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7000 Guardianship Cases

APS February 2021

A guardian is a person or entity appointed by the court to have full or limited responsibility and authority for the care of a person who is incapacitated. There are two types of guardians, as follows:

  • A guardian of the person is responsible for the person’s health, well-being, and personal needs.
  • A guardian of the estate is responsible for managing the person’s assets.

Texas Estates Code §1002.017 defines an incapacitated person as someone who is either of the following:

  • A minor.
  • An adult who, because of a physical or mental condition, is substantially unable to do the following:
    • Provide his or her own food, clothing, or shelter.
    • Care for his or her own physical health.
    • Manage his or her own financial affairs.

Once a guardian is appointed, the person who is incapacitated is known as a ward.

A court may appoint a private individual or a professional guardianship program, such as a state, county, regional, or nonprofit guardianship agency or program, to serve as guardian. If a professional guardianship program becomes the ward’s legal guardian, the program appoints an agent for the guardian, such as an employee or volunteer, to make sure the ward’s needs are met.

Guardianship may be temporary or permanent. A court creates a temporary guardianship only in an emergency when there is imminent danger to the ward, his or her estate, or both. A temporary guardianship expires after 60 calendar days, unless the court extends it. A permanent guardianship remains in effect until the ward dies or the court terminates the guardianship.

APS attempts to work cooperatively with court-appointed guardians when investigating allegations that involve wards.

See:

13000 Legal Actions, Legal Documents, and Other Non-Legal Remedies

16124.1 Court Notification About an Investigation Involving Guardianship

7100 Investigations Involving a Ward

APS February 2021

APS investigates allegations of abuse, neglect, and financial exploitation involving wards as outlined in policy.

7110 APS Access to a Ward

APS February 2021

APS is authorized to interview an alleged victim (ward) who has a court-appointed guardian, even if the guardian does not give permission before the interview.

When conducting an investigation involving a ward, the APS specialist does as follows:

  • Interviews the alleged victim (ward) if the APS specialist has access to the ward.
  • Attempts to obtain the guardian’s cooperation if the APS specialist lacks access.
  • Notifies the professional guardianship program’s management if an agent for the guardian refuses to grant APS access to the alleged victim (ward).
  • Consults with the APS supervisor, APS district director or designee, and the regional attorney before seeking an injunction against interference or a court-authorized entry.

See:

6121 Interviewing an Alleged Victim or Client

6121.11 Denial or Revocation of Permission to Enter

6121.2 Transportation for an Alleged Victim or Client

13200 Court-Authorized Entry

13400 Interference With Investigation or Protective Services

7120 Neglect of a Ward

APS February 2021

An allegation of neglect involving a ward is not self-neglect because the court has already determined the ward lacks the ability to provide for his or her own care.

The following are the only exceptions:

  • The guardian is only a guardian of the estate, and the alleged neglect is not related to the ward’s finances.
  • There is a limited guardianship, the ward still has capacity to make some decisions on his or her own behalf (such as where to live), and the alleged neglect is related to the ward’s decisions.
  • The guardian died, and the court has not appointed another guardian.

The following people meet the APS definition of a caretaker, and APS considers them when determining the alleged perpetrator role:

  • Direct-care provider.
  • Court-appointed guardian, if the allegation falls within the responsibilities of the guardianship.
  • Agent for the guardian, such as an employee or volunteer of a professional guardianship program.

For each person who meets the definition of a caretaker, the APS specialist considers the person’s responsibilities, oversight, and actions or lack of actions, when determining whether he or she is an alleged perpetrator.

See:

3320 Perpetrators of Neglect

8610 Allegation Disposition (Finding)

7130 Financial Exploitation Allegations Against a Guardian of the Estate

APS February 2021

A guardian of the estate cannot financially exploit his or her ward because the court’s finding of incapacity has removed the ward’s legal ability to consent. The court has the responsibility to approve or disapprove all expenditures by a guardian of the estate at least annually.

When an intake alleges financial exploitation by a guardian of the estate, the APS specialist contacts the court clerk to determine the following:

  • Whether the alleged perpetrator is currently the guardian of the estate for the alleged victim or whether the alleged perpetrator was the guardian of the estate at the time of the alleged financial exploitation.
  • Whether the alleged financial exploitation occurred during a time frame for which the court had already approved an annual accounting.

APS fully investigates financial exploitation allegations against all other alleged perpetrators, including guardians of the person.

Expenditure Already Approved

If the court has already approved the expenditure in question, only the judge can determine whether the expenditure was inappropriate.

If the expenditure is part of an approved annual accounting, the APS specialist does the following:

  • Directs the reporter to make a complaint to the court.
  • Closes the investigation using the Closure Reason code Does Not Meet Definition.

If the reporter was anonymous, the APS specialist informs the court, using the APS Court Report for Guardianship letter located in IMPACT, as outlined in 16124.1 Court Notification About an Investigation Involving Guardianship.

Expenditure Not Yet Approved

If the expenditure in question is during a time frame not yet reported to the court on an annual accounting, the APS specialist contacts the court to explain the financial exploitation allegation and why APS cannot conduct a standard investigation.

If the court does not have a court investigator for guardianship and requests APS’s help with investigating the allegation, the APS specialist conducts an investigation of the alleged financial exploitation but does not make a finding. The APS specialist then does the following:

Allegation of Financial Exploitation Indicates Possible Neglect

In some instances, allegations of financial mismanagement by the guardian of the estate may indicate possible neglect, given how the mismanagement may be affecting the ward. In these cases, the APS specialist does the following:

  • Adds an allegation of neglect.
  • May contact the court to discuss any specific concerns noted during the investigation.
  • Enters a disposition of Other for the allegation of financial exploitation.
  • Enters the appropriate disposition for all other allegations.
  • Closes the Investigation stage using the appropriate Closure Reason code.

Regardless of which Closure Reason code is used, the APS specialist notifies the court with jurisdiction over the guardianship that APS received allegations about a ward of the court, as outlined in 16124.1 Court Notification About an Investigation Involving Guardianship.

See: 

3320 Perpetrators of Neglect

8623 Financial Exploitation Allegations

7200 Guardianship Process

APS February 2021

APS does not have authority to serve as legal guardian for a client. APS can give the client and his or her family information about guardianship services.

APS may make a referral to the Health and Human Services Commission (HHSC) Office of Guardianship Services (OGS) when no other options are available. Guardianship is the last resort because it is the most restrictive alternative.

See:

7300 Referrals to HHSC Office of Guardianship Services (OGS)

13710 Guardian of the Person, Estate, or Both

7210 Background Checks and Guardianship

APS February 2021

The APS specialist conducts IMPACT background checks and requests criminal history checks to collect data to keep the APS specialist and the client safe. This data may also help inform APS of the appropriateness of a person interested in serving as guardian.

7211 Criminal History Checks

APS February 2021

According to Texas Government Code §411.114, DFPS has authority to conduct criminal history checks on a person who meets one of the following criteria:

  • Is an alleged perpetrator in an open APS investigation.
  • Lives in the same residence as the client.

APS may only release criminal history information to an entity outside DFPS, including to HHSC OGS, when either of the following occurs:

  • The person whom the criminal history information is about consents to the release.
  • The court orders APS to release the information.

The Texas Estates Code §1104 states that the court has the responsibility to conduct criminal history checks on certain proposed guardians. If the court orders APS to state whether DFPS conducted a criminal history check on a proposed guardian, the APS specialist does the following:

  • Exercises caution in telling specific details of the criminal history from memory.
  • Does not take a copy of the criminal history record to court.

The APS specialist, in consultation with the supervisor, releases a copy of the criminal history information only if the court orders APS to do so.

See also:

7310 Criminal History Records Checks and Referrals to HHSC OGS

16125.3 Disclosure of Criminal History Information

7212 IMPACT Background Checks

APS February 2021

In general, APS does not have authority to conduct IMPACT background checks on proposed guardians at the request of a third party, including a court. However, in some circumstances, a court may request a copy of all APS records related to a person before the court, including a proposed guardian. See Human Resources Code §48.101(c).

The APS specialist conducts IMPACT background checks on family members and friends during the guardianship process when APS does one of the following:

  • Helps the person apply for guardianship, as described in 7221 Relative or Other Person as Guardian.
  • Refers the case to HHSC OGS for guardianship and explains on the APS Guardianship Referral Form in IMPACT why APS does not believe the person is suitable to serve as guardian.

APS conducts IMPACT background checks on adult family members of a client being referred to HHSC OGS, regardless of their willingness to serve as guardian. APS also conducts this type of background check at HHSC OGS’s request if HHSC OGS finds a family member or friend who is willing to serve as guardian following a referral by APS, and APS has not yet done this check.

See:

6410 Records Checks

16124.1 Court Notification About an Investigation Involving Guardianship

How to Conduct an IMPACT Background Check

The APS specialist does 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. Positive findings include the following:

  • Valid.
  • Confirmed (CON), the HHSC Provider Investigations (PI) finding for Valid.
  • Reason to Believe (RTB), the Child Protective Investigations (CPI) and Child Care Investigations (CCI) finding for Valid.

APS may release prior positive findings in any relevant APS, HHSC PI, CPI, or CCI case to HHSC OGS during the referral process. However, APS may release only prior positive findings in an APS investigation to the court.

The APS specialist reviews the table below to determine which prior positive findings APS can release when and to whom.

Situation

Actions by APS Specialist

APS is helping a person apply for guardianship as outlined in 7221 Relative or Other Person as Guardian and an application has been filed.

The specialist:

    • Discusses the prior positive APS finding with the proposed guardian.
    • Recommends the person not pursue guardianship of the APS client.

If the proposed guardian has filed and still intends to pursue guardianship, the specialist tells him or her that APS will give information about the prior positive APS finding to the court for consideration. APS does not release CPI, HHSC PI, or CCI findings to the court.

The specialist sends the Notification of Prior APS Findings form (located in IMPACT) to the court as outlined in 16124.1 Court Notification 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 as a proposed guardian on the referral form.

Without revealing the identity of a victim (other than the proposed ward), the specialist summarizes on the referral form the following:

    • The facts of the case.
    • 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 found a previously unknown person or alternate guardian, who indicates a desire to serve as a guardian for the client instead of HHSC OGS serving as guardian.

Without revealing the identity of a victim (other than the proposed ward), the specialist discloses to HHSC OGS by email the following:

  • A summary of the facts of the case.
  • The basis for the positive finding against the person.

The APS specialist provides to HHSC OGS the following:

  • A copy of the current case record, by email, mail, fax, or hand delivery.
  • Any records of relevant previous cases in which the family member or other interested person was the perpetrator against the client whom APS is referring to HHSC OGS.

APS may not release to HHSC OGS copies (by email, mail, fax, or hand delivery) of case records about the family member or other interested person and a client who is unrelated to the current case.

See:

7330 Standard Referrals to HHSC OGS

7341 Emergency Referral With Emergency Order for Protective Services (EOPS)

16111 Individuals and Entities Entitled to the Case Record

7220 Initiation of Guardianships

APS February 2021

There are two ways to initiate a guardianship. The most common way is an application by a third party (someone other than the proposed ward or the court). Another method is a court-initiated guardianship.

Application by a Third Party

Texas Estates Code §1101 provides that any interested person may do both of the following:

  • Hire an attorney to file an application with a local court with jurisdiction, to state a proposed ward lacks capacity.
  • Request that the court appoint someone as guardian.

Usually, the applicant requests to be appointed guardian. This is often a family member or friend of the proposed ward or may be a professional guardianship program or private professional guardian.

Occasionally, an applicant is willing to pay to file an application to start the process 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 person 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 the application names a person or entity to serve as guardian, the law requires that he, she, or it 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 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 someone’s intent to file an application naming HHSC OGS as proposed guardian, APS notifies HHSC OGS about the application as soon as possible.

Court-Initiated Guardianship

Texas Estates Code §1102 provides an alternate method for initiating a guardianship. If the court receives information indicating a person 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 court investigator or guardian ad litem reports directly to the court. If the report indicates the person likely needs a guardian, the court authorizes the court investigator or guardian ad litem to file an application for guardianship with the court at the expense of the county.

This application may name someone whom the investigator or guardian ad litem has found and 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 dilemma.

Sometimes the person who notifies the court that a court-initiated guardianship is needed is willing to serve as guardian but cannot afford to hire an attorney to file an application. Some courts are willing to use the court-initiated guardianship process to hire an attorney at county expense to get the application filed.

APS Involvement

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 cannot afford to pay for an attorney to file an application. See 7221 Relative or Other Person as Guardian and its subsection on How to Help Someone Apply for Guardianship.
  • A court asks APS to notify it of people who need guardianship and whom APS has referred to HHSC OGS as provided in Human Resources Code §48.209(d). APS notifies the court at the same time as it sends the guardianship referral to HHSC OGS. APS does not request a certificate of medical examination (CME) to support the notification.

In either situation, APS informs HHSC OGS that the court has been notified and may be pursuing a court-initiated guardianship.

7221 Relative or Other Person as Guardian

APS February 2021

APS considers initiating a guardianship of the client when the APS specialist believes that both of the following apply:

  • The client lacks capacity.
  • A less restrictive alternative to guardianship has not been or will not be successful in resolving abuse, neglect, or financial exploitation.

The law requires that relatives or friends be considered as potential guardians first. The priority list is in Order of Preference for Appointment of Guardian in 13710 Guardian of the Person, Estate, or Both.

The right to serve is not absolute, and various factors could disqualify a person from serving as guardian. Before making a referral to HHSC OGS, the APS specialist does the following:

  • Attempts to identify a person willing and able to serve as a guardian.
  • Reviews Order of Preference for Appointment of Guardian in 13710 Guardian of the Person, Estate, or Both before asking a family member or other person to consider serving as guardian.

The APS specialist completes an IMPACT background check any time a family member or other person expresses interest in serving as guardian. This background check determines whether there is prior DFPS history indicating the person may not be suitable to serve as guardian.

See 7212 IMPACT Background Checks.

How to Help Someone Apply for Guardianship

To help a client’s relative or another person apply for guardianship, the APS specialist does the following:

  • Discusses with the subject matter expert (SME) the appropriateness of guardianship.
  • Determines whether family members or other interested people are suitable, willing, and able to serve as guardian, including whether the proposed guardian is clearly disqualified to serve as guardian (see Order of Preference for Appointment of Guardian in 13710 Guardian of the Person, Estate, or Both).
  • Interviews the proposed guardian and appropriate collaterals.
  • Conducts an IMPACT background check to determine whether the proposed guardian is an alleged, designated, or sustained perpetrator in an APS, HHSC Provider Investigations, CPI, or CCI case.
  • Determines, with the SME, whether to suggest to the person that he or she apply for guardianship of the APS client.
  • Informs the supervisor of all decisions.
  • Remains responsible for routine case actions until a guardian has taken the oath of guardianship or the situation is otherwise resolved.

See:

7332 Case Management After Standard Referral

11100 Maintenance Cases

Documentation Requirements

The SME or designee documents the SME consultation in the Narrative section of a SME Consult Contact Detail page.

The APS specialist documents the following:

  • Interviews with the proposed guardian and any collaterals.
  • IMPACT background check on the proposed guardian.
  • Name of the person applying for guardianship and the type of guardianship (on the Guardianship Detail page).

See 9700 Subject Matter Expert (SME) Consultations.

Legal Representation for Relative or Other Person

If, after completing the above procedure, APS suggests to a relative or other interested person that he or she consider applying for guardianship of an APS client, the APS specialist explains the following:

  • The proposed guardian can hire a private attorney to file the guardianship application.
  • If the proposed ward has enough money, the proposed guardian may file a request with the court for reimbursement of the attorney’s fees after the guardianship hearing.

There may be other options the APS specialist can discuss with the proposed guardian if either of the following applies:

  • The proposed guardian cannot afford to hire an attorney.
  • The proposed guardian is not willing to hire an attorney because the ward’s estate does not have enough money to reimburse the proposed guardian.

When providing options, the APS specialist does not recommend specific attorneys or legal options or provide legal services. Options the APS specialist may suggest include the following:

  • Negotiating a reduced fee with a private attorney.
  • Seeking legal aid services.
  • Contacting the court to ask whether the county has appropriated funds to pay attorney’s fees if neither the proposed guardian nor the proposed ward’s estate can afford those fees.
  • Contacting the court about a court-initiated guardianship under Texas Estates Code §1102.

See 9700 Subject Matter Expert (SME) Consultations.

7222 Attendance at Guardianship Hearings

APS February 2021

If APS makes a referral to HHSC OGS, APS staff must attend the hearings without a subpoena, if requested by the court or HHSC OGS, when any of the following are pursuing guardianship:

  • HHSC OGS.
  • An alternate guardian that HHSC OGS has found and recommended.

APS may attend the hearings without a subpoena, when requested, when all of the following apply:

  • There is an open APS case on the client (in any stage).
  • APS has not made a referral to HHSC OGS.
  • A person or entity is seeking to become the client’s guardian.

For all other guardianship hearings, APS may attend only if subpoenaed or if the court or judge directly requests APS’s attendance.

In preparation for the hearing, the APS specialist may consult with the regional attorney, the attorney representing the proposed guardian, or both.

See Subpoenas in 16124 Case Information in Connection With a Court Action.

7300 Referrals to HHSC Office of Guardianship Services (OGS)

APS February 2021

Guardianship is indicated when an APS client appears to lack capacity and APS is unable to find a less restrictive alternative that meets the client’s needs.

If APS is unable to find a family member or friend who is suitable and willing to serve as guardian, APS refers the client to the HHSC Office of Guardianship Services (OGS). However, if the client lives in Harris or Galveston County, APS makes the guardianship referral to the local county guardianship program instead of HHSC OGS.

APS makes the following types of guardianship referrals to HHSC OGS:

Upon receipt of the guardianship referral, the assigned guardianship specialist assesses the APS client to determine whether he or she meets the criteria for guardianship.

As part of the guardianship assessment process, HHSC OGS determines whether less restrictive alternatives exist that meet the client’s needs. Also, if HHSC OGS becomes aware of a family member or friend suitable and willing to serve as guardian, HHSC OGS allows that person to apply for guardianship, if the person can do so in a timely manner.

APS and HHSC OGS work jointly on guardianship referrals to promote positive outcomes for proposed wards.

When to Refer to HHSC OGS

APS refers a client to HHSC OGS when all of the following apply:

  • APS has found that the client is in a state of abuse, neglect, or financial exploitation.
  • There are indicators the client is incapacitated, as defined in Texas Estates Code §1002.017.
  • The client is at high or medium risk of abuse, neglect, or financial exploitation.
  • Less restrictive alternatives have had one of the following outcomes:
    • The client or family has refused them.
    • They are not available or adequate.
    • They have failed to protect the client.
  • Diligent attempts have failed to find suitable family members or other interested people who are willing and able to serve as guardian.
  • The client has one of the following financial situations:
    • He or she has enough personal financial resources.
    • He or she is eligible for federal benefits to pay for his or her placement and other financial needs.
    • He or she can become eligible for federal benefits through legal spend-down procedures once a guardian is appointed.
  • Guardianship will resolve the major issue that places the client at ongoing risk of abuse, neglect, or financial exploitation.

When Not to Refer to HHSC OGS

Guardianship by HHSC OGS is not appropriate when any of the following apply:

  • The client is not incapacitated, as defined in Texas Estates Code §1002.017.
  • A less restrictive alternative is available to meet the client’s needs.
  • APS or HHSC OGS has 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 client’s needs. (Examples may include when mental illness or substance abuse is the only reason for guardianship.)
  • The client does not have, or is not expected to have, the personal financial resources to pay for necessary care.
  • The client’s immigration status makes him or her ineligible for benefits necessary for care.
  • The client is otherwise inappropriate for guardianship.

7310 Criminal History Records Checks and Referrals to HHSC OGS

APS February 2021

APS specialists are responsible for conducting a criminal history records check on an alleged perpetrator before referring a case to HHSC OGS.

APS specialists also have legal authority to conduct criminal history records checks on people living in the same home as the alleged victim, at the specialists’ discretion.

APS may release criminal history information to any entity outside DFPS (including to HHSC) when any of the following apply:

  • Upon court order.
  • With the consent of the person the criminal history information is about.
  • For the purpose of an administrative hearing that DFPS is holding about the person who is the subject of the criminal history information.

See 6412 Criminal History Records Checks.

7320 Minimum Information for HHSC OGS Referrals

APS February 2021

When APS makes a referral for guardianship, certain information is required on the referral form for it to be complete. The information below is the minimum information the APS specialist includes on a guardianship referral before submitting it to HHSC OGS.

If the APS specialist does not provide the required minimum information at the time of a standard or emergency referral, the specialist provides the missing information within five calendar days after submitting the referral.

Required Minimum Information

Client Information and Case Findings

The following information is required:

  • Client’s full name.
  • Permanent address.
  • Current location or place of residence, if different from permanent address.
  • Date of birth.
  • Sex.
  • Race.
  • Driver license number.
  • Social Security number, if client consents to provide it.
  • US citizenship or legal resident status and whether the client is entitled to receive federal benefits, if requested on the form.
  • Contact person and phone number at client’s current location, if applicable.
  • Name and contact information for client’s physician.
  • Medical information (including diagnoses and whether APS has discussed guardianship with a medical or mental health provider or other professional).
  • IMPACT Person ID number and case number.
  • Contact information for the referring APS specialist and supervisor, including phone, email, and office address.
  • At least one validated finding of abuse, neglect, or financial exploitation.
  • Alleged and designated perpetrator information, if appropriate.

Family and Collaterals

The following information is required:

  • Names and contact information for family members and friends, including general background information on those to whom any of the following applies:
    • They have been asked and declined to become guardian.
    • They have failed to take timely action to become guardian.
    • APS believes they are unsuitable or incapable to serve as guardian, and the reason for this belief.
  • Prior history of family members or friends caring for client, interfering with the client’s care, or any validation of abuse, neglect, or financial exploitation (see 7212 IMPACT Background Checks).

Prior Case History and Current Problems

The following information is required:

  • A brief summary of present problems that indicate lack of capacity, including a statement of the recurring acts or occurrences in the past six months that support the need for guardianship.
  • An explanation of how guardianship will protect the client from risk of future abuse, neglect, or financial exploitation.
  • A list of the problems that guardianship will not resolve for the client. (For example, a guardian cannot compel a chronically medically noncompliant person to take medication.)
  • A list of the previous less restrictive alternatives that were tried unsuccessfully, were successful but will no longer work, or were considered for the client but not chosen, and why APS believes those will not adequately protect the client.

Missing Information

HHSC OGS does not refuse a referral based on a lack of information. However, an incomplete referral form may result in the following:

  • Delay of the guardianship assessment by HHSC OGS.
  • Delay of the filing of the guardianship application.
  • Closure of the referral.

See also 7371 Incomplete or Missing Information in the Referral.

7330 Standard Referrals to HHSC OGS

APS February 2021

HHSC OGS has 70 calendar days from the receipt of a guardianship referral to determine whether guardianship is appropriate for the client and, if it is, to file a guardianship application with the court. This 70-calendar-day time frame has all of the following characteristics:

  • It applies regardless of whether the applicant is HHSC OGS or an alternate guardian that HHSC OGS discovers.
  • It begins on the day HHSC OGS receives the referral form from APS.
  • It ends when one of the following occurs:
    • HHSC OGS decides the person is not appropriate for guardianship and notifies APS.
    • HHSC OGS or an alternate guardian files a guardianship application with the court.

If HHSC OGS requests more information from APS or if APS provides more information, that does not affect the 70-day time frame.

HHSC OGS completes the guardianship assessment within 30 calendar days after receipt of the referral unless the guardianship supervisor grants an extension.

APS works with HHSC OGS to make sure information is provided to HHSC OGS in a timely manner.

See also 7376 Request for Extension on Filing Guardianship Application.

Assessing Appropriateness of Standard Referrals

Unless the client is in an emergency situation, the APS specialist does all of the following before making a referral to HHSC OGS:

  • Completes a thorough investigation and assessment of the client.
  • Validates at least one allegation on the Allegation Detail page.
  • Considers all of the following indicators of incapacity:
    • Observations of the client’s behavior, including statements or acts indicating the degree of the client’s impairment, and significant dangers or shortcomings in the client’s living environment that the client fails or refuses to recognize as problems.
    • Certain danger factors and the Safety Decision on the Safety Assessment.
    • Evidence of diminished capacity to consent to or refuse services that a physician or other professional may confirm verbally or in writing.
  • Determines whether the client is likely to remain in a state of ongoing abuse, neglect, or financial exploitation.
  • Determines whether the client’s support system appears to be adequate to protect the client from abuse, neglect, or financial exploitation.
  • Explores all less restrictive alternatives that might be adequate to protect the client.
  • Determines whether family members or other interested people are suitable, willing, and able to serve as guardian. If such a person is identified, see 7221 Relative or Other Person as Guardian.
  • Confirms that the client has enough personal financial resources to pay for the client’s care, or is eligible for federal benefits, or could become eligible for federal benefits.
  • Determines that guardianship will resolve all or some of the client’s significant problems and will protect the client.
  • Makes sure to enter all case documentation the same day or the next day to allow timely sharing of information.

See:

7340 Emergency Referrals to HHSC OGS

8100 Safety Assessment

7331 Completion of a Standard Referral

APS February 2021

If there are indicators that the client needs a referral to HHSC OGS, the APS specialist, supervisor, and subject matter expert (SME) follow the steps below.

APS Specialist

The APS specialist does the following:

  • Consults with the SME about approval to send a standard referral to HHSC OGS.
  • Informs the supervisor of the decision to pursue guardianship.
  • Completes the APS Guardianship Referral Form as the Contact Type on the Contact Detail page in IMPACT, including the following:
    • All required minimum information that the specialist knows at the time of the referral. (If certain information is not yet known, the specialist leaves those fields blank.)
    • Any other information the specialist knows at the time of the referral, such as property or bank information.
  • Notifies the SME that the form is ready for review.
  • Saves and submits the form in IMPACT to the supervisor or SME for review and approval.

SME

The SME does the following:

  • Reviews the APS case.
  • Reviews the APS Guardianship Referral Form in IMPACT to make sure all the information is provided as required in 7320 Minimum Information for HHSC OGS Referrals.
  • Recommends revisions to the content entered in the form, if needed.

Supervisor or SME

The APS supervisor or SME does the following:

  • Reviews the APS Guardianship Referral Form to make sure all the information is provided as required in 7320 Minimum Information for HHSC OGS Referrals.
  • Then does the following:
    • Saves the form as an HTML document.
    • Approves the form in IMPACT. This action also sends the form to the HHSC Guardianship On Line Database (GOLD).
    • Emails the HHSC OGS supervisor the same day the referral is approved and attaches the HTML document.
    • Arranges an initial case review meeting with the HHSC OGS supervisor within the next three business days, if necessary. This meeting may be face-to-face or by conference call.
    • Discusses the referral with the HHSC OGS supervisor at the case review meeting to answer any questions about the referral form.

7332 Case Management After Standard Referral

APS February 2021

After a standard APS Guardianship Referral Form is submitted to HHSC OGS, the assigned OGS guardianship specialist conducts an assessment. The APS specialist works with the guardianship specialist and shares information to promote a positive outcome for the client.

Within five calendar days after submitting the guardianship referral form to HHSC OGS, the APS specialist does the following:

  • Gives HHSC OGS copies (by email, mail, fax, or hand delivery) of any required minimum information (see 7320 Minimum Information for HHSC OGS Referrals) that was left blank on the referral form, as well as any other documentation in the case file that supports the referral, such as the following:
    • The current investigation (specifically, a copy of the APS Case Review located in the Forms drop-down menu on the IMPACT Case Summary page).
    • Any relevant prior history not already provided in the referral form.
    • Medical assessments, determination of intellectual disabilities, or medical records.
    • Financial information.
  • Notifies HHSC OGS by email if any of the required minimum information does not exist or cannot be provided in the five-day time frame, and reaches an agreement with HHSC OGS about when APS will provide this information.

Ongoing Responsibilities of the APS Specialist

In addition to making sure APS sends all required minimum information to HHSC OGS in five calendar days, the APS specialist does the following:

  • Completes a full investigation of any allegations of abuse, neglect, or financial exploitation for which there was not yet a finding at the time of the guardianship referral.
  • Completes all additional case documentation according to policy.
  • Makes sure APS gives HHSC OGS any additional case information that is relevant to the guardianship assessment.
  • Notifies and provides copies to HHSC OGS by email, mail, fax, or hand delivery within two business days of obtaining other important information during the investigation, such as information about the following:
    • Power of attorney (POA).
    • Bank account (name, address, phone, account number, balance).
    • Income, such as Social Security income (SSI), Social Security Disability Insurance (SSDI), Retirement Survivors Disability Income (RSDI), other retirement, veterans’ benefits, and other sources.
    • Policy numbers for Medicaid, Medicare, or other insurance.
    • Real property (land, buildings, crops, mineral or oil rights).
    • Personal property (artwork, jewelry, vehicles, antiques).
    • The existence and location of a will.
    • Life insurance.
  • Completes a Service Authorization in IMPACT to pay for a written certificate of medical examination (CME) only when the HHSC OGS guardianship specialist or the specialist’s supervisor requests it.
  • Provides an affidavit for the guardianship application, if HHSC OGS requests it, within five calendar days.
  • Attends the guardianship hearing without a subpoena, if HHSC OGS requests this attendance.
  • Remains responsible for routine case actions until HHSC OGS or an alternate guardian has taken the oath of guardianship or the situation is otherwise resolved.
  • Closes the service delivery stage (Maintenance or Intensive Case Services) by choosing the Referred to Other Agency closure code on the Stage Closure page in IMPACT.

See 7222 Attendance at Guardianship Hearings.

Documentation After Standard Referral

After making a referral to HHSC OGS, the APS specialist or designee completes the required fields on the Guardianship Detail page, noting the dates and outcomes of the applicable steps of the referral process, including the following information:

  • Date APS sent the guardianship referral.
  • Date and results of the initial case review.
  • Date HHSC OGS accepted the guardianship referral.
  • Date APS received the notification of the HHSC OGS assessment.
  • Results of the HHSC OGS assessment.
  • Date and results of the joint staffing.
  • Date and results of the management review.
  • Date and results of the Guardianship Review Committee review.
  • Final outcome of the review process.

7340 Emergency Referrals to HHSC OGS

APS February 2021

APS and HHSC OGS work jointly in emergency situations to take immediate action to protect APS clients. Emergency situations sometimes require a referral to HHSC OGS before all the steps required for a standard referral can be completed.

APS may need to make an emergency referral to HHSC OGS when either of the following occurs:

  • APS obtains an emergency order for protective services (EOPS).
  • APS determines a client has rapidly diminishing assets and immediate legal intervention is necessary to protect the client’s remaining assets.

APS has legal authority to petition the court twice for a motion for extension of the EOPS. Each motion extends the EOPS for 30 calendar days, for a total of 60 calendar days, so that APS can make adequate and appropriate arrangements to protect the client.

When APS validates abuse, neglect, or financial exploitation and obtains an EOPS, or determines the client’s assets are rapidly diminishing, and it appears that guardianship is appropriate, APS takes immediate action to make sure one the following occurs:

  • APS completes a guardianship referral form and sends it to HHSC OGS within three calendar days after the EOPS.
  • APS determines that an emergency referral for rapidly diminishing assets is appropriate.

For all cases referred for guardianship, at least one validated finding of abuse, neglect, or financial exploitation is required at the time of the referral.

The HHSC OGS guardianship specialist completes the guardianship assessment within 14 calendar days, unless the guardianship supervisor grants an extension, and makes every effort to file an application for guardianship within 33 calendar days.

See:

7330 Standard Referrals to HHSC OGS

13500 Original Petition for Emergency Order for Protective Services (EOPS)

7341 Emergency Referral With Emergency Order for Protective Services (EOPS)

APS February 2021

Once APS has obtained an emergency order for protective services (EOPS), the APS specialist completes the guardianship referral form as completely as possible. The supervisor or subject matter expert (SME) sends the referral to HHSC OGS within three days of obtaining the EOPS, except in extenuating circumstances. APS may need to seek an extension of the EOPS to continue APS’s authority to keep the client safe during the guardianship assessment process. APS’s authority under an EOPS, including extensions, does not last more than 60 calendar days.

It is important to note that the 70-calendar-day time frame for HHSC OGS to assess the client and file a guardianship application, if appropriate, does not start until HHSC OGS receives the referral form.

Delay in Guardianship Referral After an EOPS

After obtaining an EOPS or extension, APS may determine a referral to HHSC OGS for guardianship is no longer necessary because a less restrictive alternative or an alternate guardian will be available to protect the client. In rare cases, the less restrictive alternative or alternate guardian may stop being an option before the extension expires. If this occurs, APS immediately makes the referral to HHSC OGS, including an explanation of what has happened, and requests HHSC OGS act as quickly as possible to assess the client’s appropriateness for guardianship.

See:

7340 Emergency Referrals to HHSC OGS

13560 Termination or Expiration of a Court Order for Emergency Protective Services

7341.1 Completion of an Emergency Referral After an EOPS

APS February 2021

If the client needs a guardian and is appropriate for HHSC OGS, the APS supervisor or SME immediately sends the HHSC OGS supervisor a notification email containing the following:

  • The client’s name and locating address.
  • The date of the EOPS and whether or not the court has granted an extension.
  • Notification that an emergency referral for guardianship services and an expedited assessment are necessary.

The APS specialist then completes the guardianship referral form in IMPACT as outlined in 7331 Completion of a Standard Referral. HHSC OGS cannot begin an assessment until the referral is received in the HHSC Guardianship On Line Database (GOLD).

The APS specialist, supervisor, and SME then follow the steps below.

APS Specialist

The APS specialist does the following:

  • Consults with the SME about approval to send an emergency referral to HHSC OGS.
  • Informs the supervisor of the decision to pursue guardianship.
  • Completes the APS Guardianship Referral Form as the Contact Type on the Contact Detail page as soon as possible, but no later than three calendar days after the EOPS. The referral includes the following information:
    • All required minimum information that the specialist knows at the time of the referral. (If certain information is not yet known, the specialist leaves those fields blank.)
    • Any other information the specialist knows at the time of the referral, such as bank information.
  • Notifies the SME that the form is ready for review.
  • Saves and submits the form in IMPACT to the supervisor or SME for review and approval.

See 7343 Case Management After Emergency Referral.

SME

The SME does the following:

  • Reviews the APS case.
  • Consults with the APS specialist and, as necessary, the APS supervisor about the appropriateness of the emergency guardianship referral.
  • Reviews the APS Guardianship Referral Form to make sure all the information for an emergency referral is provided.
  • Recommends revisions to the content entered in the form, if needed.

Supervisor or SME

The APS supervisor or SME does the following:

  • Reviews the APS Guardianship Referral Form to make sure enough information is provided, as outlined in 7320 Minimum Information for HHSC OGS Referrals, and then does the following:
    • Saves the form as an HTML document.
    • Approves the form in IMPACT. This action also sends the form to the HHSC Guardianship On Line Database (GOLD).
    • Emails the HHSC OGS supervisor and attaches the HTML document the same day the referral is approved.
  • Arranges an initial case review meeting with the HHSC OGS supervisor within the next three business days, if necessary. This meeting may be face-to-face or by conference call.
  • Discusses the referral with the HHSC OGS supervisor at the case review meeting to answer any questions about the referral form.

7342 Emergency Referral to Protect Client Assets

APS February 2021

An emergency may exist that concerns the client’s assets as a result of self-neglect or financial exploitation but that is not a threat to life or safety. In this case, immediate intervention to protect the client’s assets is needed. Less restrictive alternatives, such as alerting the client’s financial institutions or the client’s income sources, may stop the losses until long-term solutions can begin. However, if those options are unavailable, have already failed, or are impractical, APS considers asking HHSC OGS to seek temporary guardianship of the estate.

The Texas Estates Code §1251.001 allows the appointment of a temporary guardian for people whose person or estate requires the immediate appointment of a guardian. The court appoints a temporary guardian with powers limited to those required by the case circumstances.

The applicant for temporary guardianship requests only the powers and duties necessary to protect the ward and his or her estate from imminent loss. HHSC OGS seeks temporary guardianship in appropriate cases after conducting minimal assessment.

APS’s Role in Investigations of Rapidly Diminishing Assets

APS must validate an allegation of abuse, neglect, or financial exploitation before making a referral to HHSC OGS for guardianship services.

If the cause of the rapidly diminishing assets is self-neglect, then APS validates self-neglect and submits an emergency referral to HHSC OGS. In these cases, it is likely that the client’s mental abilities are so impaired that the client cannot handle his or her financial affairs.

The APS specialist may determine that the client’s assets are rapidly diminishing because of financial exploitation by a family member, caretaker, or person with an ongoing relationship. In these cases, APS works cooperatively with HHSC OGS to protect the client’s assets by reaching a finding of Valid for the financial exploitation and submitting an emergency referral to HHSC. If APS obtains an EOPS, APS continues to gather evidence while HHSC OGS seeks temporary guardianship to address the rapidly diminishing assets.

For the steps to complete an emergency referral to HHSC, see 7341 Emergency Referral With Emergency Order for Protective Services (EOPS).

In addition, when a client’s assets are rapidly diminishing, the APS specialist also does the following:

  • Makes sure an evidence-driven investigations (EDI) subject matter expert (SME) is involved, if appropriate.
  • Documents in a contact detail narrative in IMPACT that the finding of Valid is preliminary and is being made so that APS can complete an emergency referral for guardianship services.
  • Continues investigating and gathering evidence.
  • Notifies the APS supervisor when evidence gathering is complete, whether the finding of financial exploitation is correct or needs to be changed.
  • Notifies HHSC OGS within three calendar days if the final finding of financial exploitation is anything other than Valid, and if any other allegations in the case are Valid.
  • Revises the Allegation Detail in IMPACT to reflect the final finding for financial exploitation if a preponderance of the evidence does not support a finding of Valid.
  • Validates other findings that support the client’s need for a guardian, if appropriate.
  • Notifies HHSC OGS of the need to withdraw the referral, if appropriate (for example, if the client’s needs were met without requiring HHSC OGS to file for guardianship).

HHSC’s Role in Investigations of Rapidly Diminishing Assets

HHSC OGS files an application for temporary guardianship if the client meets all other criteria for guardianship.

Although a certificate of medical examination (CME) is not required for temporary guardianship, HHSC OGS seeks one to provide to the court, if available in time.

If APS is unable to gather sufficient evidence to support the finding of Valid for financial exploitation and APS has insufficient evidence to validate any other finding, HHSC OGS may do either of the following:

  • Withdraw the application for temporary guardianship, if the hearing has not yet occurred. 
  • Seek dismissal from the guardianship, if the court has already granted guardianship.

HHSC OGS notifies APS immediately if the court chooses not to grant guardianship or HHSC OGS seeks dismissal from a guardianship. If the court does not grant temporary guardianship, HHSC OGS completes the guardianship assessment of the client (as in a standard referral) within 30 calendar days of the APS referral.

If the court grants temporary guardianship, HHSC OGS completes the guardianship assessment of the client during the temporary guardianship to determine whether it is appropriate to seek a permanent guardianship of the client.

7343 Case Management After Emergency Referral

APS February 2021

After APS submits the guardianship referral form to HHSC OGS, a guardianship specialist conducts an assessment. The APS specialist works jointly with the HHSC OGS guardianship specialist and shares information to promote a positive outcome for the client.

Within five calendar days after submitting the guardianship referral form to HHSC OGS, the APS specialist does the following:

  • Gives HHSC OGS copies by email, mail, fax, or hand delivery of any required minimum information (see 7320 Minimum Information for HHSC OGS Referrals) left blank on the referral form, as well as any other documentation in the case file that supports the referral, such as the following:
    • Current investigation (specifically, a copy of the APS Case Review).
    • Any relevant prior history not already provided in the referral form.
    • Medical assessments, determination of intellectual disabilities, or medical records.
    • Financial information.
  • Notifies HHSC OGS by email if any of the required minimum information cannot be provided in the five-day time frame and reaches an agreement with HHSC OGS about when APS will provide this information.

Ongoing Responsibilities of the APS Specialist

The APS specialist continues to manage the case and provide necessary services, as outlined in 7332 Case Management After Standard Referral, while HHSC OGS completes an expedited assessment.

7350 Joint Staffing of Referrals to HHSC OGS

APS February 2021

APS and HHSC OGS work together on guardianship referrals and participate in the joint staffing process (described below) to promote positive outcomes for mutual clients.

APS determines the validity of allegations of abuse, neglect, and financial exploitation and arranges for protective services. HHSC OGS determines whether guardianship services are appropriate and arranges for those services.

Denial of Guardianship Referral

APS cannot request a review of the decision when HHSC OGS declines to seek guardianship for either of the following reasons:

  • A certificate of medical examination (CME) finds the person has capacity.
  • The attorney responsible for filing the guardianship application believes there is not sufficient legal basis to proceed.

If the attorney responsible for filing determines the application lacks sufficient legal basis to proceed, HHSC conducts an internal legal review of the case.

If HHSC OGS determines that guardianship is not appropriate for the client, both of the following occur:

  • The written notification from HHSC OGS to APS about the outcome of the assessment explains the issues that guardianship would not resolve.
  • The APS supervisor coordinates with the HHSC OGS supervisor to schedule a joint staffing meeting to review alternatives.

Joint Staffing Process

The joint staffing meeting occurs within five business days of the conclusion of the assessment, or as agreed upon by the supervisors. All the following people participate in this meeting:

  • HHSC OGS supervisor.
  • HHSC OGS guardianship specialist.
  • APS supervisor.
  • APS specialist.
  • APS subject matter expert (SME), if appropriate.

The meeting is face-to-face if possible, or otherwise by conference call.

The APS specialist, APS supervisor, and APS SME share relevant information and try to reach an agreement with the HHSC OGS staff about what is in the best interest of the client.

Outcome of Joint Staffing With HHSC

After discussion, APS and HHSC OGS may agree to any of the following:

  • HHSC OGS will not file for guardianship, and APS will pursue less restrictive alternatives consistent with APS guidelines.
  • HHSC OGS may re-evaluate the case and instruct HHSC OGS staff to do a reassessment or obtain other information.
  • HHSC OGS will identify and examine the appropriateness of a suitable alternate guardian.
  • APS will change its position or accept the HHSC OGS decision.
  • HHSC OGS will change its position and file for guardianship.
  • APS and HHSC OGS are unable to reach an agreement.

Lack of Agreement Between HHSC and APS

If HHSC OGS and APS do not reach an agreement about the best alternative for the client, the APS supervisor or SME sends the case, including notes outlining the discussion and points of disagreement, to the APS program administrator.

The APS program administrator does the following:

  • Emails the HHSC OGS regional operations manager (ROM) or designee, requesting to appeal the guardianship decision.
  • Conducts an independent review of the information in the referral and the assessment before discussion with the ROM.
  • Discusses relevant issues with the ROM or designee during a conference call and tries to reach an agreement on the referral and the needs of the client. This call occurs within seven calendar days after APS emails the ROM to request an appeal.

The ROM notifies the APS program administrator in writing within five calendar days after the conference call whether HHSC OGS will seek guardianship.

If the ROM and the APS program administrator do not agree on the best approach for the client, the APS program administrator consults with the APS district director.

Within three calendar days after receiving the ROM’s decision, the program administrator may also send Form 2266 Request for Guardianship Review to the APS state office director of performance and policy development (DPPD) for consideration of whether to request a meeting of the Guardianship Review Committee (GRC). Once the DPPD receives this form from the APS program administrator, the DPPD has three calendar days to ask for a GRC meeting.

7360 Guardianship Review Committee (GRC)

APS February 2021

The Guardianship Review Committee (GRC) is a state office joint committee of HHSC OGS and DFPS representatives. The GRC is established to reach understanding and agreement when there is no resolution at the regional level about whether HHSC OGS will pursue guardianship or APS will seek another alternative.

The GRC meets and reviews cases as quickly as possible. The GRC seeks a resolution that meets all of the following criteria:

  • In the best interest of the client.
  • Compliant with the requirements of the memorandum of understanding (MOU).
  • Satisfactory to both HHSC OGS and DFPS.
Members of the Guardianship Review Committee

Category

DFPS Representatives

HHSC Representatives

Legal representation

DFPS attorney

HHSC OGS attorney

Program representation

APS director of performance and policy development (DPPD)

Guardianship program section director (GPSD)

Other members

APS state office program specialist and CPS state office program specialist *

Unit manager of policy and program development (UMPPD)

* A CPS representative is required only when the case involves children or a client who has aged out of CPS care. The CPS representative must have authority to make decisions for CPS. He or she may choose to invite an additional CPS staff member.

Other staff members may be asked to attend or provide information on a case-by-case basis, as determined by DFPS and HHSC OGS.

Procedures and Time Frames for a GRC Meeting

If the DPPD would like to have a GRC meeting, the following requirements apply:

  • The DPPD contacts the UMPPD and asks him or her to schedule a meeting.
  • The UMPPD schedules a GRC meeting within seven calendar days of receiving the meeting request.
  • If representatives of HHSC OGS and DFPS cannot agree on a time to meet within the seven-day period, the GPSD and the DPPD are notified of the delay. Scheduling problems should be resolved to make sure the meeting takes place promptly.
  • After the GRC meeting, the GPSD notifies DFPS and HHSC in writing of the decision within seven calendar days, unless further consultation is required with the HHSC assistant commissioner of access and intake or other appropriate people. The GPSD informs DFPS, within the same seven-calendar-day period, of any delays in reporting the decision.
  • If the decision results in HHSC seeking guardianship, HHSC OGS expedites the filing as much as possible.

7370 General Issues About HHSC OGS Referrals

APS February 2021

Cooperation between APS and HHSC OGS is necessary to protect and serve mutual clients whom APS determines appropriate for consideration for HHSC guardianship services. APS staff members also participate in ongoing joint staffings (meetings) and provide help and consultation as needed.

The memorandum of understanding between DFPS and HHSC OGS outlines the specific duties and responsibilities of both agencies, with the goal of ensuring positive outcomes for mutual clients.

See also:

7330 Standard Referrals to HHSC OGS

7340 Emergency Referrals to HHSC OGS

7371 Incomplete or Missing Information in the Referral

APS February 2021

HHSC OGS does not close a referral based on the APS specialist’s failure to provide information that is not related to the current APS investigation. For example, if the allegation is medical neglect, HHSC OGS does not close the referral because APS did not provide much financial information.

If HHSC OGS finds the referral to be significantly incomplete, the HHSC OGS supervisor emails the APS specialist and the APS supervisor about the need to provide the missing information within five calendar days of the referral. A referral is significantly incomplete if either of the following is missing:

  • A validated allegation of abuse, neglect, or financial exploitation.
  • The client’s address or contact or locating information.

If APS cannot find or provide the missing information, the APS supervisor or APS specialist contacts the HHSC OGS supervisor to discuss the situation and develop a solution. The APS supervisor and the HHSC OGS supervisor notify the APS district director and the HHSC OGS regional operations manager, respectively, of a proposed solution. The APS district director and the HHSC OGS regional operations manager coordinate a final decision, if necessary.

7372 Medicaid and the Guardianship Process

APS February 2021

HHSC OGS seeks guardianship of the person and estate, if appropriate, while the client’s Medicaid application is pending. APS guarantees payment for the cost of the proposed ward’s care during the guardianship process until one of the following occurs:

  • HHSC becomes guardian and accesses the ward’s income and other resources.
  • The Medicaid application is processed.

In some cases, the proposed ward is denied Medicaid coverage because he or she has more income or resources than Medicaid allows, but he or she does not have enough liquid assets to pay the cost of care. In these cases, APS pays the portion of the cost of care that the proposed ward’s accessible income or resources cannot cover while HHSC OGS makes a reasonable good faith effort to resolve the issue.

If the ward or proposed ward remains ineligible and HHSC OGS is not able to access his or her income or resources, then, following consultation with APS, HHSC OGS may withdraw its guardianship application or resign as guardian.

If HHSC OGS is granted guardianship while the client’s Medicaid application is pending, the APS specialist maintains an open Intensive Case Services or Maintenance stage, so APS can help pay the ward’s cost of care until HHSC OGS resolves the Medicaid eligibility. The APS specialist is not required to conduct monthly contacts or any other case actions, other than documenting service authorizations and other procurement methods to help pay the ward’s cost of care.

See 10900 Purchased Client Services (PCS).

7373 Certificate of Medical Examination (CME)

APS February 2021

While assessing the proposed ward for guardianship, if HHSC OGS believes the proposed ward’s capacity issues may have been resolved, the HHSC OGS guardianship specialist consults with the physician or other professional who provided the medical or professional evaluation to APS.

If, after consulting with the physician or other professional, the guardianship specialist still believes the proposed ward has capacity to consent, the guardianship specialist may obtain a CME for the purpose of guardianship assessment. The guardianship specialist gives the physician all information that APS provided, including the following:

  • All APS case information, including the referral form.
  • Any medical or psychological information.
  • Contact information for the APS specialist.

The APS specialist authorizes payment for the initial CME when the HHSC OGS guardianship specialist arranges it. HHSC OGS is responsible for obtaining the CME, which is required for proving the proposed ward is unable to manage finances or provide for his or her own care.

HHSC OGS pays for all subsequent CMEs. If HHSC OGS seeks a subsequent CME, HHSC OGS makes sure that the physician receives the information listed above. HHSC OGS gives the APS specialist a copy of the CME within five calendar days of receiving it.

7374 Determination of Intellectual Disability

APS February 2021

When the main reason for seeking guardianship is a diagnosis of intellectual disability, HHSC OGS obtains a determination of intellectual disability (DID) or its update or endorsement that complies with the requirements of Health and Safety Code §593.005. If the DID is dated more than 24 months before the guardianship application is filed, then HHSC OGS must obtain an update or an endorsement.

If APS finds an existing DID, the APS specialist gives HHSC OGS a copy of the document. When necessary, APS gives HHSC OGS reasonable help with getting a DID or its update or endorsement.

7375 Communication of Status

APS February 2021

HHSC OGS emails APS an update on the status of a guardianship referral every 30 days until a final decision is made about the referral, the guardianship is established, or the case is closed.

7376 Request for Extension on Filing Guardianship Application

APS February 2021

If HHSC OGS determines that the applicant will not be able to file the application for guardianship by the 70th calendar day from the date of referral, then HHSC OGS state office may request an extension. The extension request must occur by the 60th day after the referral. HHSC OGS makes the request in writing to the APS director of performance and policy development (DPPD) or designee with an explanation of why the extension is needed. An extension extends the deadline by 30 days.

The APS DPPD or designee gives the HHSC OGS section director or designee written notice that the extension is approved or denied. The APS DPPD does this within 48 hours of receiving the request, or by the next business day (if the 48-hour deadline does not fall on a business day).

The HHSC OGS section director or designee has 48 hours (or until the next business day) to request a review of a denial. Either the HHSC OGS section director or the HHSC assistant commissioner of access and intake sends this request to the APS associate commissioner or designee. The APS associate commissioner or designee reviews the request within 48 hours.

HHSC OGS immediately files for guardianship if either of the following occurs:

  • The extension is not granted, and the applicant cannot file for guardianship within the 70-day time frame.
  • DFPS approves an extension, but the applicant fails to file during the 30-day extension.

7377 Less Restrictive Alternative and Another Referral Within Six Months

APS February 2021

A new referral to and assessment by HHSC OGS is required if both of the following occur:

  • APS puts in place a less restrictive alternative after a guardianship referral.
  • APS receives a new intake and validates abuse, neglect, or financial exploitation of the same client within six months.

The new referral to HHSC OGS includes the new information about what has happened since the previous referral. HHSC OGS uses the previous assessment information and the new information that APS provides.

Both HHSC OGS and DFPS expedite the referral and assessment process, except in situations where either of the following applies:

  • The client does not have enough financial resources and is unlikely to become eligible for benefits to pay for care.
  • Guardianship will not provide protection from abuse, neglect, or financial exploitation because the client does not cooperate.

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