SECTION 361.23. Assessment

(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