7000 Guardianship Cases
APS March 2024
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:
12000 Legal Actions, Legal Documents, and Other Non-Legal Remedies
15124.1 Court Notification About an Investigation Involving 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:
- The spouse.
- The nearest kin.
- Any other person acceptable to the court, if the spouse or the nearest kin is disqualified or refuses to serve.
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.
See 7221 Relative or Other Person as Guardian.
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.
It is presumed not to be in the best interest of a ward to appoint a person as guardian if the person was convicted of certain crimes, such as physical assault or any sexual offense.
7100 Investigations Involving a Ward
APS December 2022
The court that appoints a guardian decides what rights and powers the guardian has with regard to the ward. The ward retains any rights and powers not delegated to the guardian. The guardian may be the guardian of the estate, the guardian of the person, or both.
APS investigates allegations of abuse, neglect, and financial exploitation involving wards as outlined in policy.
7110 APS Access to a Ward
APS September 2024
APS is authorized to interview a client (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 client (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 client (ward).
- Obtains approval as outlined in 12100 Initiating Legal Actions before seeking an injunction against interference or a court-authorized entry.
See:
6121.11 Denial or Revocation of Permission to Enter
6121.2 Transportation for a Client
12400 Interference with Investigation or Protective Services
7120 Allegations Involving a Ward
APS December 2022
When the allegation is abuse of a ward by a guardian, APS always investigates as outlined in 3220 Abuse Allegations.
When the allegation is neglect or financial exploitation of a ward by a guardian, the APS specialist follows the policies below.
7121 Neglect of a Ward
APS December 2022
An allegation of neglect of 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:
- 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:
8510 Allegation Disposition (Finding)
7122 Financial Exploitation Allegations Against a Guardian of the Estate
APS March 2024
Guardian of Estate
A guardian of the estate cannot financially exploit his or her ward because the court’s finding of incapacity 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 both of the following:
- Whether the alleged perpetrator is currently the guardian of the estate for the client, 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.
Guardian of Person
When the court has not appointed a guardian of estate, the court may appoint a guardian of person to access, manage, and spend the ward’s funds in an amount not to exceed $20,000 per year, for the ward’s benefit. The guardian provides an accounting of the expenditures in an annual report to the court.
When an intake alleges financial exploitation by a guardian of the person only, the APS specialist contacts the court clerk to determine the following:
- Whether the court has authorized the guardian to access and spend the ward’s funds.
- Whether the alleged financial exploitation occurred during a time frame for which the court has already approved an annual accounting.
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 as follows:
- Directs the reporter to make a complaint to the court.
- Closes the case using the Closure Reason code Does Not Meet Definition of APS.
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 15124.1 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 as follows:
- Gives the information gathered to the court, along with the APS Court Report for Guardianship located in IMPACT, as outlined in 15124.1 Court Notification About an Investigation Involving Guardianship.
- Closes the case using the Closure Reason code Does Not Meet Definition of APS.
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 as follows:
- 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 dispositions for all other allegations.
- Closes the case 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 15124.1 Court Notification About an Investigation Involving Guardianship.
See:
8523 Financial Exploitation Allegations
7130 Perpetrators and Wards of HHSC OGS
APS December 2022
APS investigates allegations of abuse, neglect, and financial exploitation of a ward who is under the guardianship of the Health and Human Services Commission (HHSC) Office of Guardianship Services (OGS).
7131 Alleged Perpetrator Is Not HHSC OGS Staff Member
APS December 2022
When an intake alleges abuse, neglect, or financial exploitation of an HHSC OGS ward by a person other than an HHSC guardianship staff member, the APS specialist notifies HHSC OGS staff of the following:
- The open investigation involving the ward.
- The investigation finding.
- Any information that will help HHSC OGS ensure the ward’s safety.
7132 Alleged Perpetrator Is HHSC OGS Staff Member
APS December 2022
As soon as APS determines that an HHSC OGS staff member is the alleged perpetrator of abuse, neglect, or financial exploitation of an HHSC OGS ward, the following actions are required:
- The APS supervisor does the following:
- Assigns the case to an APS specialist in a different region from the HHSC OGS guardianship staff member.
- Avoids any involvement of APS staff from the same region as the guardianship staff member.
- The APS specialist does the following:
- Designates the case as sensitive in IMPACT.
- Completes Form 2272 Notification of High Profile APS Case and emails it to the APS supervisor.
- Notifies HHSC OGS State Office of the following:
- The open investigation involving the ward.
- The investigation finding.
- Any information that will help HHSC OGS ensure the ward’s safety.
If APS validates an allegation of abuse, neglect, or financial exploitation against an HHSC guardianship staff member, regardless of whether the staff member was acting as an agent for HHSC OGS when the maltreatment occurred, APS offers the HHSC guardianship staff member due process, as outlined in 14300 Due Process for Non-EMR (Employee Misconduct Registry) Cases and its subitems.
See:
2430 Intakes with Special Considerations
14300 Due Process for Non-EMR (Employee Misconduct Registry) Cases
14310 Emergency Release of Findings in Non-EMR Cases
15120 Disclosure of Case Information
7200 Guardianship Process
APS January 2022
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)
7210 Background Checks and Guardianship
APS January 2022
The APS specialist conducts IMPACT background checks and requests criminal history checks to collect information to keep the APS specialist and the client safe. This information may also help inform APS of the appropriateness of a person interested in serving as guardian.
7211 Criminal History Checks
APS September 2024
According to Texas Government Code §411.114, DFPS has authority to conduct criminal history checks on a person who meets one or both 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 Office of Guardianship Services (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.
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 as follows:
- 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 and, if appropriate, with the regional attorney, releases a copy of the criminal history information only if the court orders APS to do so.
See:
6412 Criminal History Records Checks
15125.3 Disclosure of Criminal History Information
7212 IMPACT Background Checks
APS January 2022
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 of the client 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:
15124.1 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:
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 15124.1 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:
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:
|
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)
15111 Individuals and Entities Entitled to the Case Record
7220 Initiation of Guardianships
APS January 2022
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 March 2024
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 was not or will not be successful in resolving abuse, neglect, or financial exploitation.
The law requires that relatives or friends of the client be considered as potential guardians first. The priority list is in Order of Preference for Appointment of Guardian in 7000 Guardianship Cases.
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 as follows:
- Attempts to identify a person willing and able to serve as a guardian.
- Reviews Order of Preference for Appointment of Guardian in 7000 Guardianship Cases, 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 as follows:
- 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 from serving as guardian (see Order of Preference for Appointment of Guardian in 7000 Guardianship Cases).
- 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.
Documentation Requirements
The SME 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 9800 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, 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 §110.
See 9800 Subject Matter Expert (SME) Consultations.
7222 Attendance at Guardianship Hearings
APS January 2022
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.
- 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 15124 Case Information in Connection With a Court Action.
7300 Referrals to HHSC Office of Guardianship Services (OGS)
APS March 2024
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. See:
Galveston County Guardianship Program
APS makes the following types of guardianship referrals to HHSC OGS:
- Standard (see 7330 Standard Referrals to HHSC OGS and its subitems).
- Emergency (see 7340 Emergency Referrals to HHSC OGS and its subitems).
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. The HHSC OGS specialist or HHSC OGS supervisor may request that APS obtain a certified medical examination as outlined in 7362 Certificate of Medical Examination (CME). APS does not obtain a CME unless requested by HHSC OGS staff.
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 that 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 had one of the following outcomes:
- The client or family refused them.
- They are not available or adequate.
- They failed to protect the client.
- Diligent attempts 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 identified a suitable family member or friend willing and able to seek guardianship in a timely manner.
- Guardianship will not meet the client’s needs or protect the client from ongoing abuse, neglect, or financial exploitation. (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, including federal benefits, to pay for necessary care.
- The client’s immigration status makes him or her ineligible for benefits to pay for care.
- The client is otherwise inappropriate for guardianship.
7310 Criminal History Records Checks and Referrals to HHSC OGS
APS March 2024
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 and the discretion to conduct criminal history records checks on people living in the same home as the client.
APS may release criminal history information to any entity outside DFPS, including to HHSC, as outlined in 6412 Criminal History Records Checks.
7320 Minimum Information for HHSC OGS Referrals
APS December 2022
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 APS includes on a guardianship referral before submitting it to HHSC OGS.
Every item on the referral form must have a response; items cannot be left blank. If the information is unknown or unavailable, the APS specialist enters “unable to locate”, “pending”, or “NA” (short for “not applicable”) for the item.
In Required Minimum Information, below, items that are followed by an asterisk (*) are likely to be unavailable at the time of a referral related to an emergency order for protective services (EOPS).
If any of the required minimum information is unknown or unavailable at the time of a standard or emergency referral, see Missing Information, below in this section.
Required Minimum Information
Client Information and Case Findings
The following information is required:
- Client’s full name.
- Permanent address.
- Place of residence.
- Current location, if different from residence.
- 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 eligible for 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). However, see 15125.2 Disclosure of HIV or AIDS Information.
- 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.
- Information about the alleged and designated perpetrator, if applicable.
Family and Collaterals
The following information is required:
- Names and contact information for family members and friends (spouse, children, known relatives, or other interested people), 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 to serve or incapable of serving as guardian, and the reason for this belief.
- Prior history of family members or friends caring for the client, interfering with the client’s care, or being a designated perpetrator of abuse, neglect, or financial exploitation (see 7212 IMPACT Background Checks).
Prior Case History and Current Problems
The following information is required:
- Emergency order for protective services (EOPS) information, including date of EOPS and a summary of the situation, if applicable.
- A 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.
Legal and Financial Information
APS gives HHSC the legal and financial information that APS knows at the time of referral and promptly provides additional legal and financial information uncovered during the investigation.
Legal and financial information includes, but is not limited to, the following:
- Power of attorney (POA) information, including a copy of the document.
- Asset information, including financial accounts. For each account, this typically includes the following:
- Name or names on the account.
- Name of the financial institution and its address and phone number.
- Account number.
- Type of account.
- Balance.
- Information about income and other benefits (including claim numbers and monthly amounts) from government programs, such as the following:
- Social Security – Social Security Disability Insurance (SSDI) Retirement, Survivors, and Disability Insurance (RSDI), and Supplemental Security Income (SSI).
- Veterans Affairs (VA) benefits.
- Medicaid.
- Information about any other source of income.
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.
Referral Is Missing Minor Information
If the referral is missing minor information, the APS specialist emails the missing information to the HHSC OGS supervisor or designee within five calendar days after submitting the referral.
If the information still cannot be located or does not exist, APS notifies HHSC as outlined in 7332 Case Management After Standard Referral.
Referral Is Significantly Incomplete
If HHSC OGS determines that a referral is significantly incomplete, and an assessment cannot be initiated, the HHSC OGS supervisor requests that the APS staff member who submitted the referral provide the missing information within five calendar days after the electronic referral submission.
If the information cannot be provided within the time frame, the APS supervisor or SME contacts the HHSC OGS supervisor to discuss the situation and develop a solution. The HHSC OGS regional operations manager (ROM) and the APS district director are notified of a proposed solution and coordinate a final decision, if necessary.
7330 Standard Referrals to HHSC OGS
APS March 2024
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, this does not affect the 70-day time frame. This includes when the HHSC OGS specialist or HHSC OGS supervisor requests a certificate of medical examination (CME) of the client as outlined in 7362 Certificate of Medical Examination (CME).
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 7365 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
7331 Completion of a Standard Referral
APS December 2022
If there are indicators that the client needs a referral to HHSC OGS, the APS specialist, supervisor, and 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 (see 7320 Minimum Information for HHSC OGS Referrals).
- Any other relevant 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.
- Finalizes and submits the form by doing the following:
- Saving the APS Guardianship Referral Form as an HTML document.
- Approving the form in IMPACT. This action also sends the form to the HHSC Guardianship On Line Database (GOLD).
- Emailing the HHSC OGS supervisor the same day the referral is approved and attaching 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 December 2022
After a standard APS Guardianship Referral Form is submitted to HHSC OGS, the assigned HHSC 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 as follows:
- Emails the HHSC OGS supervisor or designee copies of any required minimum information that was unknown when the referral form was submitted, as well as any other documentation that supports the referral, within two business days after gathering the information (see 7320 Minimum Information for HHSC OGS Referrals).
- 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.
See:
15123 Case Information to Prospective Guardians
15125.2 Disclosure of HIV or AIDS Information
15125.3 Disclosure of Criminal History Information
Ongoing Responsibilities of the APS Specialist
In addition to making sure APS sends all required minimum information to HHSC OGS within 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.
- Emails copies of other documentation that supports the referral to HHSC OGS within two business days after obtaining that information during the investigation (see 7320 Minimum Information for HHSC OGS Referrals).
- Completes a service authorization in IMPACT to pay for a written certificate of medical examination (CME) only if the HHSC OGS guardianship specialist or HHSC OGS 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 case by choosing the Referred to Other Agency closure code in IMPACT.
See:
7222 Attendance at Guardianship Hearings
12150 Legal Forms Completed by the APS Specialist
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 Final Notice of Assessment.
- Results of the HHSC OGS Final Notice of Assessment.
- Date and results of the joint staffing (meeting).
- Date and results of the management review.
- Date and results of the Review of Decision.
- Final outcome of the review process.
APS saves the following documents as documentary evidence:
- Guardianship Assessment Tool (GAT).
- HHSC OGS Final Notice of Assessment.
- Joint Staffing Tool.
The APS specialist or designee saves these documents in either of the following ways:
- By uploading them to OneCase.
- By listing them on the External Documentation page in IMPACT and storing them in the paper case file.
7340 Emergency Referrals to HHSC OGS
APS January 2022
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
12500 Original Petition for Emergency Order for Protective Services (EOPS)
7341 Emergency Referral With Emergency Order for Protective Services (EOPS)
APS January 2022
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 70 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
12560 Termination or Expiration of a Court Order for Emergency Protective Services
7341.1 Completion of an Emergency Referral After an EOPS
APS December 2022
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 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 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 APS specialist knows at the time of the referral. If certain information is not yet known, the specialist follows the procedures under the Missing Information subheading in 7320 Minimum Information for HHSC OGS Referrals.
- Any other relevant 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.
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.
- Finalizes and submits the form by doing the following:
- Saving the APS Guardianship Referral Form as an HTML document.
- Approving the form in IMPACT. This action also sends the form to the HHSC Guardianship On Line Database (GOLD).
- Emailing the HHSC OGS supervisor the same day the referral is approved and attaching 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.
7342 Emergency Referral to Protect Client Assets
APS December 2022
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 OGS. 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 OGS, 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.
- Describes, in the referral, the legal actions taken and their outcomes. This should include the following:
- History of actions affecting the client’s assets.
- Assets that remain and need to be protected.
- Actions that APS, a financial institution, or someone else has taken to prevent access to assets or protect remaining assets.
- Whether and how the alleged or designated perpetrators continue to have access to the assets.
- Status of the Valid finding of financial exploitation (preliminary or final).
- Other relevant information.
- Asks the APS supervisor or designee to arrange an initial case review meeting with the HHSC OGS supervisor within two calendar days (or the following business day) after the day the referral was submitted.
- Continues investigating and gathering evidence.
- Notifies the APS supervisor when evidence gathering is complete, and states 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 allegations 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.
A certificate of medical examination (CME) is not required for temporary guardianship. However, HHSC OGS seeks one and provides it to the court, if available in time.
If the CME finds the client has capacity, HHSC OGS does one of the following:
- Notifies the APS supervisor that HHSC OGS will withdraw the application for temporary guardianship, if the guardianship hearing has not yet occurred.
- Seeks dismissal from the guardianship or resigns and notifies APS, if the court has already granted temporary guardianship.
If APS is unable to gather sufficient evidence to support the finding of Valid for financial exploitation, and APS also has insufficient evidence to validate any other allegation, HHSC OGS does one of the following:
- Withdraws the application for temporary guardianship, if the hearing has not yet occurred.
- Seeks dismissal from the guardianship or resigns, 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 or resigns. If the court does not grant temporary guardianship, HHSC OGS notifies APS immediately, so APS can continue to seek protection for the client through a voluntary service plan.
If the court grants temporary guardianship, HHSC OGS takes steps to protect the client’s assets. 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 January 2022
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 case (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 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
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 Lack of Agreement Following a Referral to HHSC OGS
APS December 2022
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 client has capacity.
- The attorney responsible for filing the guardianship application believes there is not sufficient legal basis to proceed. In this situation, HHSC conducts an internal legal review of the case.
If HHSC OGS determines that guardianship is not appropriate for the client, all 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 consults with the APS regional attorney to determine whether a joint staffing meeting is appropriate.
- If a joint staffing is appropriate, the APS supervisor coordinates with the HHSC OGS supervisor to schedule a joint staffing meeting to review alternatives.
- The APS specialist documents the outcome of the joint staffing on the Guardianship Detail tab, as outlined in Documentation After Standard Referral in 7332 Case Management After Standard Referral.
Joint Staffing Process
The APS supervisor or SME requests a joint staffing by emailing the HHSC OGS supervisor within ten calendar days after receiving the Final Notification of Assessment from HHSC indicating that HHSC OGS will not pursue guardianship. The joint staffing meeting occurs within five calendar days after the request.
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 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 will re-evaluate the case, and HHSC OGS staff will do a reassessment or obtain other information.
- HHSC OGS will identify and consider 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.
Review of Decision (ROD) Process
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 district director or designee.
The APS district director or designee does as follows:
- Emails the HHSC OGS regional operations manager (ROM) or designee, requesting a review of decision (ROD) within seven calendar days after the joint staffing.
- Conducts an independent review of the information in the referral and the assessment before discussing it 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 a ROD.
The ROM notifies the APS district director in writing, within five calendar days after the conference call, informing APS whether HHSC OGS will seek guardianship.
If the ROM and the APS district director do not agree on the best approach for the client, the APS district director consults with the APS director of field operations (DOF). The DOF considers whether to request a meeting with the alternate ROM for a secondary ROD.
Within three calendar days after receiving a request for a secondary ROD, the APS DOF and alternate ROM hold a meeting.
If the two agencies still cannot agree, consultation with the HHSC Guardianship Services Program director or designee and the APS associate commissioner or designee is required.
If the ROD results in HHSC OGS pursuing guardianship, HHSC OGS expedites the guardianship application as much as possible.
7360 General Issues About HHSC OGS Referrals
APS December 2022
Cooperation between APS and HHSC OGS is necessary to protect and serve mutual clients whom APS determines appropriate for consideration for HHSC OGS. APS staff members also participate in ongoing joint staffing meetings and provide help and consultation as needed.
The memorandum of understanding (MOU) between DFPS and HHSC OGS outlines the specific duties and responsibilities of both agencies, with the goal of ensuring positive outcomes for mutual clients.
Dispute Resolution
If a disagreement arises about the interpretation or intent of policy or procedure outlined in the MOU, APS staff members consult with the APS director of policy and performance management (DPPM) or designee. If needed, the DPPM and the HHSC program and policy development manager (PPDM) work together to resolve any unresolved disagreements and to clarify policy and procedure.
See:
7330 Standard Referrals to HHSC OGS
7340 Emergency Referrals to HHSC OGS
7361 Medicaid and the Guardianship Process
APS December 2022
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 OGS 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 (readily available money) 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, after 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 keeps the APS case open, 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 for the ward’s care.
See 10900 Purchased Client Services (PCS).
7362 Certificate of Medical Examination (CME)
APS March 2024
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 who is providing the CME all information that APS gave HHSC OGS, 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. APS only requests a CME when the HHSC OGS guardianship specialist or HHSC OGS guardianship supervisor requests it.
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 each CME within five calendar days after receiving it.
7363 Determination of Intellectual Disability
APS December 2022
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.
7364 Communication of Status
APS December 2022
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, a guardian is appointed, or the APS case is closed.
7365 Request for Extension on Filing Guardianship Application
APS December 2022
If HHSC OGS determines that the applicant will not be able to file the application for guardianship by the 70th calendar day after the date of the 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 after 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.
7366 Less Restrictive Alternative and Another Referral Within Six Months
APS December 2022
A new referral to and assessment by HHSC OGS is required if both of the following occur:
- APS or HHSC puts in place a less restrictive alternative after a guardianship referral.
- APS receives a new intake and validates an allegation of 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.