| (a) An assessment begins with the referral of an individual
from either the Child Protective Services Division or the Adult Protective
Services Division of DFPS.
(b) The DADS Guardianship Services Program considers
the conditions and circumstances of the elderly or disabled individual,
as documented by DFPS and through DADS own review process, to determine
whether a less restrictive alternative to guardianship is appropriate
and available. If an appropriate, less restrictive alternative is
identified and available, the DADS Guardianship Services Program either
arranges for this alternative or provides a recommendation to DFPS
to pursue the alternative.
(c) If a less restrictive alternative is not appropriate
and available, the DADS Guardianship Services Program conducts an
assessment to determine if the individual appears to lack capacity.
If the DADS Guardianship Services Program's assessment concludes that
the individual appears to lack capacity, the DADS Guardianship Services
Program arranges for a qualified physician to examine the individual
and provide a Certificate of Medical Examination (CME). If the basis
of the alleged incapacity is intellectual disability, the DADS Guardianship
Services Program arranges for a determination of intellectual disability
(DID).
(d) If the CME states that the individual is incapacitated
and guardianship is appropriate, or the DID states that the individual
meets the criteria for a diagnosis of intellectual disability as
the basis of incapacity and guardianship is appropriate, the DADS
Guardianship Services Program attempts to identify a person or a guardianship
program who is willing, able, and suitable to serve as guardian and
requests that the person or guardianship program file an application
for guardianship. If no such person or program can be identified,
the DADS Guardianship Services Program files an application with the
court that has probate jurisdiction in the county in which the individual
resides. Only a court with probate jurisdiction may make the legal
finding that an individual is an incapacitated person.
(e) At the completion of the assessment, the DADS Guardianship
Services Program notifies DFPS, or the court if the assessment was
done in response to the court's request, of the outcome of the assessment.
(f) If DFPS makes a referral to a probate court or
the court appoints DADS as guardian through a court-initiated guardianship
proceeding under Texas Estates Code, §1102.001, or both, the
DADS Guardianship Services Program conducts an abbreviated assessment
to determine if the individual is eligible for the DADS Guardianship
Services Program. If the individual is not eligible for the DADS Guardianship
Services Program, the DADS Guardianship Services Program files appropriate
pleadings to rescind or reverse the appointment that state the reasons
that DADS may not be appointed guardian.
|
| Source Note: The provisions of this §361.23 adopted to be effective September 1, 2006, 31 TexReg 6797; amended to be effective February 9, 2015, 40 TexReg 609; transferred effective March 15, 2022, as published in the February 25, 2022 issue of the Texas Register, 47 TexReg 983 |
