SECTION 361.21. Eligibility for Services

(a) To determine eligibility for services, the DADS Guardianship Services Program conducts an assessment of an individual referred by DFPS under Texas Human Resources Code, §48.209. The assessment may include identifying and arranging for services that do not require guardianship. An individual must meet the requirements of subsections (b) - (f) of this section, or DADS must agree to serve as guardian under subsection (g) of this section, for the individual to be eligible for the DADS Guardianship Services Program.

(b) DADS authority under Texas Human Resources Code, §161.071 to be appointed by the court to serve as permanent guardian of the person or permanent guardian of the estate is limited to an individual referred to the DADS Guardianship Services Program by DFPS under Texas Human Resources Code, §48.209 or an individual for whom DADS otherwise agrees to serve as permanent guardian under Texas Human Resources Code, §161.101(d).

(c) For the Child Protective Services Division (CPS) of DFPS to refer an individual for guardianship:

(1) the individual must:

(A) be at least 16 years of age and be in a conservatorship of DFPS; or

(B) be at least 18 years of age, have been in CPS conservatorship on the day before turning 18 years of age, and in extended foster home placement after turning 18 years of age; and

(2) CPS must have reason to believe that the individual will be substantially unable to provide for the individual's own food, clothing, or shelter, or to care for the individual's own health needs, or to manage the individual's own financial affairs when the individual becomes an adult.

(d) The guardianship of an individual meeting the criteria in subsection (c) of this section, may not take effect before the individual's 18th birthday.

(e) An individual referred by the Adult Protective Services Division (APS) of DFPS must be age 65 years of age or older, or 18 to 65 years of age and disabled. APS must also have reason to believe the individual is an incapacitated person, as defined by Texas Estates Code, §1002.017(2) and must have been determined to be in a state of abuse, neglect, or exploitation.

(f) In order for DADS to serve as guardian, an individual must have private assets available to meet the expenses of day-to-day living, or be eligible for government benefits (for example, Medicaid, Social Security, or veteran benefits) that are sufficient to provide support. The DADS Guardianship Services Program is not liable for, and cannot provide, financial support for services provided to wards, including the cost of long-term care or burial expenses.

(g) DADS must determine that becoming guardian of an individual referred by APS will provide an effective remedy for the abuse, neglect, or exploitation validated by APS. DADS must determine that becoming a guardian of an individual referred by CPS will enable DADS to effectively serve the needs of that ward.

(h) In its sole discretion, DADS may otherwise agree to serve as permanent guardian of an individual under Texas Human Resources Code, §161.101(d). In deciding whether to serve as permanent guardian, DADS considers the following additional factors:

(1) the risk of serious and imminent harm to the individual or the individual's estate if a guardian is not appointed;

(2) the likelihood that guardianship will provide an effective remedy for the risk of serious harm to the individual and that DADS appointment will effectively serve the needs of the individual;

(3) the availability to the individual in the local community of less restrictive alternatives and other persons or agencies to serve as guardian;

(4) the history of investigations conducted by APS of the individual as an alleged victim of abuse, neglect, or exploitation and the likelihood of future investigations by APS; and

(5) the availability of private assets or government benefits to pay for the needs of the ward.

Source Note: The provisions of this §361.21 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