail:
• relevant information about the prior positive finding against the person; and
• without revealing the identity of a victim (other than the proposed ward); summarizes the facts and basis for the finding.
The APS specialist provides to HHSC OGS:
• a hard copy of the current case; and
• any relevant previous cases in which the family member or other interested party was the perpetrator against the client being referred to HHSC OGS.
Hard copies of case records concerning the family member or other interested party and a client unrelated to the current investigation may not be released to HHSC OGS.
APS IH September 2014
If APS makes a referral to HHSC OGS, APS staff must attend the hearings without a subpoena, if requested, when guardianship is being pursued by:
• HHSC OGS;
• an HHSC OGS contracted guardian; or
• an alternate guardian located and recommended by HHSC OGS.
APS may attend the hearings without a subpoena, if requested, when:
• there is an open APS case on the client (investigation, Maintenance, or Intensive Case Services);
• APS has not made a referral to HHSC OGS; and
• a guardianship is being sought on the client.
For all other guardianship hearings, APS may only attend if subpoenaed or a request is directly made by the court or judge.
In preparation for the hearing, the APS specialist may consult with the regional attorney, the attorney representing the proposed guardian, or both.
See 5131 Subpoenas.
APS IH / August 2010
Guardianships may be initiated in two different ways. The first and most common way is by filing of an application by a third party (such as someone other than the proposed ward or the probate court). The second method is a court- initiated guardianship.
Application by a Third Party
Texas Estates Code §1101 provides that any interested person may:
• hire an attorney and file an application with a probate court to state a proposed ward lacks capacity; and
• request that someone be appointed as guardian.
Most often, the applicant requests to be appointed guardian. This is usually a family member or friend of the proposed ward or may be a guardianship program or private professional guardian.
Occasionally an applicant is willing to pay to file an application to get the process started, but is not willing to serve as guardian. In this situation, the applicant is more likely to be a hospital, doctor, nursing home, or other individual or entity.
In most cases, the applicant names a person or entity to serve as guardian in the application; however, the applicant may also name no one, leaving it to the court to find someone to serve. If a party is named in the application to serve as guardian, the law requires that the party be given legal notice of the application so the proposed guardian has the opportunity to appear in court and agree or disagree to serve as guardian.
If an applicant who does not wish to serve as guardian contacts APS and asks APS or HHSC OGS to agree to serve as guardian, APS declines to serve. APS advises the applicant to contact HHSC OGS directly to discuss whether it can serve as guardian.
APS refers anyone who contacts APS with questions about guardianship, including a court, to HHSC OGS. If APS becomes aware of a third party’s intent to file an application naming HHSC OGS to serve as guardian, APS notifies HHSC OGS about the application as soon as possible.
Texas Estates Code §1102 provides an alternate method for the initiation of a guardianship proceeding. If the probate court receives information indicating an individual may need a guardian, but no one is willing or able to file an application for guardianship, the court may authorize either its court investigator or a specially appointed guardian ad litem to investigate the need for guardianship and the proposed ward’s lack of capacity.
The guardian ad litem or the court investigator reports directly to the court. If the report indicates the person likely needs a guardian to be appointed, the court authorizes either the court investigator or the guardian ad litem to file an application for guardianship at county expense.
This application may name an individual found by the investigator or guardian ad litem who is willing to serve as guardian. If a guardianship program serves the county, the application may name the guardianship program. If there is no one identified as willing to serve as guardian, the court faces a significant dilemma.
Sometimes the party who notifies the court that a court-initiated guardianship is needed is an individual who is willing to serve as guardian, but has no funds to hire an attorney to file an application. Some courts are willing to use the court-initiated guardianship process to fund hiring an attorney at county expense to get the application filed.
APS is involved in the court-initiated guardianship process only when one of the following occurs:
• APS has found a family member or friend willing to serve as guardian for an APS client, but the person lacks funds to pay for an attorney to file an application. See further discussion in 4750 Relative or Other Person as Guardian and 4751 Procedure for Assisting Individuals With Guardianship.
• A probate court requests to be notified by APS of persons who need guardianship and who have been referred to HHSC OGS as provided in Human Resources Code §48.209(d). APS notifies the court at the same time as sending the guardianship referral to HHSC OGS. APS does not request a Certificate of Medical Examination (CME) to support the notification.
In either situation, APS advises HHSC OGS that the court has been notified and may be instituting a court-initiated guardianship.
APS IH / August 2010
When the APS specialist believes the client lacks capacity and a less restrictive alternative to guardianship has not been or will not be successful in resolving abuse, neglect, or financial exploitation, a guardianship of the client should be considered. The law requires that family members or friends be considered first. The priority list is discussed in 4730 Order of Preference for Appointment of Guardian.
The right to serve is not absolute and various factors could disqualify a person from serving as guardian. Whenever possible, the APS specialist attempts to identify a person willing and able to serve as a guardian before considering a referral to HHSC OGS. Before asking a family member or other person to consider serving as guardian, the APS specialist determines whether the family member or other interested party appears to be appropriate as defined in the Texas Estates Code §1104 and will act in the client’s best interest.
An IMPACT background check is completed any time a family member or other interested party expresses interest in serving as guardian to determine if there is prior DFPS history indicating the person may not be suitable to serve as guardian.
4731 Disqualifications of Guardians
4732.2 IMPACT Background Checks
APS IH October 2018
The APS specialist:
• discusses with the subject matter expert (SME) the appropriateness of guardianship;
• determines whether family members or other interested parties are suitable, willing, and able to serve as guardian, including whether the proposed guardian is clearly disqualified to serve as guardian (see 4731 Disqualifications of Guardians);
• interviews the proposed guardian and appropriate collaterals;
• conducts an IMPACT check to determine whether the person is an alleged, designated, or sustained perpetrator in an APS, CPS, or CCL case;
• determines with the SME whether to suggest to the person that he or she apply for guardianship of the APS client;
• obtains SME approval before recommending guardianship;
• informs the supervisor of all decisions; and
• remains responsible for routine case actions until a guardian has taken the oath of guardianship or the situation is otherwise resolved.
3300 Maintenance Cases
4782.3 Procedure for Case Management After Standard Referral Form is Submitted to HHSC
Legal Representation for Relative or Other Party
If, after completing the above procedure, APS suggests to a relative or other interested party that he or she consider applying for guardianship of an APS client, the APS specialist explains that the proposed guardian must retain a private attorney to file the guardianship application. Further, the APS specialist explains that if the proposed ward has sufficient finances, the proposed guardian may be reimbursed by the court for attorney’s fees after the guardianship hearing.
If the proposed guardian has insufficient finances to hire an attorney, or the proposed guardian is unwilling to hire an attorney because the ward’s estate lacks sufficient funds to reimburse the proposed guardian, there may be options the APS specialist can recommend to the proposed guardian. All options are not available in all counties. Possibilities the APS specialist may suggest the proposed guardian pursue include:
• negotiating a reduced fee with a private attorney;
• -seeking legal aid services;
• contacting the probate court to ask whether the county has appropriated funds to pay attorney fees if a proposed guardian is indigent and the proposed ward’s estate is insufficient; or
• contacting the probate court about a court-initiated guardianship under Texas Estates Code, Chapter 1102.
See 2531 Procedure for SME Consults.
APS IH October 2018
The subject matter expert (SME) or designee documents the SME consult in the Narrative section of a SME Consult Contact Detail page.
The APS specialist documents the:
• interview with the proposed guardian and any collaterals;
• IMPACT check on the proposed guardian; and
• name of the person applying for guardianship and the type of guardianship being pursued on the IMPACT Guardianship Detail page.