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

APS February 2021

Using appropriate legal resources is essential to effectively delivering adult protective services in certain situations. Staff in each region communicate and cooperate with local legal resources.

Because the Human Resources Code Chapter 48 allows court action in certain cases, the APS specialist routinely works with:

  • District or county attorneys.
  • Judges.
  • HHSC Office of Guardianship Services specialists.
  • Law enforcement agencies and other officials with jurisdiction in the APS specialist’s area.

The DFPS regional attorney supports the APS specialist in understanding and using the proper local legal resource to serve the client.

See 13100 Initiating Legal Actions.

13100 Initiating Legal Actions

APS February 2021

There are several legal actions that the APS specialist may use when investigating allegations of abuse, neglect, or financial exploitation or providing protective services. Legal actions may be initiated by APS or other local officials, such as law enforcement or mental health authorities. The ultimate goal of initiating legal actions is always to ensure client safety and well-being.

The APS specialist must ensure that all legal actions are the least restrictive alternative. The APS specialist initiates legal actions only after consulting with the supervisor and, as appropriate, the regional attorney.

After consulting with the supervisor and regional attorney, the APS specialist may initiate the following legal actions using forms located on APS Legal Forms:

The APS specialist is not required to obtain supervisory approval before recommending either of the following:

  • Representative payee.
  • Texas Family Code protective order, when the victim is the applicant.

The supervisor (or specialist, with supervisory approval) must notify the district director or designee of the potential for legal action.

Where to File APS Court Actions

APS files court actions in the county court that has jurisdiction in the county where the client resides. This court may be known as any of the following:

  • County court.
  • County court-at-law.
  • Statutory court.

The county clerk’s office files the APS case with the correct court, if more than one court exists.

13110 Legal Representation

APS February 2021

Either of the following people can represent DFPS in legal actions filed under the Human Resources Code, unless the representation would be a conflict of interest:

  • The prosecuting attorney representing the state in criminal cases in county court.
  • In a county with a population of more than 2.8 million (such as Harris County), the prosecuting attorney representing the state in civil cases in the county court.

Human Resources Code §48.210

The APS specialist contacts the county or district attorney to represent DFPS in the legal proceeding. When seeking a legal action, the APS specialist provides a copy of the relevant Human Resources Code statutes to a county or district attorney representing APS. Attorneys outside of DFPS may not be as familiar with the requirements DFPS must meet as a result of past legal decisions by the U.S. Court of Appeals or their implications for DFPS employees.

If the county or district attorney is unable or unwilling to represent DFPS or deems that a conflict of interest exists, the specialist contacts the regional attorney immediately for representation.

13120 Consulting With Regional Attorneys

APS February 2021

The regional attorney is the primary legal resource for the APS specialist. The regional attorney provides expertise regarding the following:

  • Legal procedures.
  • Courtroom protocol.
  • Matters involving interpretations and applications of the scope and extent of DFPS authority, as well as state and federal law.
  • The training of staff in the legal aspects of adult protective services.

See 13550 Authorization for EOPS Before Obtaining a Court Order.

13130 Court Costs and Filing Fees

APS February 2021

DFPS is exempt from paying court costs, filing fees, county clerk’s fees, and other fees imposed by law for services rendered. This applies to any legal actions initiated by DFPS, as outlined in 13100 Initiating Legal Actions.

Texas Human Resources Code §40.062

This provision does not apply to legal actions that are not initiated by DFPS. For example, if a family member applies for guardianship or petitions the court for commitment of a client, the family member is not exempt from court costs and filing fees, even if the APS specialist recommended initiating the legal action to remedy abuse, neglect, or financial exploitation.

13131 Filing Fees for Eviction of Alleged Perpetrator

APS February 2021

Chapter 24 of the Texas Property Code identifies the court of jurisdiction and the procedures for evictions. The client may request assistance from APS to evict the alleged perpetrator. If the APS specialist agrees that evicting the alleged perpetrator is necessary to alleviate abuse, neglect, or financial exploitation of the APS client, purchased client services (PCS) funds may be used.

Since evictions are not initiated by DFPS, but rather on behalf of a client, the client is not exempt from paying fees. The APS specialist must explain to the client that the eviction is not an action initiated by DFPS.

See:

13900 Family Violence Protective Orders Against a Perpetrator

13910 APS Specialist’s Role in Assisting a Client With a Protective Order

13140 Required Documentation of Legal Actions

APS February 2021

The APS specialist documents all legal actions he or she initiated to remedy abuse, neglect, or financial exploitation in the Legal Action and Outcome page of IMPACT. Legal actions documented on this page include actions related to petitions brought by DFPS, the family, or other interested parties at the suggestion of APS staff.

The APS specialist fills out the required fields and checks the Document in Case File box to indicate a copy of the legal document is in the paper file. If someone other than APS took the legal action, the APS specialist also checks the Action Taken by Family/Other box.

The specialist selects from the legal actions and subtypes on the following table:

Action

Subtype

Court Authorized Entry

Application for Order Authorizing Forcible Entry

Original Petition for Emergency Order for Protective Services

  • Original Petition for Emergency Order for Protective Services
  • Motion for Extension of Emergency Order

Injunction Against Interference

Petition and Order for Injunctive Relief Against Interference With Protective Services

Civil Commitment

  • Application Emergency Detention
  • Application for Temporary Mental Health Services
  • Application for Extended Mental Health Services
  • Application for Mental Retardation Services
  • Other

Family Protective Order

Application for Protective Order

Production of Records

Petition and Order for the Production of Records

Client Action on APS Investigation

  • Court Removal of Guardianship
  • Criminal Prosecution
  • Other (for example, Eviction of the Alleged Perpetrator)

The APS specialist must also select one of the following outcomes for each action:

  • Granted
  • Denied
  • Dismissed
  • Approved
  • Disapproved
  • No Court Action Required
  • Other

Documenting the Guardianship Detail Page

The APS specialist completes the Guardianship Detail page when a client receiving APS services has a guardian, including either of the following situations:

  • The client had a guardian before APS received a report.
  • The client had another person, entity, or contractor appointed as guardian during APS involvement.

See:

7330 Standard Referrals to HHSC OGS

7340 Emergency Referrals to HHSC OGS

7350 Joint Staffing of Referrals to HHSC OGS

13150 Legal Forms Completed by the APS Specialist

APS February 2021

An APS specialist may complete pre-written legal forms on APS cases for a district, county, or regional attorney who is representing DFPS in a legal proceeding while under the direction and supervision of that attorney.

The attorney is responsible for the following:

  • Drafting language for the forms and helping the specialist complete the forms.
  • Ensuring that the forms are completed correctly.
  • Reviewing and signing the forms before they are filed with the court.

The APS specialist does not sign any legal pleading, other than the following:

  • The affidavit that is attached to a pleading for a legal action filed by APS that sets forth the relevant evidence.
  • An affidavit for guardianship application, if requested by the HHSC Office of Guardianship Services.

See 10730 APS Role in Completing Hospital and Nursing Home Admission Forms.

How to Complete Legal Forms

Pre-written legal forms include petitions, motions, and orders. See APS Legal Forms on the DFPS intranet. The APS specialist completes the forms by filling in the blanks with the following information:

  • Names
  • Addresses
  • Dates of birth
  • Counties of birth
  • Relationships
  • Similar factual information

The APS specialist may also select the paragraph appropriate for a particular case from a list of pre-written paragraphs provided in the legal form to place at the point designated in the legal form. No legal knowledge or legal judgment is required to fill in the blank or select the right paragraph, only a knowledge of the facts.

If the APS specialist is unable to determine how to fill in a blank or which paragraph to select, the specialist must contact the attorney for instructions on how to proceed. Doing any of the following requires legal judgment and must be completed by the attorney or under his or her specific direction:

  • Drafting a new paragraph.
  • Altering an existing paragraph.
  • Creating any new document.

13160 Requesting a Transaction Hold from a Financial Institution

APS February 2021

The Texas Finance Code and the Texas Securities Act allow and sometimes require financial institutions and securities professionals to place a hold on transactions in certain cases of suspected financial exploitation of alleged victims.

Texas Finance Code, Chapter 281

Texas Securities Act, Vernon’s Civil Statutes, Article 581-1 et seq

APS requests a transaction hold only when all other options have been exhausted. If a financial institution or securities professional reported the allegation, the APS specialist does the following:

  • Determines if the financial institution or securities professional has placed or will place a hold in accordance with their internal policies.
  • Requests a written decision on the hold.

However, the APS specialist is not required to wait for a written decision before requesting a hold. If the financial institution or securities professional has not and will not place a hold, the APS specialist may request a hold upon approval from the district director or designee.

Examples of when requesting a transaction hold may be appropriate include the following:

  • There are indicators an alleged victim may lack capacity to consent to and understand the consequences of transactions, and the alleged victim does not have a responsible and credible party to help manage his or her finances.
  • An alleged victim’s assets are rapidly diminishing as a result of suspected financial exploitation.
  • It is suspected an alleged victim is being forced to make transactions through undue influence or coercion for the benefit of an alleged perpetrator.

As part of an investigation, the APS specialist may request that an alleged victim’s financial institution or securities professional place a 10-business-day hold on any transaction. If necessary, the APS specialist may request the hold be extended for up to 30 business days after the initial 10 business days expire. The specialist may request an increase or decrease in the amount of the transaction hold as part of the extension. However, the specialist must request a new 10-business-day transaction hold if it is determined that a hold on a different transaction is required.

APS does not have the authority to request an overall account freeze. Placing a transaction hold does not include freezing any accounts or assets.

APS uses Purchased Client Services (PCS) funds to assist with any added expenses the alleged victim incurs as a result of a transaction hold requested by APS on a case-by-case basis in consultation with the district director or designee.

APS maintains open communication with the financial institution or securities professional regarding the suspected financial exploitation. APS follows 16122 Case Information to Others to Help Clients Get Services to determine what information may be disclosed to the financial institution or securities professional.

When a financial institution or securities professional reports suspected financial exploitation, the APS specialist does the following to determine if APS will request a transaction hold:

  • Contacts the financial institution or securities professional to determine if a transaction hold has been or will be placed and requests the decision in writing.
  • Immediately consults with supervisor, program administrator, and regional attorney about whether to request an initial 10-business-day transaction hold.
  • Obtains final approval to request the transaction hold from the district director or designee.
  • Completes the initial transaction hold letter, Request To Place a Hold on Certain Transactions (located in the APS section of the DFPS intranet), and sends it to the regional attorney for review.
  • Signs and sends the letter to the financial institution or securities professional.
  • Completes and submits Form 2272 Notification of High Profile APS Case as outlined in 2332 High-Profile Cases.

In addition to the transaction hold, the APS specialist requests the financial institution’s or securities professional’s assessment of the suspected financial exploitation as outlined in the Texas Finance Code or the Texas Securities Act.

The APS specialist consults with the supervisor, program administrator, regional attorney, and district director or designee to determine if an additional hold for 30 business days following the expiration of the initial hold is required. If the additional hold is needed, the APS specialist signs and sends the extension letter, Request to Extend Hold on Certain Transactions (located in the APS section of the DFPS intranet), to the financial institution or securities professional.

If the APS specialist, in consultation with the supervisor, program administrator, regional attorney, and district director, determines the transactions hold is no longer necessary before the hold expires, the APS specialist sends letter, Request to Discontinue Hold on Certain Transactions (located in the APS section of the DFPS intranet), informing the financial institution or securities professional the hold is no longer necessary.

13200 Court-Authorized Entry

APS February 2021

If an APS specialist is denied access to a client’s home (for example, because the client does not give permission or has posted No Trespassing signs), the specialist uses all reasonable means to obtain consent to enter before seeking court action.

Examples of reasonable means include the following:

  • Attempting to build rapport with the client, family member, or caretaker while remaining outside the home.
  • Making additional visits to the home, if the first attempt at building rapport is unsuccessful.
  • Enlisting an individual close to the client to assist in gaining entry into the home.

If reasonable means are unsuccessful, DFPS may petition the court for authorization to enter. The court with jurisdiction may authorize entry to a client’s home to investigate allegations. If the court determines that it is necessary, a peace officer accompanies the APS specialist to assist as needed.

Human Resources Code §48.153

A court order is always required for forcible entry. In most cases, the caretaker or family member allows the APS specialist access to the premises when presented with a combination of a court order and law enforcement.

Seeking an Order for Court-Authorized Entry

When seeking an order for a court-authorized entry, the APS specialist does the following:

  • Makes sure that all reasonable means to obtain permission to enter the client’s home have been attempted.
  • Follows the general procedures in 13100 Initiating Legal Actions.
  • Gathers information that needs to be in the court order, including but not limited to how the APS specialist will gain entry into the client’s residence and which law enforcement entity will accompany APS.
  • Summarizes why APS cannot gain entry and any information about the abuse, neglect, or financial exploitation.
  • Works closely with the regional attorney to adapt the standard legal form to fit the specific situation.
  • Appears with the attorney representing APS at the ex parte hearing.
  • Obtains a copy of the court order as soon as it is available.
  • Makes necessary arrangements for a locksmith, landlord, or other person to assist in gaining entry to the client’s residence if the door is locked.
  • Makes arrangements for law enforcement to help carry out what is stated in the order.

See:

13140 Required Documentation of Legal Actions

13120 Consulting With Regional Attorneys

13150 Legal Forms Completed by the APS Specialist

13300 Access to Records

APS February 2021

DFPS has the authority to access any records or documents, including client-identifying information and medical and psychological records, necessary for any of the following:

Any person or agency that has a record or document that DFPS needs to perform its duties must make the record or document available without unnecessary delay.

Accessing Bank Records

If the APS specialist is unable to access bank records, then the specialist sends the Request for Financial Records letter to give the bank an opportunity to comply with the request for records before initiating court action.

If access to records is denied, APS may file a petition with the court to request that the court order access.

The person denying access is entitled to notice and a hearing on the petition. If the court decides in favor of the petition, the court orders the person or entity who denied access to the records to allow DFPS to have access under the terms and conditions in the court order.

DFPS is exempt from paying fees that are required to obtain medical and mental health records needed for investigations.

Human Resources Code §48.154(b)

Seeking Legal Action to Access Records

When seeking legal action to access records, the APS specialist does as follows:

  • Uses all reasonable means to obtain the records, including but not limited to the following:
    • Attempting to gain consent from the client or showing a copy of the Human Resources Code to the person who is denying access.
    • Asking an APS attorney to talk with the record holder’s attorney, if available.
  • Follows the instructions in 13100 Initiating Legal Actions.
  • Completes legal forms for the county attorney that includes the following information:
    • Client’s name.
    • Description of the record or document.
    • Reason APS needs access to the record or document.
    • Summary of attempts made to obtain access to the record or document.
  • Attends the hearing with the attorney representing APS and testifies.

See:

13140 Required Documentation of Legal Actions

13120 Consulting With Regional Attorneys

13150 Legal Forms Completed by the APS Specialist

13400 Interference With Investigation or Protective Services

APS February 2021

The Human Resources Code §48.155 prohibits a person from interfering with an investigation or the provision of services to a client.

Examples of prohibited actions include, but are not limited to, a family member or caretaker who does any of the following:

  • Forbids a client from seeking needed medical care.
  • Prevents entry of a home health worker into the client’s home.
  • Terminates the client’s home health worker.

Seeking Legal Action to Prevent Interference

The APS specialist does as follows when seeking legal action to prevent interference with an investigation or protective services:

See:

13140 Required Documentation of Legal Actions

13120 Consulting With Regional Attorneys

13150 Legal Forms Completed by the APS Specialist

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

APS February 2021

APS may request an order from a court to authorize APS to take necessary actions to protect a client in a situation of abuse, neglect, or financial exploitation that is life-threatening or a threat to physical safety.

Human Resources Code §48.208(b)

To request an Original Petition for Emergency Order for Protective Services (EOPS), the APS specialist follows the procedures in 13100 Initiating Legal Actions.

The APS specialist petitions the court by preparing Form 5000 Original Petition for Emergency Order for Protective Services when all of the following apply:

  • A client is experiencing abuse, neglect, or financial exploitation presenting a threat to life or physical safety.
  • A client lacks the capacity to consent to receive protective services.
  • APS cannot obtain consent from a spouse, relative, or guardian.

The EOPS is valid for 10 calendar days. The court, after notice and a hearing, may extend an EOPS for a period of not more than 30 days after the date the original EOPS expires. The court, after notice and a hearing where good cause is shown, may grant a second extension of an EOPS of not more than an additional 30 days (a total of 70 aggregate days). The court may not grant more than two extensions of the original EOPS. An extension order that ends on a Saturday, Sunday, or legal holiday is automatically extended to 4 p.m. on the first succeeding business day. The court may modify or terminate the EOPS on petition of APS, the client, or any person interested in the client’s welfare.

All forms required to request an EOPS or an extension are on the DFPS intranet.

While the EOPS is in effect, APS acts as a surrogate decision maker for the client. Because this order impacts the client’s constitutional right of self-determination, the order may be granted only in limited circumstances outlined in Human Resources Code §48.208(b).

See:

13140 Required Documentation of Legal Actions

13200 Court-Authorized Entry

13550 Authorization for EOPS Before Obtaining a Court Order

13510 Completing a Motion for EOPS

APS February 2021

The APS specialist is responsible for fully stating the facts and observations in the body of the motion and order for an EOPS, including the following information:

  • The nature of the abuse or neglect.
  • How the abuse or neglect presents a threat to life or physical safety of the client.
  • The evidence that shows the client lacks the capacity to consent to or refuse services.
  • The services that are necessary to remove the threat to life or physical safety, including any of the following:
    • Removal of the client to safer surroundings.
    • Emergency or routine medical treatment.
    • Other services as necessary.
  • A request for assistance from law enforcement, if needed.
  • A verification of the petition, sworn to before a notary, after approval by the attorney representing DFPS.

If the specialist obtained a doctor’s statement, he or she includes it with the motion. In lieu of a doctor’s statement, the specialist can include a statement from another professional as outlined in When a Physician Is Not Available in 13520 Pre-Removal Medical Report. The specialist then files all documents with the clerk.

13520 Pre-Removal Medical Report

APS February 2021

Before seeking an EOPS, APS must seek an opinion from a medical doctor stating whether the client lacks the capacity to consent to or refuse services. The doctor must complete Form 5010 Pre-Removal Medical Report (Exhibit B).

Human Resource Code §48.208(b)

 When a Physician Is Not Available

If, after making a good faith effort, the APS specialist determines that a physician is unavailable to provide the medical report, the law provides that certain other professional assessments may be substituted. These include any of the following assessments:

  • The client’s health status performed by a physician’s assistant or an advanced practice nurse not employed by DFPS. The APS specialist uses Form 5011 Health Status Report to obtain this information.
  • The client’s psychological status performed by a licensed psychologist, master social worker, or licensed professional counselor not employed by DFPS, and who has training and expertise in issues related to abuse, neglect, and financial exploitation. The APS specialist uses Form 5012 Psychological Status Report to obtain this information.
  • An assessment performed by a registered nurse and confirmed by a physician. The APS specialist uses Form 5013 Nursing Assessment Report to obtain this information. The APS specialist ensures that the registered nurse knows the name of the physician who will receive the nursing assessment and how the nurse will communicate the information to the physician.

See 13530 Post-EOPS Physician’s Report.

Filing a Motion for EOPS Without a Physician’s or Other Professional’s Report

In some situations, there may not be a physician or other professional available to assess the client and support the APS specialist’s opinion. The judge may determine whether the APS specialist’s evidence is sufficient to support issuing an EOPS before removing a client. The APS specialist documents clearly why no medical or psychological assessment could be obtained.

In situations where the APS specialist provides emergency protective services before obtaining the medical report, the court must find that both of the following apply:

  • An immediate danger to the health or safety of the client exists.
  • There is not sufficient time to obtain the medical report.

13530 Post-EOPS Physician’s Report

APS February 2021

If the APS specialist did not obtain a physician’s report before issuance of an EOPS, a physician must examine the client within 72 hours of removal. The APS specialist provides the physician with Form 5001 Post-EOPS Physician’s Report form for this assessment. APS must file the Post-EOPS Physician’s Report with the court as soon as possible. This applies even if the specialist obtained another type of professional assessment.

In 13520 Pre-Removal Medical Report, see When a Physician Is Not Available and Filing a Motion for EOPS Without a Physician’s or Other Professional’s Report.

13540 Court Proceedings for EOPS

APS February 2021

After the process described in 13510 Completing a Motion for EOPS is complete, the attorney representing APS seeks an immediate hearing before the judge. This is called an ex parte hearing, because no prior notice is given to the client, which would allow the client to oppose the motion. Court procedures during an ex parte hearing vary by court. Some judges will sign the order after reviewing the motion without asking the APS specialist to testify. Others may request testimony from the APS specialist.

Judges may appoint an attorney ad litem for the client before asking questions of the APS specialist. In this situation, the attorney ad litem may question the APS specialist. If the judge does not appoint an attorney ad litem during the hearing, the court must appoint one in the order. The court may also order law enforcement to assist APS in carrying out the EOPS. The signed court order becomes APS’s authority to act.

13550 Authorization for EOPS Before Obtaining a Court Order

APS February 2021

If the APS specialist cannot obtain an EOPS because the court is closed on a Saturday, Sunday, legal holiday, or after 5 p.m., the specialist may remove a client to safer surroundings and authorize medical treatment and other services. The APS specialist may also act without a supporting medical or psychological opinion in the case of an after-hours removal if necessary. The APS specialist must try to obtain a physician’s or other professional’s report before providing emergency protective services even when there is no court order.

The APS specialist exercises this authority only when all of the following occur:

  • The client is experiencing abuse or neglect presenting a threat to life or physical safety.
  • The threat to life or physical safety is imminent and the client is likely to suffer serious harm or death before the next business day unless protective services are provided.
  • Behavioral and environmental factors indicate the client may lack the capacity to consent to receive protective services, and the specialist cannot obtain consent.
  • The specialist cannot obtain an emergency order under Human Resources Code §48.208 because the court is closed.
  • The specialist has supervisory approval.

If a client is removed under this provision, APS staff does as follows:

  • Clearly documents step-by-step actions explaining why APS was unable to obtain a court order earlier in the day before courts closed or the action could not wait until the next business day to seek a court order.
  • Obtains an EOPS no later than 4 p.m. on the next business day. When obtaining the EOPS, APS staff follow the procedures in 13100 Initiating Legal Actions. This process includes consulting with the regional attorney and obtaining a Pre-Removal Medical Report (Exhibit B).

If a client’s home will be vacant as a result of an EOPS, the APS specialist notifies the appropriate law enforcement agency of the vacancy and requests that law enforcement monitor the residence to ensure the safety of the client’s property.

See:

13100 Initiating Legal Actions

13120 Consulting With Regional Attorneys

13551 Emergency Removals Without a Court Order

APS February 2021

APS staff may have difficulty obtaining assistance with emergency removals without a court order unless immediate and serious risk of harm to the client is apparent. In these situations, it may be necessary to provide emergency medical personnel Form 5004 Notice of Removal and a copy of Human Resources Code §48.208(h) to demonstrate that APS can take action without a court order under certain circumstances.

When APS Cannot Obtain a Court Order the Next Business Day

If, for any reason, APS cannot obtain a court order before 4 p.m. the next business day, APS staff must terminate emergency services by doing the following:

  • Cease providing protective services.
  • If necessary, make arrangements for the immediate return of the client to his or her residence, place of removal, or other suitable setting.

13552 Notifying the Regional Attorney of the Client’s Death

APS February 2021

If a client is removed but dies before APS obtains the court order the next business day, the specialist notifies the regional attorney. The Office of General Counsel determines whether more action is needed.

See:

12100 Alleged Victim Dies During the Investigation

12200 Client Dies During a Service Delivery Stage

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

APS February 2021

The emergency order expires on the earlier of:

  • The end of the 10th calendar day after the date the order is issued.
  • The end of the 10th calendar day after the date the client was removed to safer surroundings, if the client was removed when the court was closed and an order could not be obtained. See also 13550 Authorization for EOPS Before Obtaining a Court Order.

The order may expire or terminate at a different time if any of the following apply:

  • The court extends the order past the initial 10-day period.
  • The 10-day period ends on a Saturday, Sunday, or legal holiday, in which event the order is automatically extended to 4:00 p.m. on the next business day.
  • The physician’s medical report states that the client is physically or mentally able to consent to services or that the client is not suffering from abuse, neglect, or financial exploitation presenting a threat to life or physical safety.

Practice varies among courts, but many courts require that a full hearing on the EOPS be held on the day the order expires. This provides an opportunity for the attorney ad litem to question APS about the actions taken before APS sought the EOPS and about what has happened since. In addition, if APS did not obtain a medical doctor’s assessment of the client before seeking the EOPS, this hearing gives both the judge and the attorney ad litem an opportunity to review the mandatory doctor’s assessment (Form 5001 Post-EOPS Physician’s Report) obtained not later than 72 hours after the time the provision of protective services begins.

The court may modify or terminate the order on petition of DFPS, the client, or any person interested in the client’s welfare.

13570 Extension of a Court Order for Emergency Protective Services

APS February 2021

APS may ask the court for a 30-day extension of the initial 10-day EOPS, if the client’s safety requires it. The court may grant no more than two 30-day extensions past the original 10-day order (a total of 70 days). The court may grant the motion to extend the EOPS only after holding a full hearing. In some cases, the court may choose to combine the 10-day hearing with the motion for extension hearing. If granted, the Motion and Order for Extension of EOPS allows APS to continue to act as surrogate decision-maker for the client. An extension order that ends on a Saturday, Sunday, or legal holiday is automatically extended to 4 p.m. on the next business day.

The APS specialist may request an extension to do the following:

  • Make arrangements for the immediate protection of the client, which could include facilitating placement in a safe environment, medical assessment and treatment, or further psychological evaluation.
  • Establish a service plan that will alleviate the state of abuse, neglect, or financial exploitation.

This service plan may include any of the following:

  • Attempts to locate family or friends who may be able to resolve the state of abuse, neglect, or financial exploitation.
  • Voluntary placement in a long-term care facility.
  • Emergency referral to HHSC Office of Guardianship Services for a guardianship assessment.

Texas Human Resources Code §48.208(i)

See:

13140 Required Documentation of Legal Actions

13700 Guardianship and Its Sub-Items

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

13600 Types of Legal Documents an APS Specialist May Encounter

APS February 2021

While conducting investigations and providing protective services, an APS specialist may encounter numerous types of legal documents that provide legal protection for the client or explain the client’s wishes in the event of a medical emergency. Examples of legal documents may include, but are not limited to, the following:

  • Will
  • Statutory Durable Power of Attorney
  • Trust
  • Living Will
  • Medical Power of Attorney

An APS specialist must:

  • Be familiar with different kinds of legal documents.
  • Refrain from providing legal advice when discussing any of these documents with a client.

13610 Financial Documents

APS February 2021

Statutory Durable Power of Attorney (DPOA)

A durable power of attorney is a legal document in which one person (called a grantor) authorizes another person (called an agent) to take certain actions described in the document. A durable power of attorney authorizes the agent to conduct business beginning on a stated date or the date that the DPOA is signed. The DPOA may end on a date stated in the document, or if no date is stated, when the grantor revokes it. All powers of attorney end when the grantor dies.

Trust

A trust is a legal document used for planning the management of a person’s estate. It names a person or entity as a trustee. Depending on the terms of the trust, the trustee may take actions concerning the estate.

Representative Payee

A representative payee is someone appointed by the U.S. Social Security Administration (SSA) to receive funds on behalf of a beneficiary who is unable to administer his or her own finances. SSA determines when to appoint a representative payee for a client who receives Social Security benefits.

13620 Health Care Directives

APS February 2021

There are several alternatives available in Texas that allow an individual to do either of the following:

  • Give advance instruction to physicians regarding the use of life support in the event of terminal illness.
  • Designate an agent to make health care decisions on his or her behalf if he or she becomes incapacitated.

These alternatives include both of the following:

  • Directive to physicians (also known as a living will).
  • Medical power of attorney for health care.

13621 Directive to Physicians (Living Will)

APS February 2021

A directive to physicians is a legal document in which a person, referred to as a declarant, instructs a physician regarding his or her wishes related to one of the following:

  • Withholding or withdrawing life-sustaining procedures in the event of a terminal or irreversible illness.
  • Designating someone to make this decision in the event the declarant becomes comatose, incompetent, or otherwise mentally or physically incapable of communication.

Any adult who has mental capacity may execute a directive to physicians either verbally or in writing. An example of the form is provided in Section 166.033 of the Health and Safety Code.

13622 Medical Power of Attorney

APS February 2021

A medical power of attorney (MPOA) allows a person (referred to as a principal) to designate another person (referred to as an agent) to make health care decisions on his or her behalf in the event he or she becomes comatose or incapacitated. The principal may choose to do either of the following:

  • Limit the health care decisions that the agent can make.
  • Give the agent full authority to make all health care decisions and designate an alternate agent if the designated agent is unable or unwilling to act.

Any adult who has not been adjudicated as incapacitated may execute an MPOA by signing the document in the presence of two witnesses.

13630 Surrogate Decisions in Hospitals or Nursing Homes

APS February 2021

If a person has not issued a directive to physicians or a medical power of attorney, a surrogate can consent to medical treatment on behalf of an adult patient in a hospital or nursing home, if the patient is any of the following:

  • Comatose.
  • Incapacitated based on reasonable medical judgment.
  • Otherwise mentally or physically incapable of communication.

Texas Health and Safety Code §313.004

People who can consent to medical treatment on behalf of the patient include any of the following (in order of priority):

  1. The patient’s spouse.
  2. An adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act as sole decision-maker.
  3. A majority of the patient’s reasonably available adult children.
  4. The patient’s parents.
  5. The individual clearly identified to act for the patient by the patient before the patient became incapacitated, the patient’s nearest living relative, or a member of the clergy.

Surrogate decision-makers cannot authorize any of the following:

  • Voluntary in-patient mental health services.
  • Electro-convulsive treatment.
  • The appointment of another surrogate decision-maker.

Decisions to Withhold or Withdraw Life-Sustaining Treatment

If the patient lacks a legal guardian or an agent under a medical power of attorney, the attending physician and the surrogate decision-maker may make a treatment decision that includes withholding or withdrawing life-sustaining treatment.

The person responsible for medical treatment decisions must base the decisions on the desires of the patient, if known.

If the patient has no other surrogate decision-maker, the attending physician, with agreement from a second physician who is not involved in the case, can decide to withdraw a patient from life-sustaining treatment.

The court that has jurisdiction resolves any disputes regarding the rights of a party to act as a surrogate decision-maker.

See 3420 Consent to Medical Procedures or Treatment.

13640 Surrogate Decisions in Licensed ICF-IID Facilities

APS February 2021

A surrogate or a surrogate consent committee can make a decision about major medical and dental treatment, psychoactive medication, or a highly restrictive procedure of an adult client of an ICF-IID (intermediate care facility for individuals with intellectual disabilities), when both of the following apply:

  • The client is not capable of making a decision on treatment.
  • The client does not have a legal guardian.

Texas Health and Safety Code §597.021

Texas Health and Safety Code §597.041

Below is a list of adults who may give consent for medical or dental treatment. The list is in order of descending preference. The person who gives consent must have the capacity to make a decision and be willing to do so on behalf of the client. The person may be an actively involved family member, such as the following:

  1. Spouse.
  2. Adult child who has the waiver and consent of all other actively involved adult children of the client to act as the sole decision-maker.
  3. Parent or stepparent.
  4. Adult sibling who has the waiver and consent of all other actively involved adult siblings of the client to act as the sole decision-maker.

If a client does not have a legal guardian or surrogate decision-maker available, the ICF-IID facility must file an application with HHSC for a treatment decision.

Only the court with jurisdiction may resolve a dispute about the right of a party to act as a surrogate decision-maker.

HHSC and the ICF-IID facility are responsible for obtaining the necessary consent for any medical or dental treatments of ICF-IID clients. If an intake is received in which DFPS is being asked to seek guardianship of a client in an ICF-IID facility to make these decisions, the SWI specialist refers the intake to HHSC.

See 3420 Consent to Medical Procedures or Treatment.

Texas Health and Safety Code §597.043(c)

13700 Guardianship

APS February 2021

A guardian is a person or entity appointed by the court to have full or limited authority over an incapacitated person (called a ward), depending on the incapacitated person’s specific mental or physical conditions. 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 someone who is substantially unable to do any of the following for himself or herself:

  • Provide food, clothing, or shelter.
  • Care for physical health.
  • Manage financial affairs.

Texas Estates Code §1002.017

13710 Guardian of the Person, Estate, or Both

APS February 2021

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.

Temporary and Permanent Guardianships

Guardianships may be temporary or permanent. A temporary guardianship is created only in an emergency in which there is imminent danger to the ward, the ward’s 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 court ends the guardianship.

Order of Preference for Appointment of Guardian

The court must do the following:

  • Consider the wishes of the proposed ward prior to appointing a guardian.
  • Appoint a guardian according to the circumstances and considering the incapacitated person’s best interests.

Below is the order of preference for appointment of a guardian if more than one applicant is equally eligible to serve:

  1. The spouse.
  2. The nearest kin.
  3. Any other person acceptable to the court, if the spouse or the nearest kin is disqualified or refuses to serve.

Texas Estates Code §1104.102

Before asking a family member or another person to consider serving as guardian of a client, the APS specialist must determine whether the spouse, nearest kin, or another interested party meets the following criteria:

  • Is willing to serve.
  • Would act in the ward’s best interest.
  • Appears to be appropriate as defined by Texas Estates Code.

Disqualifications of Guardians

A person is disqualified to be appointed as guardian if the person is any of the following:

  • 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.
  • A person, institution, or corporation found unsuitable by the court.

Texas Estates Code §1104

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.

13800 Mental Health Commitment

APS February 2021

When a person becomes seriously mentally ill, temporary hospitalization at an in-patient psychiatric hospital may be the recommended treatment. A person may enter a psychiatric hospital voluntarily. However, a person has a right to refuse treatment. 

Texas Health and Safety Code §574.034

Basis for Commitment

A person who refuses hospitalization may be committed to a court-ordered hospitalization, if the court finds that the person is mentally ill to the degree that there is a substantial risk of serious harm to himself or herself or to others unless the person is immediately restrained.

Lengths of Hospitalizations

All court-ordered commitments are temporary, lasting for a period of up to 90 days. Within that 90-day period, the treating physician at the hospital determines when the patient’s illness has stabilized sufficiently for the patient to be released. Most commitments last a month or less.

If the physician determines that the patient needs a commitment for longer than 90 days, the hospital seeks a second 90-day commitment. In very rare cases, a patient may need lengthy hospitalization. In this event, the hospital seeks an extended court-ordered hospitalization.

Due Process

Because a court-ordered hospitalization is a significant infringement on a person’s constitutional rights, due process of law is required.

A patient is entitled to a full trial before a jury, legal representation, and the right to cross-examine all witnesses. Since the patient may be uncooperative, the law provides a process allowing the patient to be taken into custody and detained for psychiatric examination and protection until the trial can be held on the temporary order.

Out-Patient Treatment

In the hearing, the judge or jury may find that the patient must participate in out-patient treatment rather than in-patient (hospitalization) treatment. This seldom occurs because compulsory out-patient treatment is very difficult to enforce.

13810 Emergency Detention

APS February 2021

A judge may issue an emergency detention warrant to obtain a medical assessment to determine whether a client needs court-ordered hospitalization. Law enforcement carries out the warrant.

If there is not time to get a warrant, law enforcement may do as follows:

  • Take the client into custody.
  • Transport the client to a mental health facility for assessment.

A judge may grant a warrant for emergency detention if law enforcement does one of the following:

  • Witnesses the client’s behavior or circumstances.
  • Receives information about the behavior or circumstances through a report made by a credible person. The APS specialist is a credible source of information for law enforcement.

An emergency detention warrant may be issued if the client must be immediately restrained because he or she exhibits behavior that is a current threat to the life of the client or another person.

Clients detained in a mental health facility must be examined by a physician within 48 hours of detention. If the physician does not certify the need for further detention pending a probable cause hearing, the client must be released.

Law enforcement provides transportation for the client when carrying out an emergency detention warrant. In no circumstances does the APS specialist transport the client.

13811 Use of Emergency Detention for an APS Client

APS February 2021

An emergency detention warrant may be necessary in cases where both of the following apply:

  • The client refuses to see a physician.
  • The client’s actions meet all of the following criteria:
    • APS believes the actions are related to mental illness.
    • The actions show a substantial risk of serious harm to the client or others.
    • The actions show that harm is likely to happen soon unless the client is immediately restrained.

In these cases, the APS specialist does as follows:

  • Obtains the supervisor’s approval, if possible, before notifying law enforcement or mental health officials about the need for an emergency detention.
  • Contacts local law enforcement, a peace officer, or a mental health officer, and asks the officer to take or arrange for action to protect the client and others from serious harm.
  • Contacts local mental health staff to obtain and document the results of the client’s evaluation.
  • Contacts local mental health staff to obtain and document the results of the court hearing, if the client is detained or committed to a facility for evaluation.
  • Consults with the supervisor and the risk/self-neglect subject matter expert about whether APS should do either of the following:
    • Provide further services.
    • Continue to monitor the client’s status.

When Law Enforcement Requests That APS or an Individual Seek an Order for Emergency Detention

Law enforcement may request that APS or an individual apply for an emergency detention order, rather than law enforcement seeking the order directly. The APS specialist may file an application for emergency detention if no one else is available to do so. This application asks the court to issue an emergency detention warrant, which directs law enforcement to detain a specific person.

The APS specialist contacts the local court to request the application to apply for an emergency detention warrant. The specialist completes the application, which includes a detailed description of the following:

  • The applicant’s relationship to the client.
  • The client’s specific behavior, acts, attempts, or threats.
  • The specific risk of harm.

The APS specialist provides the completed application to the judge or magistrate. This court official determines whether an emergency detention warrant is necessary and, if so, how to deliver that warrant to law enforcement for them to carry it out.

The court may request that APS deliver the warrant to law enforcement. If the court does this, the APS specialist does as follows:

  • Delivers the warrant.
  • Consults with all of the following people before taking any further action:
    • Supervisor
    • Program administrator
    • Regional attorney

The APS specialist does not do the following:

  • Carry out the warrant himself or herself.
  • Transport the client.

The law allows any adult with knowledge of the facts to apply to a court to request that the court issue an emergency detention warrant. However, law enforcement usually files the application for the warrant.

If law enforcement has not asked APS to file the application, the APS specialist consults with the following people:

  • Supervisor.
  • Risk/self-neglect subject matter expert.
  • Regional attorney, if possible.

The purpose of consulting with them is to determine whether this action (APS filing the application) is available and appropriate in the county where the client lives.

Texas Health and Safety Code §573.011

Documentation for Emergency Detentions

The APS specialist documents the following:

  • Consultations with the supervisor in contact detail narratives.
  • The interviews with any collaterals in contact detail narratives.
  • The detention on the IMPACT Legal Action page.

13820 Temporary Court-Ordered Mental Health Services

APS February 2021

The APS specialist does as follows when the doctor’s statement indicates that the client meets the statutory criteria for court-ordered commitment:

  • Attaches the statement to an application for temporary commitment.
  • Files the application with the court.

A second doctor’s statement must be obtained to support the first.

The county attorney represents the applicant, and the court appoints an attorney ad litem to represent the client. The court holds a full hearing within 14 calendar days of the filing of an application for court-ordered mental health services. After the full hearing, a county court may issue an order for temporary mental health services for up to 90 calendar days. If the client requests it, a jury trial is held.

If the client needs to be detained until the court can hold a hearing on the temporary commitment, the applicant requests an order for protective custody. Detention pending the hearing is at a hospital.

The judge may order a person to receive court-ordered mental health services only if the court finds that the person is mentally ill and that any of the following apply:

  • The person likely to seriously harm himself or herself, or others, as a result of that mental illness.
  • The person is in severe and abnormal mental, emotional, or physical distress.
  • The person has a condition that will progress to the point that he or she cannot care for himself or herself.
  • The person is unable to make a rational and informed decision about whether to submit to treatment.

If the APS specialist does not attend the hearing, the APS specialist contacts the local mental health authority staff to request the following:

  • The results of the hearing.
  • The name of the hospital, if the client has been committed.

The APS specialist contacts that hospital’s social worker for assistance in planning for the client’s release. The APS specialist should always consider a mental health commitment to be a short-term placement for the client. The specialist immediately begins planning for assisting the client when he or she leaves the hospital.

Texas Health and Safety Code §574.034

13830 Voluntary Admission to a Mental Health Facility

APS February 2021

For voluntary admission, the client must file a statement with the director of the mental health facility. Hospital staff informs the client orally and in writing of the client’s rights as a voluntary patient. The client must agree to submit to the facility’s custody for diagnosis, observation, care, and treatment until the client is discharged or until 96 hours after filing a written request for release with the facility’s director. If the client does not withdraw the request for release, further detention is involuntary and requires a court order.

13900 Family Violence Protective Orders Against a Perpetrator

APS February 2021

A family violence protective order is a court order which prohibits a member of a family or household from doing the following:

  • Remaining in the household.
  • Contacting or coming near the victim.

The purpose of the order is to prevent that person from committing further acts of family violence against the victim.

The statutes governing family violence protective orders are set forth in Texas Family Code Chapters 71-87. This order is only available for family violence committed by a family member, by member of the household, or, in some circumstances, by a date.

Family violence is defined as either of the following:

  • An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault.
  • A threat by a member of a family or household that reasonably places another member of the family or household in fear of imminent physical harm, bodily injury, assault, or sexual assault.

Texas Family Code Chapter 71

To obtain a family violence protective order, all of the following must occur:

  • An application is filed with the court.
  • Citation and notice is sent to the alleged perpetrator.
  • A hearing is held.

A temporary restraining order may be requested for the time required to serve notice and have the hearing.

The county or district attorney provides legal representation for any applicant, and there is no filing fee. Many county and district attorneys have a designated staff member to work with a person requesting a protective order.

Eye witness evidence of the prior violent acts must be presented at the hearing. This means either the victim testifies or another eye witness testifies.

See 5200 Cases Involving Family Violence.

When the Alleged Victim Owns or Co-owns the Home

When a court issues a protective order, law enforcement removes the alleged perpetrator from the home, if both of the following are true:

  • The alleged victim owns or co-owns the home.
  • The alleged perpetrator is in the residence.

However, the victim is the frontline enforcer of the order. The victim must contact law enforcement immediately if the alleged perpetrator violates the order.

When the Alleged Perpetrator Owns the Home

If the alleged perpetrator owns the home, the court may issue a protective order to keep the alleged perpetrator away from the client, but the client will have to move to a different home. A protective order cannot exclude the alleged perpetrator from his or her home in favor of a victim who does not co-own the home.

13910 APS Specialist’s Role in Assisting a Client With a Protective Order

APS February 2021

If the client’s situation appears to meet statutory criteria for a protective order, the APS specialist explains to the client that a protective order may apply and encourages the client to seek one. If the client is willing to seek a protective order and sign the application, the APS specialist assists the client as needed, such as by helping the client to contact the county or district attorney. If the client is willing to seek a protective order but unwilling to sign the application for a protective order, the APS specialist may sign it.

If a client is unwilling to seek a protective order, the APS specialist takes no further action related to an application for a protective order.

Law Enforcement Assistance

On the request of an applicant for a final protective order that excludes a perpetrator from their mutual residence, the court may order a law enforcement officer to do any of the following:

  • Accompany the applicant to the residence.
  • Inform the perpetrator that the court has ordered that he or she be excluded from the residence.
  • Protect the applicant while the applicant takes possession of the residence.
  • Protect the applicant while the applicant takes possession of his or her necessary personal property, if the perpetrator refuses to vacate the residence in response to a temporary order.
  • Remove the perpetrator from the residence and arrest him or her for violating the court order, if the perpetrator refuses to vacate the residence in response to a final order.

Texas Family Code §86.004

13920 Protective Order Application Filed by DFPS

APS February 2021

When DFPS staff validates an allegation that a person age 65 or older or an adult with a disability is a victim of family violence as specified in the Texas Family Code §71.004, DFPS may apply for a protective order to protect the client.

40 TAC §705.903

Texas Family Code §82.002(d)

If a client prefers for DFPS to file an application on the client’s behalf, the APS specialist does the following:

  • Discusses with the supervisor and the investigation or exploitation subject matter expert the appropriateness of signing an application for a protective order on behalf of the victim.
  • Obtains supervisory approval before signing the application.
  • Consults with the regional attorney before signing the application.

The APS specialist must complete the following steps before proceeding with an application for a protective order:

  • Notify the client and a non-abusive adult member of the household, if available, of the intent to file a protective order.
  • Request the assistance of the client and the non-abusive adult member of the household to develop a safety plan for the protection of the client and any non-abusive members of the household.

Human Resources Code §40.075

After completing these steps, the APS specialist seeks legal representation from the county or criminal district attorney to file the protective order.

If requested by the court or the county or criminal district attorney, the APS specialist completes an affidavit related to case findings pertaining to the incident of family violence and testifies at the hearing. The victim may also be asked to complete an affidavit or testify, or both.

The supervisor (or specialist, with supervisory approval) must notify the district director or designee of the potential for legal action.

Documentation for Protective Orders

After filing for a protective order, the APS specialist documents the following in contact detail narratives:

  • Consultations with the supervisor, the investigation or exploitation subject matter expert, and the regional attorney.
  • The interviews with the client and any collaterals.

The specialist also documents the protective order in the Legal Action page in IMPACT.

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