3110  Annual Review of Guardianship of Person

Policy: The GS shall perform an annual review of all active guardianships of the person at the time of the annual report.

Required Procedures – The GS:

• reviews each case to determine whether:
  • a possible successor guardian who is willing and able to serve has been identified;
  • a less restrictive alternative to guardianship is appropriate and available;
  • the guardianship should be continued, modified, or terminated;
  • an interested person has expressed an interest in or plans to file for restoration of the ward; or
  • the ward has expressed a desire to have capacity restored;
• provides assistance to the ward in establishing a plan to seek restoration of capacity when directed to do so by the guardianship supervisor in accordance with the policy and procedures set forth in Section 3111, Restoration of Capacity;
• contacts individuals identified as a possible successor guardian, interviews them and seeks to determine if they are appropriate, willing and able to become successor guardian;
• consults with the guardianship supervisor and as needed with the regional guardianship attorney;
• notifies the court if an individual expresses an interest in becoming successor guardian;
• seeks to identify less restrictive alternatives available which resolve the ward's problems making guardianship no longer necessary or to identify a valid reason to terminate the guardianship;
• notifies the court if there is a less restrictive alternative available and appropriate which may make guardianship no longer necessary, if it is appropriate to seek restoration of the ward, if there is a valid reason to terminate the guardianship, or if the ward expresses a desire to seek restoration;
• cooperates fully with courts in their review of DADS guardianships; and
• documents consultations and decisions in GOLD.

Discussion and Relevant Information. DADS is statutorily required to perform an annual review of all active guardianships to determine whether a more suitable person is willing and able to serve as successor guardian of the ward. Each open case is reviewed at the time of the annual report to the court to determine whether there is a potential appropriate and available successor guardian, to see if there are reasons to terminate the guardianship or if a less restrictive alternative may now be appropriate. During the course of the review, the GS documents information about parties who are interested in the welfare and well-being of the ward so they can be located at a future date if needed. The GS also documents any contacts with an interested party, and meets with the ward to assess whether or not the ward's circumstances or conditions have changed so as to warrant the use of a less restrictive alternative to guardianship. The GS answers a series of questions designed to assist in determining whether or not a comprehensive reassessment of the need for guardianship is indicated. This review is completed quarterly in the first 12 months of a guardianship, and as part of the annual service planning process at the time of the Annual Report.

References:
Section 2420, Less Restrictive Alternatives
Section 3111, Restoration of Capacity
HRC § 161.108
Probate Code § 695A
40 TAC § 10.205

3111 Restoration of Capacity

Policy: The GS shall assist existing wards with the process of re-establishing their civil liberties to the extent possible in accordance with the court order and statute.

Required Procedures – The GS:

• answers a series of questions contained in the Reassessment Checklist designed to assist in determining whether there is a need for a comprehensive reassessment of the need for continued guardianship and ensures the need for restoration is addressed quarterly in the first 12 months of a guardianship in a monthly status contact (MSC) or the service plan (SP) as appropriate;
• reviews each guardianship quarterly in the first 12 months of a guardianship and annually at the time of the Annual Report and Service Planning process to determine if:
  • there is an indication the ward's capacity should be restored;
  • the ward has voiced a desire to seek restoration of capacity;
  • an interested person has expressed an interest in filing for restoration of the ward;
  • there is a less restrictive alternative available now which might resolve the need for a guardianship; or
  • another valid reason exists to terminate the guardianship;
• consults with the guardianship supervisor and as needed with the regional guardianship attorney;
• obtains a Certified Medical Examination (CME) as needed to re-evaluate the mental capacity of the ward and the need for continued guardianship in appropriate cases;
• notifies the court if it is appropriate to seek restoration of the ward or if there is a valid reason to terminate the guardianship or if the ward has expressed a desire to seek restoration;
• cooperates fully with courts in their review of DADS guardianships; and
• documents consultations and decisions in GOLD.

Required Procedures – The guardianship supervisor:

• reviews information submitted by the GS at least quarterly for the first 12 months of a guardianship and at the time of the Annual Report and Service Planning;
• ensures the GS asks the questions designed to determine whether or not guardianship is still needed;
• staffs the case with the regional guardianship attorney or directs the GS to do so as appropriate;
• staffs the case with the ROM if restoration is indicated; and
• directs the GS to complete any additional tasks or to proceed with seeking restoration.

Discussion and Relevant Information. A guardianship removes a ward's civil liberties. DADS is committed to seeking restoration of a ward's rights when appropriate. As part of the required annual review and at least quarterly in the first 12 months of a guardianship, the GS answers a series of questions designed to assist in determining whether or not a comprehensive reassessment of the need for guardianship is indicated. DADS reviews all aspects of the case seeking to determine if there is a least restrictive alternative available, there is a potential and appropriate successor guardian, or if it is in the ward's best interest for a guardianship to remain in place.

References:
Section 2420, Less Restrictive Alternatives
HRC § 161.108
Probate Code § 695A
40 TAC § 10.205
Reassessment Checklist, Form 5023

3120  Accessibility of Staff

Policy: The assigned GS shall be available when needed by the ward and when emergencies concerning the ward arise, and shall ensure the ward and other interested parties (e.g., such as nursing facility or other facility staff, etc.) know who to contact in the event the GS is unavailable or cannot be contacted.

Required Procedures – The GS:

• responds to a crisis situation within 24 hours;
• makes arrangements to ensure appropriate intervention in emergency or other situations when his or her assistance is needed;
• arranges for another person to intervene, including but not limited to another GS, a service provider, or a volunteer, when appropriate and after consultation with the guardianship supervisor;
• provides an office telephone number to the ward and to the facility where he or she can be reached in case of a non-emergency need and provides alternate contact numbers for reaching DADS guardianship staff around the clock in case of an emergency; and
• reviews the case file at the facility or the ward's location(s) to ensure contact information is current and readily available to the staff or the ward and is current and up-to-date, and documents in the GOLD case record the above phone numbers were provided and who provided them.

Discussion and Relevant Information. It is imperative the ward and their caretakers are provided information allowing and facilitating communication with either the assigned GS or designated back-up GS, and information which will put the ward or their caretakers in contact with program staff. This information must be reviewed and kept up-to-date frequently but no less than quarterly or when contact information changes. The designated back-up GS is responsible for responding within 24 hours to a crisis situation when the assigned GS is unavailable.

References: N/A

3130  Service Plans

Policy: The GS shall complete a service plan for the ward within 90 calendar days of taking and filing the oath of guardianship and shall revise the service plan annually within 60 calendar days of the qualification date.

Required Procedures – The GS:

• enters data into the various fields of the GOLD case record used to generate a Guardianship Service Plan which includes such information as:
  • a brief description of the ward's status;
  • the identified needs of the ward and strategies for meeting those needs;
  • goals for the ward and plans and strategies for meeting those goals; and
  • comments and other relevant information;
• prepares a GOLD Service Plan report, reviews it for accuracy and completeness and makes any needed changes in GOLD to ensure the report is accurate and complete:
  • within 90 days of the initial qualification date of guardianship and at least quarterly within the first 12 months of the guardianship;
  • annually within 60 days of the anniversary date of qualification; and
  • more frequently if indicated by changes to the ward's status, condition or as directed by the supervisor;
• answers a series of questions (Reassessment Checklist) related to a comprehensive reassessment when the service plan is prepared or updated, or when the ward voices a desire for restoration and documents the answers in the Service Plan;
• addresses and makes monthly entries in MSC narratives which address his or her efforts to achieve the goals of the service plan;
• reviews the service plan at least quarterly to ensure service plan action items are being performed, modifies the service plan at any point where an action is identified which is for the benefit of the ward, and consults with the guardianship supervisor in seeking to determine if there are any programs or services which could benefit the ward;
• documents the date the service plan was reviewed in GOLD; and
• files the guardianship service plan report in the paper case file under a tab entitled "Service Plans."

Required Procedures – The supervisor:

• reviews the service plans at least quarterly for the first 12 months of the guardianship and thereafter at the time of the Annual Report or more frequently as needed;
• directs the GS to perform activities related to restoration if indicated or to complete other activities as appropriate; and
• ensures the GS documents all service planning and reassessment activities in the GOLD case record.

Discussion and Relevant Information. The purpose of the guardianship service plan is to establish a structured and systematic approach for delivery of services maximizing quality of care, quality of life, and overall functioning of the ward in principal areas of his or her daily living circumstances. Short-term goals (focusing on the first 12 months of the guardianship) and long-term goals (focusing on succeeding years of the guardianship) are determined to meet the needs of the ward considering the establishment of the guardianship. The service plan ensures appropriate habilitation and rehabilitation services, including therapy, counseling, education, and training to the extent permitted by the ward's estate. The Service Plan is both a plan and a report developed by the GS. In GOLD, the Service Plan is compiled from information located throughout the ward's GOLD record. It is essential for a brief description of the current status of the ward, the needs of the ward, and a strategy for meeting the needs in each of the areas identified below to be entered into GOLD and changed as the circumstances warrant:

• living arrangements/basic care;
• medical/dental/eye/mental health/intellectual disability;
• educational/vocational/training;
• family/social/recreational;
• financial/legal; and
• recommendations regarding restoration.

When developing a service plan, the GS considers resources including the ward's finances, cultural background, experiences and family relationships of the ward and includes appropriate placement for the ward. The service plan is based on a multi-disciplinary functional assessment incorporating the principles of self-determination and person-directed planning, to the greatest extent possible.

It is important to ensure a review of the need for continued guardianship is as thorough as the individual's circumstances and conditions warrant. Individuals who are in the early stages of a guardianship, those with conditions which may improve may experience significant changes in their conditions and circumstances. Less restrictive alternatives or successor guardians may also become known to the GS and this may impact both the Service Plan and the Annual Report. The GS asks and documents the questions defined on the Reassessment Checklist when the service plan is prepared or updated or the ward voices a desire for restoration. These questions are designed to assist in determining whether or not a more comprehensive reassessment is indicated. The guardianship supervisor reviews the service plans at regular and frequent intervals especially in the early stages of a guardianship to ensure the ward's needs are met, the conditions and circumstances are examined, and if there are indications of a reassessment of the need for continued guardianship.

Minor changes written on the existing paper service plan report must be signed and dated. Significant changes (e.g., changes in placement, DNR, etc.) require updating the formal plan by entering data into the GOLD case record.

References:
Reassessment Checklist, Form 5023

3140  Monthly Status Contacts

Policy: The GS, or an alternate GS approved by the guardianship supervisor, shall make at a minimum one face-to-face monthly status contact (MSC) for any ward or proposed ward beginning with the filing date of the application for guardianship unless the MSC is suspended or modified as defined in Section 3142, Exceptions to Monthly Status Contacts.

Required Procedures – The GS:

• visits the ward at his/her residence, his/her place of work, a workshop, or other regular place where the ward can be located and alternates visits between regular locations of the ward;
• ensures each type of environment (e.g., home, workshop, school, etc.) is visited quarterly, at a minimum;
• addresses the ward's current status, follows up on previously or newly identified problems, and documents actions taken to resolve problems, and other observations;
• completes the reassessment checklist at least quarterly during the first 12 months of a guardianship and at least annually thereafter as part of a regularly scheduled MSC and notifies the supervisor if restoration appears to be indicated;
• makes additional face-to-face contacts for other reasons (for example, conducting an assessment, attending a court hearing, handling situations and issues, etc.) as needed;
• attends regularly scheduled care-plan meetings at least quarterly in the first 12 months of a guardianship and routinely thereafter;
• consults with facility and/or other program caseworkers if the facility does not schedule a care plan meeting quarterly, does not notify the GS when one is being held, or if the GS is unable to attend; and
• documents all contacts with the ward in GOLD.

Discussion and Relevant Information. Contacts with DADS wards comprise a core method used to assess, monitor, and address the individual needs of a ward or proposed ward. When conducting and documenting the MSC, the GS addresses the six areas outlined in Form 5029, Monthly Status Contact (MSC) Guide. Those six areas are: environment, financial, physical, mental, social, and legal. The reassessment checklist is used at least quarterly in the first 12 months of a guardianship at the time of a regularly scheduled MSC to identify changes in the condition or circumstances of a ward which indicate restoration may be appropriate.

The MSC is a synopsis of the face-to-face visit with the ward and represents the current status of the ward with respect to supervision, health and safety, and related matters. The GS is expected to meet with facility and/or other program caseworkers to discuss the conditions and circumstances of the ward routinely and at least quarterly in the first 12 months of a guardianship. This meeting can occur at the same time as a regularly scheduled MSC visit to the ward or in conjunction with a scheduled care-plan meeting. Information pertinent to the six areas is reviewed during the MSC with the ward and is included in the case narrative. Information which may relate to the case but is not specific to the monthly visit is not documented in the MSC narrative. The information provided below is meant to be a guide and should be modified as needs and events require.

Legal areas: If there are legal events happening to the ward which need to be discussed with the ward (e.g., upcoming hearing, ward's request to talk to judge, etc.), those may be addressed at the time of the MSC. If there are no legal actions to be addressed with the ward, the MSC would say something like this, "there were no legal actions or events to discuss with the ward at this MSC." Ongoing legal actions (which do not need or should not appropriately be discussed with the ward) are addressed separately under the legal case note type.

Financial areas: If the ward's trust fund, monthly allowance or request for purchases is discussed with the ward, then those activities are documented as part of the MSC. If there are no financial areas to discuss with the ward, the MSC would indicate something to the effect, "there were no financial areas for discussion with the ward." Ongoing financial activities are addressed separately under the appropriate GOLD area (case note, transactions, financial area).

When entering the narrative, there is not a requirement for Form 5029 in its actual form be specifically entered into GOLD. It is simply a guide for use if desired. If the GS uses the 'Cut' and 'Paste' functions from the previous MSC for continuity of narrative, he or she must ensure there is minimal duplication of content from one MSC to the next. The guardianship supervisor may assign the AA to enter MSC information on behalf of the GS under extenuating circumstances. If the AA enters the information, the narrative must clearly indicate who made the actual contact with the ward. It is the responsibility of the GS to ensure the text entered is correct, is entered within the time frame and is entered according to policy.

References:
Section 3141, Visitors to the Wards
Section 3142, Exceptions to Monthly Status Contacts
Section 3420, Successor Guardian
Reassessment Checklist, Form 5023

3141  Visitors to the Wards

Policy: The GS shall encourage and facilitate arrangements for individuals to visit the ward during the month to help ensure his or her safety and well-being when such visits are in the best interest of the ward.

Required Procedures – The GS:

• obtains a criminal history background check on visitors who are to have unsupervised visits with the ward in a facility or the ward's home if they have reason to believe a criminal history check is prudent;
• uses their professional judgment to determine if a visitor can take the ward from a facility or home location; and
• ensures visitors who are transporting wards have driver's license and automobile insurance.

Discussion and Relevant Information: Visitors to the ward may include family members, friends, church members, volunteers, or case aides. A criminal history background check is not required on all such visitors. However, if the GS is concerned about a visitor and has reason to believe a criminal history check is warranted, a criminal history check can be done at any time. A supervised visit is defined as one which occurs in the same room or line-of-sight of the GS or facility staff. DADS is not required to do a criminal background check on a service provider whose background is already checked as part of a license.

References:
Section 1700, Criminal History Checks
Section 1720, Requesting a Criminal History Check

3142  Exceptions to Monthly Status Contacts (MSC)

Policy: The GS shall perform the MSCs except as authorized by the exceptions outlined in Table 3000-1, Exceptions to Monthly Status Contacts.

Required Procedures:

• the GS uses Table 3000-1, Exceptions to Monthly Status Contacts, as the guide to performing alternative contacts to the monthly status contact with wards.

Table 3000-1, Exceptions to Monthly Status Contacts

Discussion and Relevant Information. Exceptional circumstances may result in changes to the required monthly status contacts with a ward. Any exceptional circumstance not identified in the chart above requires the approval of the ROM or another member of the guardianship program management team.

References:
Section 3140, Monthly Status Contacts (MSC)

3150  Relocation of Ward to Another Unit

Policy: The guardianship supervisor shall transfer a ward's case when the ward relocates to another unit.

• The assigned GS shall coordinate the transfer activities when a ward is relocated from one location or placement to another in accordance with the procedures set forth in the Table 3000-2, Inter–Unit Transfer of Ward.

Required Procedures – The guardianship supervisor:

• ensures appropriate entities are notified of the need to remove the names of the GS, designated back-up GS, and/or supervisor, as signatories, from all applicable accounts by the time the case is transferred to another unit. Examples of applicable accounts include bank accounts, safe deposit boxes, stocks and bonds, life insurance policies, trust accounts, etc.;
• conducts a record review to ensure all documentation is current and all legal actions have been completed;
• conducts a financial review for completeness and accuracy of financial records; and
• ensures he or she knows the location of all personal and financial records of the ward.

Required Procedures – The guardianship supervisor, the GS, or the GA:

• when relocating a ward, the guardianship supervisor, the GS, or the GA follow procedures in Table 3000-2, Inter-Unit Transfer of Ward.

Table 3000-2, Inter-Unit Transfer of Ward

Discussion and Relevant Information. Wards can be transferred from unit to unit for many reasons such as to be closer to family, to access services available in another unit, etc. When those actions occur, the guardianship supervisor takes action to transfer the case. The GS from the originating jurisdiction (transferring unit) handling legal and financial matters becomes the back-up GS until the court jurisdiction is changed. Appropriate documentation in the GOLD case file is completed by each GS and each GA. A transfer is the joint responsibility of both affected units' employees, as is the documentation.

References: N/A

3151  Transfer of Cases from GS to GS

Policy: The guardianship supervisor(s) shall be responsible for case reassignments between GSs when cases are transferred either in-unit or out-of-unit, or are transferred when a GS terminates their employment or the ward is reassigned to another GS.

Required Procedures – The guardianship supervisor:

• ensures appropriate entities are notified of the need to remove or replace the name of the GS, designated back-up GS, and/or guardianship supervisor as signatories from all applicable accounts by the time the case is transferred, by the date of the employee's resignation, or within 10 days of reassignment in a unit;
• In-Unit – reassigns the case to another GS within unit guidelines;
• Out-of-Unit – The guardianship supervisor in the transferring unit contacts the guardianship supervisor in the receiving unit, who assigns a GS to the case; and
• Sends status notifications to DFPS as outlined in Section 2120, Notifications for APS Referrals, and Section 2641, Status Notifications for a CPS Referral, accordingly, during periods of mutual case involvement.

Discussion and Relevant Information. Circumstances pertinent to a referral or active guardianship case may result in a proposed ward or ward – whether in an AOC or an APS case – changing placement location, assigned caseworkers, and even court jurisdiction. Changes in unit personnel may also occasionally occur. Such factors may require the reassignment of cases between guardianship staff. "Out-of-Unit" as above-referenced is similar in meaning to "Inter-Unit Activity", as found in Section 1110.2, Definitions - General Information.

References:
Section 3150, Relocation of Ward to Another Unit
Section 1110.2, Definitions - General Information
Section 2120, Notifications for APS Referrals
Section 2641, Status Notifications for a CPS Referral

3160  Temporary Guardianship

Policy: The GS shall file for temporary guardianship when circumstances indicate a need and it is determined to be in the best interests of the proposed ward.

• The GS shall complete an assessment for guardianship during a temporary guardianship as outlined in Section 2510, Performing an Assessment of an APS Referral.

Required Procedures - The GS:

• conducts an assessment of the case, consults with the supervisor, and if approved, consults with the regional guardianship attorney prior to filing an application for temporary guardianship;
• makes every effort to obtain and file the CME or the DMR (if applicable) along with the application;
• requests a court-ordered evaluation of the proposed ward if the GS could not obtain a CME despite reasonable efforts to do so;
• prepares with legal assistance, the Order Granting the Temporary Guardianship and other anticipated orders which may be necessary at the 10-day hearing prior to such hearing;
• evaluates whether the proposed ward and/or his or her estate is in need of protection before the 10-day hearing is held to determine whether to:
• request APS file an emergency order for protective services in conjunction with the application for temporary guardianship to protect the person;
• request an injunction against interference with APS investigation or provision of APS services; or
• request a temporary restraining order with legal assistance to protect the estate in conjunction with the application for temporary guardianship;
• completes with legal assistance the Final Accounting for Temporary Guardianship at the close of a temporary guardianship of the estate;
• determines whether permanent guardianship appears to be needed. For example, permanent guardianship may not be appropriate if the abuse, neglect, or exploitation is resolved during the temporary guardianship, or a less restrictive alternative appears to be more suitable; and
• identifies less restrictive alternatives and alternate guardians as appropriate during the temporary guardianship. If permanent guardianship is not needed, the GS closes the case when the temporary guardianship expires.

Discussion and Relevant Information. The CME or DMR is usually filed along with the guardianship application. The court will take no action on the application until the CME or DMR is provided. However, in some cases, it may not be practical to file the CME or DMR with the court at the same time as the application. The applicant can supplement the application with a CME or DMR after filing the application with the court as long as the CME or DMR are not "stale" and meet the requirements of the Probate Code. The CME must be dated not earlier than the 120th day before the day of appointment of a guardian ad litem or court investigator. The DMR must not be obtained earlier than 24 months prior to the date of the hearing. If the proposed ward does not cooperate with the CME or DMR, an exam may be ordered by the court.

Probate Code § 875 permits the appointment of a temporary guardian for individuals 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 application for temporary guardianship requests only the powers and duties necessary to protect the ward and/or his or her estate from imminent danger. Probate Code § 875 also states the court must be presented with substantial evidence which may or may not be medical – it could be testimony. Under a temporary guardianship, the person cannot be presumed to be incapacitated.

DADS may file for temporary guardianship of an APS client when:

• an emergency order for protective services will not resolve the emergency; and/or
• there is imminent danger to the client and/or his or her estate.

The circumstances of a ward are evaluated during the temporary guardianship to determine if permanent guardianship is needed. The GS consults with the supervisor and obtains his or her approval before proceeding with permanent guardianship, if a permanent guardianship is required.

References:
Section 2510, Performing an Assessment of an APS Referral
Section 5124, Final Accounting in Temporary Guardianships
Probate Code §§ 875 – 879

3170  Placement of Ward

Policy: The GS shall ensure the ward is placed in the least restrictive environment which promotes his or her self-reliance, meets his or her needs, and is in his or her best interests.

Required Procedures – The GS:

• consults with the ward to determine his or her wishes and desires and applies the principles of person-directed planning to the degree possible considering the ward's condition and circumstances;
• determines the ward's level of care and researches possible placement options in order to determine suitability considering home and community-based care;
• establishes placement in the least restrictive environment and ensures the ward's needs are met and their best interest is considered;
• may place a young adult ward in an institution such as a state supported living center, ICF-ID, or nursing facility until a slot becomes available and a determination is made by either the local authority (LA) or DADS whether the ward's needs can be met through the community-based program, if home and community-based care does not appear to be a current viable option;
• works to place the ward in less restrictive environments as either the ward's condition or circumstances change so as to warrant such placement;
• works cooperatively with other professionals who can assist with the selection of the most appropriate and least restrictive environment for the ward and arranges for a pre-placement visit when possible; and
• documents all of his or her activity thoroughly in the GOLD case record.

Discussion and Relevant Information. Placement of a ward requires thought, preparation, research and follow-up and is not to be taken lightly. A ward has many needs which must be considered – some of which may appear to be contradictory in nature. The GS considers the desires and wishes of the ward, the impact on the ward's family (if applicable), the services available, and the culture of the facility, etc. The GS visits a new facility prior to placing the ward there, if at all possible.

The ward's existing home circumstances are reviewed to determine if keeping the ward in the home is a viable option in the best interest of the ward. The GS considers ICF-ID and institutional placement for those individuals for whom home or home and community-based placements are not a viable option.

Community-based Medicaid waiver programs are cost-effective home and community-based alternatives for persons with a medically determinable need for institutional care. A person is eligible for only one waiver program at a time. These programs are:

• DADS LA Home and Community-based Services (HCS) for persons of all ages with intellectual disability, as an alternative to ICF-ID (includes HCS and LA);
• DADS Community Based Alternatives (CBA) for elderly persons and adults with disabilities 21 years and older, as an alternative to nursing facilities;
• DADS Medically Dependent Children Program (MDCP) for children with disabilities 21 years and younger, as an alternative to nursing facilities;
• DADS Community Living Assistance and Support Services (CLASS) for persons of all ages with a related condition, as an alternative to ICF-ID;
• DADS Deaf Blind with Multiple Disabilities Program (DBMD) for persons 18 years and older with deafness, blindness, and multiple disabilities, as an alternative to ICF-ID. This waiver extends its eligibility criteria to include children who are deaf, blind, and who have multiple disabilities; and
• DADS Texas Home Living Waiver (TxHmL), which provides essential services and supports for individuals with intellectual disability or a related condition as an alternative to residing in an ICF-ID/RC.

If the ward likely will remain in a CPS foster home after extended foster care expires, the GS places the ward on an interest list for a Medicaid Waiver program. If a ward remains in their home, it is crucial for the GS to arrange for essential services to be provided to the ward and otherwise ensure their needs are met. Examples of such services for a ward residing in his or her home are:

• care of lawn, personal care, housekeeping, and meal preparation;
• provision of pocket money for ward;
• transportation, supervision of medications, medical and psychiatric care;
• careful monitoring;
• charge account at local businesses to access on behalf of ward, as needed; and
• payment of bills.

In certain cases, a ward may benefit from a charge account to meet some of his or her basic needs. A ward's charge account should be set up as follows: "[name of ward], in care of the GS, agent for DADS, guardian." If an account is established, the billing address is the GS's office address. The charge account may require a weekly limit, such as $35 per week for food.

References:
Section 3171, Required Placement on Interest Lists and Permanency Planning Teams
Section 3172, Placement in Licensed Facilities
Probate Code § 767(a)(1)
Appendix II, Services and Placements

3171  Required Placement on Interest Lists and Permanency Planning Teams

Policy: The GS shall place the ward on Medicaid waiver program interest lists given the ward's specific needs in order to ensure a choice regarding future placement in a waiver program as slots become available.

• The GS shall determine the appropriateness of a waiver placement on a case-by-case basis with the ward's input and participation.
• The GS shall make the final decision of whether or not to accept or decline a waiver placement using the principle of best interest decision making.
• The GS shall attend permanency planning meetings as required.

Required Procedures – The GS:

• places wards on the interest lists of home and community-based Medicaid waiver programs within six months of the qualification date;
• attends permanency planning meetings scheduled by a DADS local authority for a ward in accordance with the following:
• all wards under the age of 22 and all wards 22 years old or older unless:
• the ward has sufficient funds in his or her estate so eligibility for Medicaid will never be likely; or
• the ward is already receiving Medicaid waiver services;
• consults with the guardianship supervisor when a waiver placement becomes available prior to making the final decision as to whether or not to accept a waiver slot; and
• documents all actions and consultations in the GOLD case record.

Discussion and Relevant Information. The waiver criteria apply in all living situations whether the ward resides: a) in an apartment or in his or her own home; b) in companion living or in board and care or with a foster or other family; c) in an ICF-ID of any size; d) in assisted living or in a nursing facility; or e) a CPS foster home.

When the GS is spending down the ward's funds for future Medicaid eligibility, the GS places the ward on the interest lists for community-based Medicaid waiver programs for possible eligibility once the funds are spent down. If the ward's funds will never be spent down enough to qualify him or her for Medicaid eligibility, the GS is not required to place the ward on the interest lists for community-based Medicaid waiver programs. However, the decision not to place the ward on interest lists and the rationale should be documented in GOLD.

The decision to accept a waiver program slot is made on an individual case-by-case basis. Although wards' names are maintained on interest lists, there may be reasons a service may not be accepted once the GS is notified the ward is now eligible for an open slot. Some reasons a slot may not be appropriate for acceptance include:

• the court order does not grant the authority to determine residency and/or to arrange Medicaid waiver services in his or her current environment;
• the ward has sufficient capacity as to express their personal choice not to accept a waiver program and the guardian determines it is in the best interest of the ward not to accept such a slot;
• the ward has a recent history of unsuccessful placement in settings less restrictive than an institution;
• the ward feels at home and is maintaining and/or developing new skills in his or her existing residential placement;
• the ward and/or appropriately involved family members do not want him or her to relocate;
• the ward has ties to the community and there is no placement other than an institution available in the community;
• the ward resides in an institution which meets his or her cultural and language needs and other placements in the area do not meet those needs;
• the ward's needs are being met in his or her current environment and he or she has a history of not cooperating with services such as those offered by a Medicaid waiver program; or
• the guardianship staff has other concerns about the ward's ability to adjust to a less restrictive setting.

References: N/A

3172  Placement in Licensed Facilities

Policy: The GS shall seek to place the ward in a licensed, enrolled, or otherwise regulated facility.

• The GS shall exercise caution when placing the ward in a facility not subject to licensure.
• The GS shall establish procedures, issue instructions and otherwise work with caregivers to ensure the ward receives good care.

Required Procedures – The GS:

• seeks to place the ward in a licensed or enrolled facility, such as a nursing facility, assisted-living facility, adult foster-care home, Intermediate Care Facilities for Persons with Intellectual Disability (ICF-ID) or Home and Community-based Services (HCS) home;
• places the ward in a board and care home not subject to licensure only as a last resort when a licensed or enrolled facility is not available or willing to accept a ward;
• exercises caution when placing the ward in a facility not subject to licensure to include the following tasks:
  • obtains information about the potential placement;
  • consults with his or her supervisor about the suitability of the placement;
  • consults with state office program staff, unless the supervisor prefers to do so, and follows any instructions or direction given; and
  • documents his or her activity in the GOLD case record;
• prior to selecting a facility, checks placement standing according to procedures outlined in Section 3173, Checking Placement Standings of Residential Facilities;
• establishes procedures, issues instructions and otherwise works with the caregivers to ensure the ward receives good care;
• provides the facility with a copy of the letters of guardianship and reviews and signs placement documents except those dealing with end of life decisions;
• discusses behavioral problems, service plan objectives, and other concerns with appropriate placement staff;
• sets up a trust fund to provide spending money for the ward; and
• makes regular unannounced visits and takes other reasonable efforts to ensure the ward is receiving adequate care.

Discussion and Relevant Information. Written instructions are provided to the facility to prevent confusion and conflict. The instructions address such things as:

• whether or not there are individuals authorized or restricted from visiting with the ward;
• defining whether visits should be supervised or if there are no restrictions and if a visitor is authorized to take the ward from the facility. If an individual is to have no contact with the ward, the visitor's name and identifying information (as much as is known) is included;
• the ward's daily activities (e.g., should the ward be placed in a chair daily, should the ward go to the beauty shop weekly, can the ward smoke, dietary restrictions, etc.); and
• who is responsible for off-site medical appointments.

References:
Section 3173, Checking Placement Standings of Residential Facilities
Section 3141, Visitors to the Ward

3173  Checking Placement Standings of Residential Facilities

Policy: The GS shall check the placement standing of a licensed or unlicensed facility before placing the ward in a facility, at the beginning of a guardianship, when the ward is being moved and annually by the due date of the annual report.

Required Procedures – The GS:

• checks with the regulatory authority to ensure the facility is in good standing as outlined in Table 3000-3, Placement Standings, when checking placement standings; and
• seeks permission of the supervisor prior to placing a ward in a facility or leaving a ward in a facility not in good standing or with a low rating and only considers leaving a ward in such a facility if there is no alternative placement available;
• continues to explore alternative placement facilities; and
• documents performing the check in the GOLD case record.

The guardianship supervisor:

• discusses the need to leave a ward in a facility which is either unlicensed, has a low rating, or otherwise is considered sub-standard with the ROM, the SD, or other member of the state office management team;
• ensures the GS monitors the placement of a ward in such a facility; and
• documents all consultations in the GOLD case record.

Table 3000-3, Placement Standings

Discussion and Relevant Information. Placement standing information is available by contacting the regulating agency directly. In the case of facilities regulated by DADS, the information is available on-line or by contacting DADS Regulatory Services. The DADS website for the Long Term Care Quality Reporting System is: http://facilityquality.dads.state.tx.us/qrs/public/qrs.do.

Requested criminal background checks referenced in this item are obtained from the Unit Manager for Policy and Program Development (UMPPD) and the Unit Manager for Oversight and Community Supports (UMOCS) or their designee.

References:
Section 1720, Requesting a Criminal History Check

3174  Out-of-Region Placements

Policy: The GS shall consider the best interests of the ward when considering an out-of-region placement.

Required Procedures – The GS:

• considers the following factors:
  • the ward's ties to the community including involvement of family members who live in the area;
  • the existence of services and supports in the area which meet the cultural and language needs of the ward; and
  • the wishes of the ward concerning relocation to another community.

Discussion and Relevant Information. Decisions about where to place a ward can be complex and often involve consideration of issues ranging from the needs of the ward at any given moment, the ability of the current placement or community to meet those needs, and the expressed wishes of the ward and others familiar with his or her circumstances.

References:
Section 3150, Relocation of Ward to Another Region

3180  Notification to Community Resource Coordination Group (CRCG)

Policy: The GS shall ensure when a ward under the age of 22 with a developmental disability is placed in a nursing facility, the Community Resource Coordination Group (CRCG) is notified as required under statute.

Required Procedures – The GS:

• reviews the case file to determine whether a ward under the age of 22 meets the definition of developmental disability and is either in or is being placed in a nursing facility;
• checks with the CPSS to see if a referral has been made to a CRCG in the past and if there is supporting documentation of such referral;
• makes a referral to the CRCG in the proposed ward or ward's county of residence if there is no supporting documentation of a referral; and
• documents the activity in the GOLD case record.

Discussion and Relevant Information. Texas Government Code §531.154 requires a state agency to notify the appropriate community resource coordination group (CRCG) when the state agency is requesting placement of a client under 22 years of age who has a developmental disability in a nursing facility. Although the statute requires the referral be made to the CRCG no later than three calendar days after placement, the GS makes the referral earlier whenever possible.

CRCGs are "... local interagency groups composed of public and private agencies that develop service plans for children and adolescents whose needs can be met only through interagency coordination and cooperation." Once notified of an initial placement of a child or person under the age of 22, each entity involved in the CRCG will contact the person making the placement to ensure awareness of:

• services and support which could provide alternatives to placement of the child in the institution;
• available options; and
• opportunities for permanency planning (Texas Government Code §531.0245).

If the proposed ward or ward's situation meets the requirements for referral to a CRCG and he or she will or has aged out of CPS conservatorship, the GS checks with the CPSS to determine whether a referral has been made to a CRCG in the past. If so, DFPS has met the requirement, and the GS does not make another referral. If a previous referral has not been made to a CRCG, the GS makes a referral to the CRCG in the proposed ward or ward's county of residence.

While initially originated for children and youth, CRCGs are also now developed to serve families (called a CRCGF) and to serve adults with complex multi-agency needs (called a CRCGA). More information about locating a local CRCG may be obtained at the following link: www.hhsc.state.tx.us/crcg/Local_CRCGs/local_NEW.html.

Developmental Disability

1. In general. The term "developmental disability" means a severe, chronic disability of an individual which:
1. is attributable to a mental or physical impairment or combination of mental and physical impairments;
2. is manifested before the person reaches age 22;
3. is likely to continue indefinitely;
4. results in substantial functional limitations in three or more of the following areas of major life activity:
1. Self-care;
2. Receptive and expressive language;
3. Learning;
4. Mobility;
5. Self-direction;
6. Capacity for independent living;
7. Economic self-sufficiency; and
5. reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance of lifelong or extended duration and are individually planned and coordinated.
2. Infants and young children. An individual from birth to age nine, inclusive, who has a substantial developmental delay or specific congenital or acquired condition, may be considered to have a developmental disability without meeting three or more of the criteria described in clauses (i) through (v) of subparagraph (A) if the individual, without services and supports, has a high probability of meeting those criteria later in life (42 USC § 15002(8).

An existing Memorandum of Understanding (MOU) between HHSC and HHS agencies pertaining to those agencies' relationships with CRCGs may be accessed at the following link: www.hhsc.state.tx.us/crcg/RelatedLegislation/mou.html.

Questions about the expectations or provisions within the MOU may be directed to Christy Fair, Program Specialist at DADS Access and Intake, at Christy.fair@dads.state.tx.us.

Additional information pertaining to CRCGs may be obtained at the HHSC CRCG website at www.hhsc.state.tx.us/crcg/crcg.htm.

References:
www.legis.state.tx.us
42 USC § 15002(8)

3190  Foster Care Homes

Policy: The GS shall advocate and make arrangements for the ward to remain in the foster home even after foster care expires depending on the willingness of the foster parent to continue caring for the ward, when it is in the best interest of the ward.

Required Procedures – The GS:

• begins to assess the ward's living situation and make arrangements for continued foster care placement at least three to six months before foster care payments are scheduled to terminate and considers the following:
  • the placement history with the foster care home and the suitability of continued placement in the home; and
  • the willingness of the foster parent(s) to continue providing care beyond the ending of regular foster care placement;
• consults with the supervisor as necessary in deciding whether to continue the existing placement and advocates for continued placement if:
  • it is in the best interests of the ward; and
  • the foster parents are willing to keep the ward;
• conferences with the foster parents to:
  • review the role of DADS as guardian and the expectations of DADS concerning care of the young adult as outlined in the DADS / Foster Parent Agreement Form, Form 5027. However, the foster parents do not sign the agreement until all arrangements are final;
  • negotiate payment terms; and
  • ensure the foster parents understand the young adult will count in the staff-child ratio. For example, if the foster home is licensed as a six-bed home, the foster family will be allowed to serve only five other children in addition to the ward;
• coordinates placement with the foster parent to contact the Child Placing Agency (CPA) to obtain its approval. The foster parents can provide the name and contact person for the CPA. As needed, the GS may request the assistance of the CPS caseworker in contacting the CPA;
• signs the DADS / Foster Parent Agreement Form, as appropriate, and attaches a copy of the form to the GOLD case record; and
• documents all of the activity in the GOLD case record.

Discussion and Relevant Information. The GS enlists the assistance of the CPSS in contacting the CPA. Without the approval of the CPA, the young adult may not remain in the home. Examples of private CPAs are World for Children, Bair Foundation and Casey Family Program. The DFPS region serves as CPA for DFPS foster homes. If the CPA approves of the ward remaining in the foster home, the CPA will request a variance from DFPS Residential Child Care Licensing (RCCL). Variances from RCCL must be obtained in order for the foster home to:

• continue to provide foster care to minors, while a young adult who is 18 years or older and unrelated to the foster family, is living in the home; and
• allow the ward to share a bedroom with minors.

The variance can be approved for up to three years. A new variance must be requested prior to the expiration date if the plan for the ward is to remain in the foster home.

If the GS has any questions or problems, he or she may contact:

• the RCCL licensing representative for the CPA; or
• DADS state office program staff, which will coordinate with CPS and/or RCCL state office program staff.

If a foster family is willing to keep an AOC in their home and the GS is unable to work out a plan using the above guidelines, the GS notifies his or her supervisor and the ROM as soon as possible. The ROM will seek to ensure the appropriate state office guardianship program staff assist in accessing services to allow the child to remain in the foster home.

References: N/A

3191  Agreement with Foster Parent

Policy: The GS shall ensure the DADS / Foster Parent Agreement Form, Form 5027, is signed within 30 days by all parties if the ward remains in the foster home after the extended foster care period has expired.

Required Procedures – The GS:

• signs the agreement upon completion of the arrangements for the young adult to remain in the foster home and ensures the agreement of the CPA. Prior to signing the agreement the GS:
  • reviews each line of the agreement with the foster parents;
  • addresses differences between the roles of CPS as managing conservator and DADS as guardian;
    • addresses differences between the CPS and DADS / Foster Parent Agreements;
• witnesses the foster parents signing the agreement and furnishes them a copy of the signed agreement and attaches:
  • a copy of the letters of guardianship;
  • a copy of the letter to placement, including guardianship staff contact information; and
  • a copy of the ward's service plan to the GOLD case record;
• ensures a copy of the signed DADS/Foster Parent Agreement is filed in the case record and documents other living arrangements/basic care were made and notes the arrangements were made with a CPS or CPA foster home and placement standings were "N/A: DFPS licensed home"; and
• scans and attaches the signed agreement in the GOLD case record.

Discussion and Relevant Information. The agreement between the foster parents and DADS is a legally enforceable document. The purpose of the agreement is to establish terms and expectations between all parties.

References:
DADS/Foster Parent Agreement for Guardianship, Form 5027

3192  Service Delivery for Wards in Foster Care

Policy: The GS shall coordinate with the foster parent(s) to achieve the service plan goals.

Required Procedures – The GS:

• checks status of interest lists for community-based waiver programs to provide assistance to the foster parents (see Section 3171, Required Placement on Interest Lists and Permanency Planning Teams);
• coordinates with the foster parents and arranges other appropriate services for the ward, such as primary home care, Comprehensive Care Program (CCP), DADS, DARS, local authority services, etc.; and
• monitors to ensure care and supervision are provided.

Discussion and Relevant Information. A comprehensive service plan for the wards is required. The service plan should address areas to allow the individual to maximize their capabilities, while incorporating person-directed planning and achievable goals. It should be consistent with the ward's best interests.

References:
Section 3171, Required Placement on Interest Lists and Permanency Planning Teams
Section 3130, Service Plans

3210  Sex Education and Counseling

Policy: The GS shall ensure there are appropriate sex education and counseling resources available to the ward through the use of treatment teams, care providers and by working with the ward directly.

Required Procedures – The GS:

• determines whether the ward understands the concepts of human sexuality, birth control and sexually transmitted diseases; and
• ensures the ward receives developmentally appropriate sex education and counseling through a professional service such as:
  • the treatment team where the ward resides to determine whether the placement will provide or arrange for the training;
  • the Department of State Health Services (DSHS) family-planning agencies offering sex education, counseling, and birth control assistance to Medicaid recipients and income-eligible clients;
  • Planned Parenthood; or
  • local health department or state operated programs.

Discussion and Relevant Information. If sex education and counseling services are not readily available, the GS may obtain appropriate materials and provide the counseling. In this situation, the GS may request the assistance of another professional, such as a registered nurse.

References:
Probate Code §§ 767(a)(2) and 767(a)(4)

3211  Contraception

Policy: The GS shall ensure both female and male wards have access to appropriate contraception.

Required Procedures – The GS:

Female Wards

• makes arrangements for the ward to visit her physician, if she has not seen a physician regarding this issue, or as appropriate;
• talks with the ward's physician to determine appropriate methods of contraception for the ward;
• ensures the ward understands how to use the contraception method;
• ensures immediate caregivers such as placement staff or home care providers are aware of the need to administer any prescribed contraception; and
• directs placement staff to track or assist the ward in tracking her menstrual cycle and directs placement staff to notify the GS of any changes to the menstrual cycle.

Male Wards

• makes arrangements for the ward to visit his physician, if he has not seen a physician regarding this issue;
• talks with the ward's physician to determine appropriate methods of contraception for the ward; and
• ensures the ward understands how to use the contraception method.

Discussion and Relevant Information. The GS works with female wards of childbearing age and their treatment teams, placement staff, foster parents, or physician(s) to ensure the ward is provided with appropriate contraception. The use of a post-coital pill such as Plan B is an approved contraceptive method. Plan B does not require a prescription. Plan B is a form of emergency contraception. Use of any contraceptive method or medication must be considered based on the ward’s medical condition and the potential risks to the ward. This should be discussed with the supervisor and, if appropriate, with the ward’s physician. The use of Mifespristone in larger doses, such as is in Mifeprex aka "RU-486," is an abortifacient terminating a pregnancy. The use of Mifespristone in this manner falls under the policy guidelines set forth in Section 3386, Abortion for Birth Control Purposes.

References:
Probate Code §§ 767(a)(2) and 767(a)(4)

3212  Sexually Transmitted Diseases

Policy: The GS shall ensure matters relating to sexually transmitted diseases are addressed as appropriate by working with the ward and the treatment team, placement staff, foster parents, or physician(s).

Required Procedures – The GS:

• ensures the ward understands methods such as using condoms to protect himself or herself against sexually transmitted diseases and their transmission including but not limited to AIDS and HIV;
• arranges for the ward to be examined by a physician at least annually;
• talks with the ward's physician about the need for HIV or STD testing, if the ward appears to be at risk;
• consults with the supervisor regarding whether or not to vaccinate the ward against HPV; and
• documents all consultations and examinations in the GOLD case record.

Required Procedures – the guardianship supervisor:

• consults with the ROM or other guardianship program management prior to authorizing vaccination against HPV.

Discussion and Relevant Information. It is important for the GS to make every effort to communicate with wards as appropriate, to explain the consequences of risky sexual activity and to explain what sexually transmitted diseases could do to them. When talking with the ward, the GS may use the accepted medical abbreviations as follows:

• AIDS denotes "Acquired immunodeficiency syndrome"
• HIV denotes "Human immunodeficiency virus"
• STD denotes "Sexually transmitted disease"
• HPV denotes "Human papilloma virus"

References:
Probate Code §§ 767(a)(2) and 767(a)(4)

3213  Pregnant Ward or Ward who is a Parent

Policy: The GS shall notify his or her supervisor, the regional guardianship attorney, and the ROM if a ward becomes pregnant, is pregnant, or has a minor child at the time DADS is appointed as guardian.

Required Procedures – The GS:

• provides written documentation and information about the ward's child/parent relationship to all individuals;
• provides written information to the SD in the event the ROM is not available;
• ensures the ward receives OB/GYN care as required;
• in case of a pregnant ward, makes a referral to CPS at the time of delivery;
• notifies CPS if the GS is aware of any potential placement for the child of the ward or if anyone has expressed an interest in taking the child; and
• documents all contacts and consultations including the specific decisions made, and any instructions received, in GOLD.

Discussion and Relevant Information. Although DADS is guardian of the ward, guardianship does not extend to any child of the ward. DADS field staff and the ROM, in consultation with the SD, will determine appropriate action to be taken on a case-by-case basis, which may require a referral to CPS.

References: N/A

3220  Missing Wards

Policy: The GS shall notify his or her supervisor of a ward's disappearance within 24 hours of the GS's notification of the disappearance.

Required Procedures – The supervisor:

• determines whether immediate notification of state office management is appropriate;
• notifies the ROM by the close of the next business day or sooner if a notification is appropriate; and
• ensures complete documentation of all absences or disappearances and returns in GOLD.

Required Procedures – The GS:

• ensures complete documentation of all absences or disappearances and returns is entered in GOLD; and
• take appropriate steps to attempt to locate the ward and return him or her to a safe location in accordance with the following:

Ward Leaves Court-Ordered DADS State Facility for Persons with Intellectual Disability. If a ward committed to a state facility for persons with intellectual disability operated by DADS runs away or becomes lost, it is the responsibility of the facility to make arrangements for the return of the ward.

Required Procedures – The GS:

• maintains contact with the facility regarding the status of the ward's return (H&SC §551.025).

Ward Leaves DADS Placement Unrelated to Commitment or is Removed Without Authorization.

Required Procedures – The GS:

• files a report with law enforcement and works with them and other authorities to return the ward if the ward:
  • wanders off or becomes lost, and the GS is unable to locate him or her; or
  • is removed from the facility without authorization; and
• ensures a photograph is made available to individuals assisting in the search (i.e., another GS, law enforcement, media, etc.), as appropriate.

Ward Refuses to Return. When a ward is located but refuses to return to the placement:

Required Procedures – The GS:

• makes reasonable attempts to persuade the ward to return if the ward ran away;
• requests the assistance of an authority figure, such as a police officer or an individual the ward trusts, such as a friend or family member, if practical; and
• consults with the supervisor, regional guardianship attorney, and state office program staff to explore appropriate legal alternatives (e.g., a writ of attachment or writ of habeas corpus, etc.).

Ward Is Located In Another Region. If the ward is discovered in another region:

Required Procedures – The GS:

• notifies his or her own supervisor who will then notify the supervisor in the region where the ward has been located.

Required Procedures – The supervisor(s):

• in both regions work together to determine the need for a conference call between staff in the two regions; and
• in the region where the ward is currently located assigns a GS to:
  • make a face-to-face visit with the ward within 72 hours;
  • work with staff in the region of guardianship to return the ward; and
  • make monthly status contacts and complete casework activities until the ward is returned.

Required Procedures – The regions:

• Both regions follow Section 3150, Relocation of Ward to Another Region, up to the point of actually transferring the case. The regions work together to determine whether it would be in the ward's best interest to return to the former region or transfer the case to the new region.

Ward Is Located In Another State or Country. If the ward is discovered in another state or country:

Required Procedures – The GS:

• immediately notifies his or her supervisor;
• arranges for the immediate needs of the ward (e.g., medication, food, clothing, shelter, etc.) to the extent possible;
• notifies the guardianship court;
• maintains contact with the ward and/or anyone the ward is residing with as much as is practical; and
• contacts the regional guardianship attorney for advice and counsel.

Required Procedures – The supervisor:

• immediately notifies the ROM.

Required Procedures – The ROM:

• immediately notifies the SD; and
• assists obtaining the assistance from the State or Country's Guardianship Program and/or Adult Protective Services. If none exists in the specific state, the National Guardianship Association (NGA) may be contacted to request assistance. If none exists in another country, the U.S. Consulate will be contacted for assistance.

If all attempts fail to locate or return a ward who has run away, become lost, or has been kidnapped:

Required Procedures – The GS:

• consults with his or her supervisor;
• immediately notifies law enforcement, if kidnapping is suspected; and
• furnishes a digital photo to law enforcement.

Required Procedures – The supervisor:

• notifies the ROM and the SD to determine further actions needed.

Discussion and Relevant Information. A DADS ward may run away or disappear from their primary residence or placement. As guardian, DADS is responsible for arranging the ward's place of residence and being apprised of his or her whereabouts.

If the ward returns within 24 hours, the supervisor determines whether or not there is a need to notify state office management. If there are concerns related to the absence or disappearance (e.g., possibility of kidnapping, stranger interference, medical issues, etc.), the supervisor ensures the ROM or other state office management is notified no later than 24 hours or sooner as the circumstances dictate.

References:
Section 3150, Relocation of Ward to Another Unit
Section 3151, Transfer of Cases From GS to GS
H&SC §551.025

3230  Marriage or Divorce

Policy: The GS shall consult with guardianship program staff if a ward desires to get married, runs away and gets married, or desires to get a divorce, or it appears a divorce may be in his or her best interests.

Required Procedures – The GS:

• consults with his or her supervisor, the regional guardianship attorney, and state office program management staff, unless the supervisor prefers to do so; and
• documents all activity in the GOLD case record.

Discussion and Relevant Information. Depending on the powers specified in the court order, DADS has the right to consent to the marriage or divorce of a ward. However, DADS will generally not consent to the marriage or divorce of a ward except in an extraordinary circumstance determined to be in the best interests of the ward. Decisions are made on a case-by-case basis.

References. N/A

3240  Criminal Behavior of Ward

Policy: The GS shall attempt to deter any involvement of the ward in criminal behavior and shall perform the necessary notifications and actions depending on the identified circumstances.

Required Procedures – The GS:

Reported Criminal Behavior

• looks into reported instances of criminal behavior by the ward; and
• consults with his or her supervisor and regional guardianship attorney as needed.

Ward Using Drugs

• upon learning of a ward's drug use, takes steps to deter further drug use;
• notifies his or her supervisor;
• makes reasonable efforts to determine the source of the drugs and prevent future supply, when possible and controls the ward's money to deter him or her from purchasing drugs; and
• seeks in-patient or out-patient drug treatment for the ward (in this case, the GS is not required to make a report to law enforcement).

Ward Selling Drugs or Engaging in Crime against a Person or Property

• notifies his or her supervisor and the regional guardianship attorney of the ward's behavior;
• takes reasonable measures to attempt to deter the behavior (such as controlling funds, placing the ward in a facility, etc.);
• notifies law enforcement;
• notifies the guardianship court in writing;
• makes a report to APS or CPS if the ward allegedly abused or exploited a child, an adult with a disability, or an elderly person; and
• if a threat is being made against a person, notifies the person the ward is threatening to harm or kill so the person can take appropriate action to protect him or herself.

Discussion and Relevant Information. If a ward is selling drugs or engaging in a crime against a person or property (such as assault, sexual assault, threats of harm to others, theft, destruction of property, etc.), the GS takes actions as appropriate depending on the situation.

References: N/A

3241  Ward Becomes Incarcerated

Policy: The GS shall notify the supervisor, the regional guardianship attorney, state office program management staff and the guardianship court in writing when a DADS ward becomes incarcerated.

Required Procedures – The GS:

• makes the notifications as required to DADS staff and informs the jail and the criminal court DADS is the guardian; and
• ensures an attorney is appointed to defend the ward in the criminal case, as appropriate.

Discussion and Relevant Information. The GS is required to continue to make monthly status contacts with incarcerated wards in accordance with the procedures outlined in Table 3000-1 found in Section 3142, Exceptions to Monthly Status Contacts, of this section.

References:
Section 3142, Exceptions to Monthly Status Contacts

3250  Death of Ward

Policy: The GS shall report all deaths of a ward to his or her supervisor by the next working day after learning of the death, and in the absence of the supervisor, report it to the ROM.

• The GS shall notify the guardianship court of the ward's death by the next working day following the death.
• The GS shall immediately report any deaths occurring under unusual circumstances to law enforcement and to the guardianship supervisor who will then staff the situation with the ROM and the SD.
• The guardianship supervisor shall immediately report any death of a seemingly healthy individual or the death of a ward occurring under unusual circumstances to the ROM or the SD.
• The GS shall immediately report any medical event occurring to a ward which results in the ward becoming diagnosed as "brain dead" to the guardianship supervisor who then staffs the situation with the ROM and the SD.

Required Procedures – The GS:

• consults with his or her supervisor regarding the death of a ward and follows the directions and the advice of the supervisor as to the actions to take regarding requesting an autopsy, donating organs, etc.;
• consults with the supervisor and with the ROM or the SD and addresses all concerns regarding the need or a request for an autopsy;
• consults with the supervisor, state office program management staff, and the regional guardianship attorney regarding next steps in the event local authorities do not request an autopsy and the GS has concerns an autopsy is warranted;
• immediately reviews the records maintained on the ward by the program and the medical placement facility;
• consults with the supervisor to determine if a report should be made to either law enforcement or to an agency regulating the facility, if incidents occurred (e.g., fall, head injury, fight, etc.); and
• makes the appropriate funeral arrangements for the ward, notifies survivors of the ward and other interested parties, applies for the funeral benefits (if applicable) and otherwise sees to the final arrangements for the ward.

Required Procedures – The guardianship supervisor:

• reports the death of a seemingly healthy individual or the death of a ward occurring under unusual circumstances to the ROM or the SD.

Discussion and Relevant Information. Situations generally considered unusual include, but are not limited to, those in which the ward dies:

• an unnatural death or dies from causes unknown;
• by unlawful means or by suicide, actual or suspected;
• by family violence or by abuse;
• without being attended by a physician; or
• while incarcerated.

In coordination with law enforcement, the office of the Medical Examiner or the local Justice of the Peace may conduct an inquest to determine whether an autopsy is indicated by the circumstances. The review of the records should focus on determining if there are survivors previously unknown to the current GS and determining if incidents occurred which may have contributed to the death of the ward.

When reporting the death of a ward to the court, the GS may use the Notice of Death of Ward form.

References:
Section 4281, Burial – Purchasing a Pre-Need, Burial or Cremation Policy
Section 3440, Funeral Arrangements
Section 3410, Final Duties of Guardian of Person
Notice of Death of Ward Form, Form 5043

3260  Ensuring Safety of a Ward with Access to Guns or Ammunition

Policy: The GS shall ensure the ward does not have ready access to guns, a gun collection or ammunition.

Required Procedures – The GS:

• assesses the environment for risk and the ward's access to guns and seeks to ensure gun-related property is secured from the ward's ready access (e.g., placed in a gun safe with the ward having no access, guns have trigger locks and are unusable, etc.);
• consults with and coordinates steps to reasonably secure or ensure the removal of guns and ammunition from the home or works with guardian of the estate to ensure the ward's access to the gun-related property is restricted or highly diminished, if the risk is high and there is a guardian of the estate other than DADS.
• discusses with the guardian of the estate the appropriateness of continuing to store gun-related property in the ward's home and steps which should be taken to address the ward's security and safety issues;
• relocates the ward to a more appropriate placement, away from the gun-related property to ensure their safety if the guardian of the estate is unwilling and does not address the security and safety issues in a reasonable and timely manner;
• notifies the supervisor and the regional guardianship attorney of exceptional situations; and
• documents actions and consultations in the GOLD case record.

Discussion and Relevant Information. If the ward owns gun-related property and DADS is guardian of person, but not guardian of the estate, the GS:

• has no legal responsibility for the gun(s), gun collection, or ammunition owned by the ward; and
• does not have the authority to take any action related to this property except as addressed within this item.

Under no circumstances are guns or gun-related property belonging to a ward to be stored in a DADS guardianship office or the residence of a ward.

References:
Section 5837, Sale of Guns and Gun-Related Property

3270  Registration for Selective Service

Policy: The GS shall register male wards between the ages of 18 and 26 with the Selective Service within 30 days of their 18th birthday or as soon as possible if it is determined the ward is between the ages of 18 and 26 and has not previously been registered.

Required Procedures –The GS:

• seeks information on the ward's registration status and registers the ward on-line at the Selective Services website, if appropriate;
• registers a ward subject to registration who is presently hospitalized, in a mental institution, or incarcerated within a prison within 30 days of release;
• completes and returns a reminder card received from the Selective Service and files a copy of the registration document with the registration acknowledgement card received under the correspondence/miscellaneous tab in the guardianship case record; and
• documents completion of the registration requirement, including scanning and attaching the registration document, in the GOLD case record.

Discussion and Relevant Information. Federal law requires most men between the ages of 18 and 26 (including men with disabilities) to register with the Selective Service. The Selective Service is not currently authorized to classify registrants for the draft for the purpose of determining the registrant's suitability for and exemptions or eligibility from service.

Although registration is required within 30 days of the 18th birthday, late registration is accepted. If the GS does not know if a ward subject to registration has registered, he or she can check by using the Selective Service website, http://www.sss.gov/FSwho.htm or by calling (847) 688-6888. The GS uses his or her office address for the ward's address to ensure receipt of correspondence. When registering a ward, the GS may also mail completed forms obtained from a local post office to:

References: N/A

3280  Annual Report of the Person (Also see Section 5000, Legal Actions and Information)

Policy: The GS shall file an annual report of the person in the appropriate court no later than the 60th calendar day after the anniversary date of qualification when DADS is guardian of the person, as found in Section 5870, Annual Report of the Person –Requirement to File.

Required Procedures – The GS:

• prepares (with legal assistance), signs and files the annual report prior to the due date; and
• documents the activity in the GOLD case record.

Discussion and Relevant Information. When DADS is guardian of the person, annual reports of the guardian of the person are due to the court no later than the 60th calendar day after the anniversary date of the date of qualification. Annual reports are not required if DADS is guardian of the estate only. Preparation of the annual report is a legal requirement and the information for preparing the report can be located in Section 5000, Legal Actions and Information.

References:
Section 5870, Annual Report of the Person – Requirement to File
Probate Code §§659, 743 and 744

3290  Coordination With Guardian of the Estate

Policy: The GS shall make reasonable efforts to meet and coordinate with a guardian of the estate on a regular and on-going basis.

• The guardianship supervisor shall ensure concerns about actions of the guardian of the estate are reported to the court in a timely manner.

Required Procedures – The GS:

• seeks a meeting with the Guardian of the Estate (GOE) at least quarterly in the first 12 months of a guardianship and annually thereafter or as needed to review the status of the ward;
• seeks the direction of the supervisor when the GOE will charge the ward's estate for meeting the GS;
• expresses concerns about actions of the GOE to the supervisor and follows their direction as outlined in Section 4600, Mismanagement by a Fiduciary;
• reports concerns to the court as directed by the supervisor;
• ensures the court is furnished with information when there is evidence or reason to believe the GOE has failed to act to protect the ward's assets or meet the ward's needs upon direction of the supervisor or the ROM;
• seeks a meeting with a new GOE or a previous GOE to formally review, inspect and transfer assets and property:
  • completes the Property Acknowledgment and Property Review and Condition Checklist and notes the property condition including any existing damage and/or repairs needed or concerns; and
  • obtains or seeks a signature of the existing or new GOE verifying the transfer meeting took place, the receipt of property, and the condition of the property;
• scans and attaches the Property Acknowledgment and Property Review and Condition Checklist and notification to the court to the GOLD case record; and
• documents all contacts with the GOE and all attempts to meet with the GOE in the GOLD case record.

Required Procedures – The supervisor:

• ensures the GS meets with the GOE or makes reasonable attempt to meet at least quarterly in the first 12 months of the guardianship and annually thereafter or as needed and documents all contacts with the GOE;
• reviews and verifies the Property Acknowledgment and Property Review and Condition Checklist are completed;
• discusses any significant concerns with the property or the transfer with the ROM;
• discusses concerns raised about the actions of the GOE with the ROM and directs the GS to notify the court upon verification with the ROM;
• reviews the GOLD case record to ensure the documents pertaining to court notifications, Property Acknowledgment and Property Review and Condition Checklist are attached; and
• documents all consultations and actions in the GOLD case record.

Discussion and Relevant Information. DADS may be appointed temporary Guardian of the Estate (GOE) prior to a permanent GOE being appointed. In those cases, DADS assumes control of the estate and upon appointment of a different individual as GOE, transfers the assets including monies and property to the GOE. A face-to-face meeting with the GOE is preferred. However, a telephone conference is acceptable. DADS may also be appointed GOE as a successor to an independent GOE or family member who has served as GOE. It is important to ensure there is a process to formally review the conditions and assets of the estate and to document those conditions and the act of transferring the estate.

The property acknowledgment is completed whether DADS is receiving or distributing property as either GOP or GOE. The property review and condition checklist is completed whenever:

• DADS is appointed temporary or permanent guardian;
• DADS is transferring assets to a successor guardian;
• returning property to an individual whose rights have been restored; or
• DADS is authorized to distribute property.

The GS reports concerns with misappropriation or mismanagement of estate to appropriate authorities as outlined in Section 4600, Mismanagement by a Fiduciary, after consultation with the supervisor and as appropriate.

References:
Property Acknowledgment, Form 5036
Property Review and Condition Checklist, Form 5024

3310  Duty to Promote Ward's Health

Policy: The GS shall arrange for healthcare and preventative services promoting the health and well-being of the ward.

Required Procedures – The GS:

• secures and authorizes needed and preventative medical and dental services, and services to persons with mental illness or intellectual disability for the ward, as the ward's financial means permit;
• periodically examines the medical records of the ward if he or she is a resident of a facility;
• speaks with attending physician(s) and other caregivers to ensure the ward is receiving proper and necessary medical and dental services, and services to persons with mental illness or intellectual disability; and
• documents all contacts made regarding the health care of the ward in the GOLD case record.

Discussion and Relevant Information. Responding to the physical and mental health needs of a ward is a basic tenet of being guardian of the person. A GS is entrusted with the responsibility of ensuring a ward's needs are met in a timely and expeditious manner. Failure to provide for the basic medical and mental health needs of a ward is a serious matter resulting in a disciplinary action up to and including dismissal from the program and could result in a finding of neglect in a DFPS investigation. In addition, failure to provide for the ward’s needs could result in a report being filed with the Guardianship Certification Board or the National Center for Guardianship Certification which might result in possible disciplinary action up to and including suspension or revocation of national registration or state certification.

References:
Section 3130, Service Plans
Probate Code §§ 767(a)(2) and 767(a)(4)

3311  Criteria for Making Medical Decisions

Policy: The GS shall use the criteria for making medical decisions outlined below when making healthcare decisions on behalf of a ward.

Required Procedures – The GS:

• uses professional judgment to make routine decisions relating to the provision of medical and dental services but consults with his or her supervisor if the circumstances are unusual or non-routine.
• is legally required to honor the specific written wishes expressed by the ward in an advance directive executed prior to the appointment of a guardian such as:
  1. a directive to physicians (Section 3331, End-of-Life Decisions – Expressed Wishes or Advance Directives);
  2. an out-of-hospital do-not-resuscitate order issued by the ward (Section 3340, Out-of-Hospital Do-Not-Resuscitate Order (Out-of-Hospital DNR)); or
  3. a medical power of attorney, if not revoked by the court after DADS is appointed as guardian (Section 3350, Medical Power of Attorney (POA));
• considers the current wishes of the ward, unless the ward made specific declarations of his or her wishes prior to the appointment of a guardian;
• honors the ward's current wishes, if appropriate, when the ward appears to understand the nature of his or her illness and the consequences of receiving or not receiving treatment;
• considers each case individually;
• makes decisions based on the perceived best interests of the ward, when reliable evidence of the ward's prior specific wishes does not exist and the ward is currently unable to understand the nature of his or her illness or the consequences of treatment. In determining the best interests of the ward, the GS considers the current wishes of the ward and the wishes of any family members who are involved with the ward;
• makes an informed judgment and does not consent to treatment until the information has been gathered which establishes:
  • the reason for and nature of treatment;
  • the benefit or necessity of the treatment;
  • the possible risks and side effects of the treatment; and
  • alternative treatments or measures which are available and their respective risks, side effects, and benefits; and
• documents actions, decisions and consultations in the GOLD case record.

Discussion and Relevant Information. For purposes of medical decision making, routine services include:

• interventions which can be performed without anesthesia or with only a local anesthetic; and
• services to persons with intellectual disability outlined in Section 3370, Applying for Out-Patient Services for Persons with Intellectual Disability.

If the ward wrote his or her wishes on a piece of paper or there is reliable evidence the ward expressed them orally to another person before becoming incapacitated, the GS generally honors these wishes, except in unusual circumstances.

DADS staff exercise a level of diligence in making medical decisions to ensure the ward is provided the best medical care possible given their circumstances.

References:
Section 3370, Applying for Out-Patient Services for Persons with Intellectual Disability
Section 3331, End-of-Life Decisions – Expressed Wishes or Advance Directives
Section 3340, Out-of-Hospital Do-Not-Resuscitate Order (Out-of-Hospital DNR)
Section 3350, Medical Power of Attorney (POA)
Probate Code § 767(a)(4)
H&SC Chapter 166

3312  Major Medical Decisions

Policy: The GS shall consult with his or her supervisor when making medical decisions for other than routine services and obtain required authorizations except in an emergency.

Required Procedures – The GS:

• consults with the supervisor regarding procedures of a serious nature (e.g., major surgery, administration of general anesthesia, medical treatment involving risk, controversial behavior therapies, etc.);
• consults with the supervisor and the ROM or SD regarding extraordinary medical procedures involving a higher than normal risk of death or which may result in a loss of a limb (e.g., experimental treatment, the donation or receipt of an organ, open heart surgery, brain surgery, etc.);
• consults with the supervisor and together they determine if a second professional opinion is needed;
• seeks a second opinion from a physician, dentist, or qualified mental illness/intellectual disabilities professional, if approval is given to do so;
• seeks court approval for experimental treatments or for organ donation;
• notifies the supervisor regarding issuance of an out-of-hospital DNR order if the ward previously issued a directive to physicians or a decision to withhold or withdraw life-sustaining treatment in the hospital if the ward previously issued an out-of-hospital DNR; and
• documents all of his or her activity in the GOLD case record including consultations with state office program staff or the regional guardianship attorney.

Discussion and Relevant Information. Situations, in which a second professional opinion may be needed, include but are not limited to those in which:

• a second professional opinion is needed to ensure objectivity and assist DADS staff in selecting the best option when needed before making a final decision to pursue court approval or to consent to interventions not requiring court approval;
• the opinion of a specialist is indicated;
• the suggested procedure might place the ward at risk of harm; and
• there are several treatment options and a second opinion might assist DADS staff in selecting the best option.

DADS must obtain a court order before consenting to certain medical treatment such as organ donation from or to a living ward. DADS may not consent to certain services for persons with mental illness or intellectual disability, such as requests for voluntary admission of a ward into a psychiatric facility or to a public or private in-patient facility or residential facility operated by DADS. The court must order the ward to receive such services during a commitment hearing.

Since Medicaid or Medicare do not cover some experimental treatments and organ transplants, a determination must be made whether the procedure is covered by Medicaid or the ward's Medicare benefits, or whether the ward has a source of funds to pay for the treatment. When experimental treatment or organ transplant for the ward is recommended in writing by the physician and a funding source is available, a decision based on the benefit or best interests of the ward is made by the GS, the supervisor, the ROM, and the SD.

References:
Probate Code §§ 767(a)(4) and 770(b)

3313  Informed Consent for Medical Decisions

Policy: The GS shall consider the current wishes of the ward, and shall attempt to explain to the ward the nature of their illness and the consequences of receiving or not receiving treatment, as applicable.

Required Procedures – The GS:

• seeks to determine the ward's current wishes;
• makes the decision based on the best interests of the ward when reliable evidence of the ward's prior specific wishes does not exist and the ward is currently unable to understand the nature of his or her illness or the consequences of treatment;
• consults with his or her supervisor and family members, where appropriate; and
• documents all consultations and the basis of the decision in the GOLD case record.

Discussion and Relevant Information. Making medical decisions including end-of-life decisions requires the careful consideration of the ward's wishes and, as far as possible, should be done using basic principles of person-directed planning.

References: N/A

3320  Court Approval Required by DADS for Medical Interventions

Policy: The GS shall seek court approval in decisions involving specified extraordinary medical interventions.

Required Procedures – The GS:

• seeks supervisory approval, consults with the regional guardianship attorney, and involves the court before consenting to the following extraordinary medical procedures:
  • withholding life-sustaining treatment (except in an emergency) if the ward did not execute a directive to physicians or out-of-hospital DNR order prior to incapacity;
  • experimental treatment/organ transplant; and
  • electro-convulsive treatment when the ward's wishes are unknown or the ward agrees with it;
• attempts to obtain written approval from the court prior to proceeding with the action;
• obtains verbal approval if there is insufficient time to get written approval and obtains written authorization from the court as soon as possible acknowledging the action was authorized; and
• documents the contact with the court in the GOLD case record and notifies his or her supervisor if the court refuses to provide written approval.

Required Procedures – The supervisor:

• consults with state office program staff to consider alternatives to the procedures listed above on a case-by-case basis if immediate action is needed or extenuating circumstances occur.

Discussion and Relevant Information. DADS policy is consistent with the NGA Standards of Practice in involving the court before consenting to the extraordinary medical procedures outlined above.

When obtaining written approval from the court, the GS may submit a pre-written letter to the judge for his or her signature or an application and order.

References:
www.guardianship.org/pdf/standards.pdf

3321  Withholding or Withdrawing Life-Sustaining Treatment

Policy: The GS shall ensure, prior to withholding or withdrawing a life-sustaining treatment, all statutory and program requirements are met.

Required Procedures – The GS:

• honors advance directives executed to physicians or out-of-hospital DNR orders before he or she became incapacitated;
• makes treatment decisions in conjunction with the physician in situations where a directive to physicians or a DNR was not executed prior to incapacity including;
  • a decision to withhold (commonly known as a do-not-resuscitate order) or withdraw (remove) life-sustaining treatment in a hospital setting if the ward has a terminal or irreversible condition (H&SC §166.039(a)). A treatment decision in a hospital setting may also be called a "directive to physician" but in this instance it is from the guardian on behalf of the ward; and
  • to execute an out-of-hospital DNR order directing health care professionals acting in an out-of-hospital setting not to initiate or continue cardiopulmonary resuscitation (CPR) and certain other life-sustaining treatment (H&SC §166.088(a));
• ensures withholding or withdrawing life-sustaining treatment does not occur if the ward is a pregnant female;
• if the attending physician refuses to comply with a decision made by DADS, the procedures outlined in H&SC §§166.045(c) and 166.046 (Section 3333, Physician's Refusal to Comply with an Advance Directive) must be followed; and
• prior to withdrawing or withholding life support measures from a ward for any reason, the GS and the guardianship supervisor, with assistance from the regional guardianship attorney, review the guardianship order to determine if the guardian has the legal authority to make the decision.

Required Procedures – The supervisor:

• consults with the regional guardianship attorney and, as circumstances may warrant, with the ROM. If the ROM is not available, the supervisor consults with the SD, or if both the ROM and SD are unavailable, consults with either the UMPPD or the UMOCS.

Discussion and Relevant Information. Making a decision to withhold or withdraw life support measures is a serious matter which always requires consultation with the supervisor. DADS policy is to also involve the court before consenting to extraordinary medical procedures such as withdrawing or withholding life-sustaining treatment (except in an emergency) if the ward did not execute a directive to physicians or out-of-hospital DNR order prior to incapacity.

If a directive to physicians or an out-of-hospital DNR was not executed prior to the courts finding of incapacity, the Health & Safety Code (H&SC) gives the physician and the guardian the authority to make decisions in cases where no advance directive or DNR was executed.

The guardianship supervisor, in consultation with the regional guardianship attorney, may determine a court approval is needed or not needed based on the order appointing DADS as guardian. It is the responsibility of the guardianship supervisor to determine whether or not the situation requires consultation with program management in state office.

Health & Safety Code §166.049 prohibits withdrawing or withholding life-sustaining treatment from a pregnant woman.

References:
Section 3333, Physician's Refusal to Comply with an Advance Directive
H&SC §§ 166.039(a), 166.045(c), 166.046, 166.049, and 166.088(a)

3322  Emergency Treatment

Policy: The GS shall consent to or decline medical treatment in the best interest of the ward, during an emergency, foregoing established approval procedures, and shall make every attempt to consult with his or her supervisor on the decision to proceed.

Required Procedures – The GS:

• authorizes or declines medical treatment in an emergency based on a reasonable assessment of the factors required in Section 3311, Criteria for Making Medical Decisions;
• may authorize or decline medical intervention without:
  • consulting with the supervisor, although he or she makes every effort to do so;
  • obtaining a second medical opinion, as outlined in Section 3312, Major Medical Decisions; or
  • consulting with the supervisor, state office program staff, regional guardianship attorney and the judge before consenting to a do-not-resuscitate order; and
• speaks with the treating or attending physician before authorizing or declining medical treatment.

Discussion and Relevant Information. The GS makes every reasonable attempt to consult with the supervisor before authorizing or declining medical intervention or seeking a second medical opinion when faced with an emergency situation. Additionally, the GS makes every reasonable attempt to consult with the supervisor, state office program staff, regional guardianship attorney and the court before consenting to a do-not-resuscitate order. Notice to the court before consenting to a do-not-resuscitate order occurs only in those courts which require such consultation, if there is a new judge, or if the order is unclear.

References:
Section 3311, Criteria for Making Medical Decisions
Section 3312, Major Medical Decisions

3330  Advance Directives – General Information.

In certain cases, the ward, before becoming incapacitated, or another person may have executed one or more advance directives on behalf of the ward prior to the appointment of DADS as guardian. An advance directive is defined in Health and Safety Code (H&SC) §166.002(1) as:

• a directive to physicians;
• an out-of-hospital Do-Not-Resuscitate (DNR) order; or
• a medical power of attorney.

As guardian, DADS is legally required to honor the specific written wishes expressed by the ward in an advance directive executed prior to the appointment of a guardian such as a directive to physicians, an out-of-hospital DNR order issued by the ward, or a medical power of attorney, if not revoked by the court after DADS is appointed as guardian.

A "directive" is an instruction made under H&SC §§ 166.032, 166.034 or 166.035 to administer, withhold or withdraw life-sustaining treatment in the event of a terminal or irreversible condition.

An out-of-hospital DNR order is a legally binding written order prepared and signed by the attending physician of a person which contains the instructions of a person or his or her legally authorized representative and directs health care professionals in an out-of-hospital setting not to initiate or continue the following life-sustaining treatments:

• cardiopulmonary resuscitation (CPR);
• advanced airway management;
• artificial ventilation;
• defibrillation;
• transcutaneous cardiac pacing; or
• other life-sustaining treatment.

A medical POA is a legally binding document which delegates authority to an individual, called an agent, to make health care decisions for a person, called a principal, if the person becomes incapacitated and cannot make those decisions.

3331  End-of-Life Decisions – Expressed Wishes or Advance Directives

Policy: The GS shall identify and follow the ward's expressed wishes regarding end-of-life decisions to the extent possible and shall determine the existence of any advance directives by the ward and honor those directives in accordance with applicable laws.

Required Procedures – The GS:

• reviews all pertinent information, makes every attempt to determine the ward's wishes regarding end-of-life decisions, and documents those wishes clearly in the GOLD case record;
• seeks to determine if the ward or another person legally acting on behalf of the ward prior to the guardianship executed one or more advance directives, and reviews the directives;
• honors the ward's expressed wishes as far as possible, or in the event of any advance directives, makes every effort to honor those directives, in the event an end-of-life decision must be made; and
• scans and attaches the advance directives in the GOLD case record.

Discussion and Relevant Information. If the ward wrote his or her wishes on a piece of paper or there is reliable evidence the ward expressed them orally to another person before becoming incapacitated, DADS guardianship staff will generally honor these wishes, except in unusual circumstances.

References: N/A

3332  Implementing an Advance Directive

Policy: The GS shall implement an advance directive in keeping with the terms and conditions of the directive and in accordance with state law.

Required Procedures – The GS:

• obtains a copy of a ward's advance directive and files the copy in the case record of the ward and follows supervisor direction regarding filing of all original advance directives (Section 6251, Personal Records of the Ward);
• obtains a copy of the portion of the medical record in which it was recorded and the names of witnesses which were entered if the directive to physicians was issued verbally, if an advance directive (only a directive to physicians or out-of-hospital DNR) is issued by non-written communication;
• if the ward has not been certified as a qualified patient having a terminal or irreversible condition and the directive is not yet effective:
  • compares the directive with Section 3340, Out-of-Hospital Do-Not-Resuscitate Order (Out-of-Hospital DNR), as applicable, to ensure the requirements are met;
  • provides a copy to the regional guardianship attorney for his or her review and consultation; and
  • notes the existence of the directive in the GOLD case record;
• when it appears the ward has a terminal or irreversible condition and the advance directive should be implemented, the GS:
  • notifies his or her supervisor and the regional guardianship attorney;
  • consults with the physician; and
  • if the attending physician certifies the ward has a terminal or irreversible condition, obtains a copy of the notations in the medical record made by the attending physician;
• notifies the court in writing if the ward has an advance directive and the advance directive is in effect; and
• documents actions, consultations and notifications in the GOLD case record.

Discussion and Relevant Information. Although the GS notifies the court an advance directive is in effect, approval from the court to withhold or withdraw life-sustaining treatment is not required. The court is required by law to honor the advance directive.

References:
Section 3340, Out-of-Hospital Do-Not-Resuscitate Order (Out-of-Hospital DNR)
Section 6251, Personal Records of the Ward
H&SC Chapter 166

3333  Physician's Refusal to Comply With an Advance Directive

Policy: The GS shall consult with his or her supervisor and regional guardianship attorney and follow their instructions when a physician refuses to comply with an advance directive.

Required Procedures – The GS:

• ensures life-sustaining treatment shall be provided to the ward until:
  • a reasonable opportunity has been afforded to transfer the ward to another physician or health care facility willing to comply with the advance directive or treatment choice; or
  • the refusal is reviewed by an ethics or medical committee (H&SC §166.046); and
• seeks direction as to:
  • attending the ethics review committee meeting;
  • the specifics of H&SC §166.046 related to the ethics committee process; and
  • DADS' response to the decision of the ethics committee.

Discussion and Relevant Information. DADS will be informed of the committee review process within 48 hours of the review process when a refusal to comply is referred to an ethics committee. A DADS representative is entitled to attend the meeting and receive an explanation of the decision reached by the ethics committee (H&SC §166.046). If the attending physician, ward, or DADS as guardian does not agree with the decision reached by the committee, the physician and/or the health care facility makes reasonable efforts to transfer the ward to another physician, alternate care setting or facility and follow other procedures under H&SC §166.046. DADS bases its response to the decision reached by the ethics committee on the guidelines outlined in Section 3311, Criteria for Making Medical Decisions.

References:
Section 3311, Criteria for Making Medical Decisions
H&SC §166.046

3340  Out-of-Hospital Do-Not-Resuscitate Order (Out-of-Hospital DNR)

Policy: The GS shall determine the existence of an out-of-hospital DNR executed by a ward and ensure it was prepared on the approved form issued by the Texas Medical Association and the Department of State Health Services.

Required Procedures – The GS:

• reviews the ward's case file, records at the facility, and records in the possession of the ward to determine if the ward has an out-of-hospital DNR;
• furnishes the facility with a copy of the out-of-hospital DNR and files the original in the ward's case file, if he or she locates a DNR; and
• documents the ward has an out-of-hospital DNR and includes identifying information such as the date it was signed, the attending physician's name, and the names of any witnesses, in the GOLD case record.

Discussion and Relevant Information. An out-of-hospital DNR is one of three types of "Advance Directives" under Texas law.

The order does not include authorization to withhold medical interventions necessary to provide comfort or care, to alleviate pain, or to provide water or nutrition. An out-of-hospital setting means a location in which emergency health care professionals are called for assistance, including long-term care facilities, in-patient hospice facilities, private homes, hospital outpatient or emergency departments, physician's offices, and vehicles during transport (H&SC §166.081(7)). A person may also issue an out-of-hospital DNR by non-written communication but the attending physician must record it in the medical record and the witnesses must also sign the record (H&SC §166.084).

The following individuals may issue an out-of-hospital DNR order:

• a competent adult on his or her own behalf (H&SC §166.082(a));
• the attending physician and a legal guardian, an agent having a medical power of attorney (POA), or a proxy designated by the person in a directive to physicians for an incompetent person, based on what the person would desire, if known (H&SC §166.082(d) and (e));
• the attending physician and at least one qualified relative, for an incompetent person who does not have a legal guardian, agent, or proxy (H&SC §166.088(b)); or
• the attending physician and another physician who is not involved in the treatment of the patient or who is a representative of the ethics or medical committee of the health care facility in which the person is a patient, for an incompetent person who does not have a qualified relative, guardian, proxy or agent (H&SC §166.083(f)).

The only form for a written out-of-hospital DNR order is issued by the Texas Medical Association and the Department of State Health Services. The form is available at http://www.dshs.state.tx.us/emstraumasystems/dnr.shtm. No other forms are acceptable. The document does not have to be notarized or filed in court. A photocopy or other facsimile of the original written out-of-hospital DNR order may be used for any purposes for which the original document may be used under H&SC Chapter 166 (H&SC §166.083(d)).

A person who has completed an out-of-hospital DNR form may wear an out-of-hospital DNR identification device around the neck or wrist. The form and/or the identification device allow medical personnel responding to an emergency in an out-of-hospital setting to readily identify the person as an out-of-hospital DNR candidate.

If the person is incompetent but previously executed a directive to physicians in accordance with H&SC Subchapter B, the physician may rely on the directive as the person's instructions to issue an out-of-hospital DNR order (H&SC §166.082).

References:
H&SC §§166.081(7), 166.082 (a), (d), and (e), 166.083, and 166.088(b)

3341  Consent to a Do-Not-Resuscitate (DNR) Order

Policy: The GS shall follow program procedures in consenting to a DNR when the ward has not previously issued a directive to physicians or out-of-hospital DNR prior to his or her incapacity.

Required Procedures:

• First Time Consent to a DNR. The guardianship staff must observe the procedures set forth in Table 3000-4, Actions Required When Staff Initiate Consent to a DNR the First Time, when consenting to a DNR order in cases in which the ward did not issue a directive to physicians or issue an out-of-hospital DNR order before he or she became incapacitated.

Table 3000-4, Actions Required When Staff Initiate Consent to a DNR the First Time

• Successive consents to a DNR Order. GS Issues Successive DNR Orders on a Ward's Behalf. The GS follows procedures outlined in Table 3000-5, Actions Required When Staff Issue Successive Consent to DNR Orders, if issuing successive consents to a DNR order. The GS is not required to repeat steps #1-6 in the preceding table, Actions Required When Staff Initiate Consent to DNR the First Time, unless the ward's condition changes before issuing successive DNR orders.

Table 3000-5, Actions Required When Staff Issue Successive Consent to DNR Orders

• H&SC Chapter 166 makes no provision for one or more physicians to issue a DNR for a ward without the consent of the guardian. If a physician issues a DNR order for a DADS ward without the consent of DADS, the GS immediately notifies the supervisor and regional guardianship attorney.

Discussion and Relevant Information. A guardian may make a decision to withhold or withdraw life-sustaining treatment when a ward has not previously issued a directive to physicians or an out-of-hospital DNR order. These decisions are also known as the guardian issuing a directive to physicians or an out-of-hospital DNR order on behalf of the ward. In this section, such decisions by a guardian will be referred to as "consenting to a DNR" since the guardian normally makes such decisions at the recommendation of a health care professional.

It is important to gather information and to complete pre-planning activities prior to a crisis. Pre-planning is part of the service planning process. It should include discussions with the ward and family members (as appropriate) regarding the use of DNR.

References:
Section 3311, Criteria for Making Medical Decisions
Section 3321, Withholding or Withdrawing Life-Sustaining Treatment
H&SC Chapter 166
Physician's Certificate of Irreversible or Terminal Condition, Form 5124
Notification of Consent to DNR, Form 5125

3342  Consenting to a DNR Order in an Emergency

Policy: The GS may consent to a DNR order without consulting his or her chain of command and the judge if a terminally ill ward or a ward with an irreversible condition who does not have a DNR order suddenly experiences a serious medical emergency requiring life-sustaining treatment.

Required Procedures – The GS:

• obtains a copy of the portion of the medical record in which two physicians certified the ward was terminally ill or had an irreversible condition and a DNR order was issued;
• notifies the supervisor, state office program staff, the DADS guardianship attorney, and the court of the action taken; and
• documents all actions and any consultations (e.g. medical staff, family, etc.) taken in the GOLD case record.

Discussion and Relevant Information. In a situation where a terminally ill ward or a ward with an irreversible condition who has a DNR in place experiences a serious medical emergency requiring life-sustaining treatment, such as a cardiac arrest, the best interest of the ward is often served by letting the natural course of events take place. Resuscitation itself is a physically traumatic and painful process and in many cases may serve no real purpose other than to prolong the inevitable. If the ward expressed a wish to the guardian to be kept alive until some imminent event can occur, the guardian may choose to attempt to keep the ward alive until the guardian can consult with his or her supervisor or program management. However, this situation is extremely rare and should be used with caution.

References: N/A

3350  Medical Power of Attorney (POA)

Policy: The GS shall notify the regional guardianship attorney of an existing medical Power of Attorney (POA) at the time of the guardianship and shall continue to make all health care decisions until a court addresses the continued authority of the existing medical POA.

Required Procedures – The GS:

• determines whether a ward has a medical POA, and:
  • notifies the regional guardianship attorney to file a motion with the probate court asking for a determination of suspension or revocation of a medical POA currently in effect;
  • complies with the medical POA and the Health & Safety Code, Chapter 166, if the court orders the POA remain in effect;
  • consults with his or her supervisor and the regional guardianship attorney, as needed, to determine which medical decisions should be made by the POA and which decisions should be made by DADS guardianship staff; and
• documents all consultations, notifications and decisions in the GOLD case record.

Discussion and Relevant Information. H&SC §166.156 requires the guardian to file a motion with the probate court, which will determine whether to suspend or revoke the authority of the agent named in the medical POA. If the authority is suspended or revoked, DADS makes the medical decisions as guardian of the person.

If the court determines the POA will remain in effect, the agent named in the POA, rather than DADS, makes medical decisions according to the terms of the medical POA document and H&SC Subchapter D. The guardianship of the person is then a limited guardianship and the guardianship order should reflect this arrangement.

The law does not give the POA the authority to make decisions concerning electro-convulsive treatment, therefore, DADS makes this decision according to program policy and H&SC requirements.

References:
Section 3330, Advance Directives
H&SC §166.156
H&SC, Chapter 166, Subchapter D, Medical Power of Attorney

3360  Other Treatments

3361  Mental Health Treatment

Policy: The GS shall determine whether a ward has previously executed a declaration for mental health treatment and, if so, shall notify all health care professionals, treatment centers and placement facilities a valid declaration has been executed.

Required Procedures – The GS:

• interviews the ward and those individuals who are familiar with the ward seeking to determine if the ward has an executed declaration for mental health treatment;
• looks through documents in the ward's possession to see if the document can be located and, if one is located, furnishes it to the regional guardianship attorney in order to validate the declaration;
• files the document in the case record under the legal tab;
• instructs the attending physician and health care providers to contact the GS in the event the ward indicates he or she wishes to revoke the declaration;
• consults with the supervisor and the regional guardianship attorney and follows their directions if the physician is unwilling to comply with the declaration;
• considers the ward's previously expressed treatment preferences when making decisions regarding the ward's mental health treatment, if the declaration is found to be valid or has expired;
• if the ward revokes the declaration, the GS:
  • ensures the revocation is documented in the ward's medical and facility file; and
  • ensures the revocation was furnished to any other health care professional, treatment facility or other residential facility involved in the ward's daily care;
• documents all activities related to the declaration including notification to health care providers in the GOLD case record;
• consults with the supervisor, and if appropriate, seeks other suitable health care resources if he or she is notified by a physician of the physician's plans to disregard the declaration; and
• consults with the attending physician, the guardianship supervisor, and the regional guardianship attorney (if appropriate) if he or she is notified by anyone (e.g., the attending physician or health care provider) the ward is considering revoking the declaration.

Discussion and Relevant Information. A person with a history of mental illness may choose to specify his or her treatment preferences before the need for treatment arises. During a period in which he or she is not incapacitated, the person may execute a declaration for mental health treatment. The person referred to as the 'principal' includes in the declaration for mental health treatment his or her consent or refusal for the treatment with psychoactive medication, convulsive treatment, and preferences for restraint, seclusion, or medication in an emergency. The declaration does not limit authority provided by Chapters 573 or 574 of the H&SC to take a person into custody or to admit or retain a person in a mental health treatment facility.

An attempt by a ward to revoke the declaration raises questions regarding his or her current capacity. The GS and the supervisor may wish to take additional actions before a revocation can occur including seeking a referral to another physician or health care provider. A declaration for mental health treatment is revoked by:

• notification at any time by the principal, when competent, to a licensed or certified health or residential care provider;
• notification of the principal demonstrating a specific intent to revoke the declaration; or
• execution by the principal of a later declaration for mental health treatment.

When informed of or provided with a revocation of a declaration for mental health treatment, the principal's health or residential care provider should immediately record the revocation in the principal's medical record and notify any other health or residential care providers known to be responsible for the ward's care. The GS routinely checks to see if the care provider recorded the revocation.

A physician or other health care provider may subject persons to mental health treatment in a manner contrary to their wishes as expressed in a declaration for mental health treatment only:

• if the principal is under an order for temporary or extended mental health services under H&SC §§ 574.034 or 574.035, and treatment is authorized in compliance with H&SC §574.016; or
• in case of an emergency when the principal's instructions have not been effective in avoiding the emergency.

If the attending physician or health care provider is unwilling at any time to comply with the declaration, he or she may withdraw from providing treatment and must promptly:

• notify the patient or his or her guardian of such action; and
• document the notification in the medical record.

Convulsive or Electro-Convulsive Treatment. The treating physician or health care provider can never disregard the refusal of electro-convulsive or other convulsive treatment documented in a declaration for mental health treatment.

References:
Civil Practices and Remedies Code §137.00193
H&SC §§ 574.016, 574.034 and 574.035
H&SC , Chapters 573 or 574

3362  Electro-Convulsive Treatment (ECT)

Policy: The GS shall adhere to program guidelines and applicable legal provisions when addressing consent to electro-convulsive treatment (ECT) on behalf of a ward.

Required Procedures – The GS:

• considers whether ECT appears to be in the ward's best interests and his or her wishes are unknown and cannot be ascertained or the ward is known to agree with it;
• obtains the written recommendation of the physician, consults with the supervisor and consults with the regional guardianship attorney, unless the supervisor prefers to do so; and
• seeks court approval according to procedures outlined in Section 3320, Court Approval Required by DADS for Medical Interventions, before consenting to the ECT.

Discussion and Relevant Information. Health & Safety Code (H&SC) §578.002(c) permits the guardian to consent to ECT only if the ward agrees or the wards wishes are unknown and cannot be ascertained. If the ward is known to have been against ECT in the past or currently opposes it, the guardian cannot give consent to the administration of ECT.

References:
Section 3320, Court Approval Required by DADS for Medical Interventions
H&SC 578.002(c)

3370  Applying for Out-Patient Services for Persons with Intellectual Disability

Policy: The GS shall apply for out-patient services for persons with intellectual disability, as necessary for the maintenance and well-being of the ward.

Required Procedures – The GS:

• considers the current needs of the ward and any needs previously documented in the ward's service plan;
• identifies resources and service providers which may be able to provide the services, programs or placements necessary for the ward; and
• contacts, plans and coordinates with the service provider to ensure appropriate services are provided for identified needs.

Discussion and Relevant Information. H&SC §593.021 permits the guardian to apply for services for persons with intellectual disability through DADS. Services for persons with intellectual disability include programs and assistance as defined in H&SC §591.003(14). They include, but are not limited to, the following:

• a determination of mental retardation (DMR);
• recommendations of an interdisciplinary team;
• education and special training; and
• supervision, care, treatment, rehabilitation, and residential care.

The GS may apply for the following outpatient services for persons with intellectual disability:

Voluntary Services for Persons with Intellectual Disability. "DADS local authority or community center will develop a plan, with the participation of the guardian, for appropriate programs or placement in programs or facilities approved or operated by DADS." (H&SC §593.022).

Emergency Services. "A person may receive emergency services without a determination of mental retardation if:

• there is pervasive evidence the person is a person with intellectual disability;
• emergency services are available; and
• the person has an urgent need for emergency services."

"A determination of mental retardation and an interdisciplinary team recommendation for the person admitted under this section shall be performed within 30 days after the date of admission." (H&SC §593.0275).

References:
H&SC §§591.003(14), 593.0275, 593.021, and 593.022

3371  In-Patient Services for Persons with Intellectual Disability

Policy: The GS shall consult with the supervisor and regional guardianship attorney before applying for in-patient services for persons with intellectual disability on behalf of a ward.

Required Procedures – The GS:

• provides the guardianship supervisor, the ROM, the SD, and the regional guardianship attorney with complete details as to the nature of the proposed in-patient services for persons with intellectual disability;
• applies for in-patient services for persons with intellectual disability only after receiving written authorization from the guardianship supervisor, the ROM, or the SD;
• contacts the local authority to identify and coordinate resources, as applicable; and
• documents all consultations and notifications in the GOLD case record.

Discussion and Relevant Information. The Probate Code and the Health & Safety Code allow for placement in or services from a residential facility without a commitment. Emergency admission and respite care are examples in which this can occur.

Emergency Admission. "An emergency admission to a residential care facility is permitted without a determination of mental retardation and an interdisciplinary team recommendation if:

• there is pervasive evidence the proposed resident is a person with intellectual disability;
• space is available at the facility for which placement is requested;
• the proposed resident has an urgent need for services which the facility superintendent determines the facility provides; and
• the facility can provide relief for the urgent need within a year after admission.

A determination of mental retardation and an interdisciplinary team recommendation for the person under this section shall be performed within 30 days after the date of admission." (H&SC § 593.027)

Respite Care. "A person may be admitted to a residential care facility for respite care without a determination of mental retardation and interdisciplinary team recommendation if:

• there is pervasive evidence the proposed resident is a person with intellectual disability;
• space is available at the facility for which care is requested;
• the facility superintendent determines the facility provides services which meet the needs of the proposed resident; and
• the proposed resident or the proposed resident's family urgently requires assistance or relief which can be provided within a period not to exceed 30 consecutive days after the date of admission." (H&SC § 593.028)

References:
Health & Safety Code §§ 593.027 and 593.028

3380  Other Issues

3381  Court Approval Required by Law

Policy: The GS shall obtain a court order before performing certain health care interventions on the ward's behalf.

Required Procedures – The GS:

• consults with the supervisor, and the regional guardianship attorney, unless the supervisor prefers to do so, regarding the need for court-ordered mental health treatment or services for persons with intellectual disability or organ donation from a living ward; and
• seeks through the local mental health or local authority and the county a court order from the court with jurisdiction over such commitments, before placing a ward in a public or private in-patient facility or residential facility operated or licensed by DSHS (i.e., state hospital, private mental hospital) or DADS (i.e., state supported living center), when appropriate, except for situations provided by law; or
• obtains a court order before consenting to organ donation from a living ward; and
• documents all consultations, authorizations and orders and attaches a copy of the court order to the GOLD case record.

Discussion and Relevant Information. A signed court order from the appropriate court must be obtained before proceeding with the actions listed above. None of the interventions above may be granted solely by authority of the guardian.

References: N/A

3382  Psychoactive Medications

Policy: The GS shall consider consenting to administration of psychoactive medication on behalf of a ward in a court-ordered setting when such consent is in the best interest of the ward.

Required Procedures – The GS:

• consults with professionals providing treatment to a ward by use of psychoactive medication in a court-ordered mental health setting;
• determines the ward's preferences regarding the use of the medication including any refusal by the ward to take the medication;
• gives consent for the administration of the medication when it is in the ward's best interest even when doing so is against the ward's wishes; and
• documents all consultations and decisions in the GOLD case record.

Discussion and Relevant Information. H&SC §574.103 (b) states in pertinent part, "A person may not administer a psychoactive medication to a patient who refuses to take the medication unless: (1) the patient is having a medication-related emergency; (2) the patient is under an order issued under Section 574.106 authorizing the administration of the medication regardless of the patient's refusal; or (3) the patient is a ward who is 18 years of age or older and the guardian of the person consents to the administration of psychoactive medication regardless of the ward's expressed preferences regarding treatment with psychoactive medication."

If a psychoactive medication has been prescribed for a ward under a commitment, the GS may give written consent to the administration of the medication even if the ward refuses to take the medication.

A guardian may also consent to the administration of psychoactive medications in other settings, such as in a group home, nursing facility, or other residential facility. The GS follows procedures within Section 3311, Criteria for Making Medical Decisions, in those situations.

References:
Section 3311, Criteria for Making Medical Decisions
H&SC §§ 574.103(b) and 574.106

3383  Use of Restraints on Wards

Policy: The GS shall ensure compliance with the regulations of the specific facility and follow program procedures outlined below in circumstances involving the use of restraints on a ward.

Required Procedures – The GS:

• gathers relevant information when presented with circumstances calling for the use of restraints including:
  • factual descriptions of ward's behavior including frequency and seriousness of the behavior;
  • use of less restrictive methods pursued in order to control the behavior and their level of effectiveness, if any;
  • details regarding the specific restraint to be used including any related procedures to be performed and precautions to be taken;
  • intended outcomes of the use of the restraint; and
  • a listing of staff designated to administer the restraint;
• consults with the guardianship supervisor and receives his or her approval prior to issuing the consent;
• gives the consent to the requester (i.e., facility, caregiver, etc.) after supervisory approval is received;
• documents the supervisory approval and the consent in the GOLD case record;
• enters information in the GOLD case record in service plan notes (case notes) to indicate the use of restraint in the care of the ward; and
• monitors the appropriateness of continued use of the restraint and ensures the restraint is applied consistent with facility regulations in subsequent monthly status visits or more frequent visits, if necessary.

Discussion and Relevant Information. Specific rules and procedures govern the use of restraints in particular settings (i.e., ICF-IDs, nursing facilities, etc.). The GS should become familiar with applicable regulations of a facility when the use of restraints on a ward is likely or becomes necessary. A copy of those regulations may be requested from the facility.

References:
40 TAC § 19.601 and § 90.42
H&SC Chapter 322

3384  Medical Interventions Prohibited by Law – General Information.

State law prohibits certain procedures under certain conditions. Neither the court nor the guardian can consent to these procedures, which include, but are not limited, to the following:

• surgical sterilization for birth control purposes;
• abortion for birth control purposes against the wishes of the ward;
• electro-convulsive treatment (ECT) against the wishes of the ward (with the ward's consent, ECT can be administered with approval from the court); and
• medical intervention for a ward whose religious beliefs prohibit such treatment.

3385  Surgical Sterilization for Birth Control Purposes

Policy: The GS shall consent to medical treatment which results in sterilization if it is the recognized and recommended treatment for the underlying condition only after obtaining supervisory approval.

Required Procedures – The GS:

• follows applicable statutes;
• consents to a partial or complete hysterectomy without court approval if partial or full hysterectomy is the medically established method of treatment for a medical problem (e.g., endometriosis, uterine cancer, etc.);
• ensures the criteria for making medical decisions is followed as well as any requirements to consult with the supervisor, when authorizing the treatment;
• consults with the supervisor and the regional guardianship attorney if a physician recommends surgical sterilization because pregnancy could be life threatening due to the ward's medical condition (e.g., severe diabetes, kidney disease, etc.); and
• documents all consultations, decisions and authorizations in the GOLD case record.

Required Procedures – The supervisor:

• uses professional judgment on a case-by-case basis to determine if approval from the state office program staff is required.

Discussion and Relevant Information. There is no legal authority in Texas law for either the guardian or the judge to consent to surgical sterilization (for example, tubal ligation) for birth control purposes. According to federal regulations, Medicaid funds cannot be used to pay for the sterilization of any individual who:

• is less than 21 years old; or
• has been declared mentally incompetent by a federal, state, or local court of competent jurisdiction, unless the individual has been declared competent for purposes, which include the ability to consent to sterilization.

References:
42 Code of Federal Regulations (C.F.R.) §§ 441.251 and 441.253

3386  Abortion for Birth Control Purposes

Policy: The GS shall consult with the supervisor, the regional guardianship attorney and state office program staff when addressing a ward's wishes to have an abortion for birth control purposes.

Required Procedures – The GS:

• gathers specific information related to the ward's wishes;
• consults with his or her supervisor and others in the chain of command; and
• documents the consultations, decisions and actions in the GOLD case record.

Discussion and Relevant Information. State law prohibits the guardian from consenting to an abortion against the wishes of the ward. The GS gathers relevant information regarding the ward's wishes and provides it to his or her chain of command. These cases are decided on a case-by-case basis.

References: N/A

3387  Religious Beliefs Forbid Treatment

Policy: The GS shall comply with applicable laws if a ward objects to medical treatment based on his or her religious beliefs.

Required Procedures – The GS:

• confirms the ward was a member of the religious group prior to the appointment of a guardian and verifies the group prohibits a particular treatment;
• does not authorize the treatment and consults with the supervisor, the regional guardianship attorney, and state office program staff prior to making the final decision;
• notifies the court in writing of the decision and attaches a copy of the notification to the GOLD case record; and
• documents consultations, actions and decisions in the GOLD case record.

Discussion and Relevant Information. Human Resources Code (HRC) § 48.207 prohibits the authorization or requiring of any medical treatment of a person who objects on the grounds he or she is an adherent or member of a recognized church or religious denomination the tenets and practice of which may include reliance solely upon spiritual means through prayer for healing (e.g., blood for a Jehovah's Witness, medical treatment for a Christian Scientist, etc.).

References:
HRC §48.207

3410  Final Duties of Guardian of Person

Policy: The GS shall ensure required procedures are followed in the event the guardianship of person is to be terminated due to death of the ward or restoration of a ward's capacity.

Required Procedures – The GS:

Death of Ward

• no later than the next working day after the death of a ward, notifies:
  • his or her supervisor;
  • the court:
    • either verbally, in which case a follow-up Notice of Death of Ward form (Form 5043) is furnished to the court; or
    • in writing, by submitting Form 5043, Notice of Death of Ward form, to the court; and
  • the ward's family (if applicable of the ward's death);
• ensures funeral arrangements are made, accesses the burial policy, if available and authorizes the expenditure of funds not subject to court control for burial expenses;
• notifies life insurance companies of the ward's death (Section 4272, Life Insurance Policies) enclosing a copy of the death certificate or if there was a beneficiary may ask the beneficiary to do so;
• files a Final Report of the Person and the Application to Close the guardianship of the person within 60 days of the date of death;
• distributes the property as outlined in Section 3450, Distribution of Personal Property;
• ensures all requirements set forth in Section 4000, Estate and Other Financial Administration, are followed if DADS is also guardian of the estate;
• obtains a copy of the order signed by the judge discharging DADS as guardian;
• completes the documentation in the GOLD case record including closing the guardianship, notifications to insurance companies, distribution of property; and
• scans and attaches legal documents, notifications, receipts, correspondence and other such documents to the GOLD case record.

Restoration of Capacity

• files a Final Report of the Person and the Application to Close the guardianship of the person within 60 days of the date of the ward’s restoration of capacity;
• delivers the property to the ward as outlined in Section 3450, Distribution of Personal Property;
• ensures all requirements set forth in Section 4000, Estate and Other Financial Administration, are followed, if DADS is also guardian of the estate;
• obtains a copy of the order signed by the judge discharging DADS as guardian;
• completes the documentation in GOLD including closing the guardianship; and
• scans and attaches the legal documents, receipts, correspondence and related documents to the GOLD case record.

Discussion and Relevant Information. In the event the ward is indigent at the time of death, state law requires the county furnish sufficient funding to pay for the ward's final arrangements.

When providing Form 5043, Notice of Death of Ward, to the court, the GS may complete, sign and submit the form without the need for signature by the regional guardianship attorney. However, a copy of the notice is to be furnished to the regional guardianship attorney.

If a beneficiary was named in a life insurance policy, the funds provided by the policy will pass with no court involvement directly to the beneficiary and are not available for burial funds. However, the beneficiary may consent to provide those funds for burial.

Capacity may be restored due to a significant change in the ward's condition or circumstances which upon assessment appear to have permanently resolved the problem.

References:
Section 4272, Life Insurance Policies
Section 3440, Funeral Arrangements
Section 3450, Distribution of Personal Property
Section 4000, Estate and Other Financial Administration
H&SC §694.002
Notice of Death of Ward Form, Form 5043

3420  Successor Guardian

Policy: The GS shall notify the court of a possible successor guardian and shall work to effect the smooth transition of guardianship from DADS to the successor guardian.

Required Procedures – The GS:

• consults with the supervisor regarding a possible successor guardian;
• notifies the court a successor guardian is available and willing to serve (e.g. a family member, friend, other interested party or guardianship program) and informs the court of the results of the interviews;
• if the court determines the proposed successor guardian is qualified to serve as the successor guardian of the ward, the court may either ask DADS to file the motion to appoint the individual as the successor guardian or may, on its own motion, file an application to appoint the individual as the ward's successor guardian; and
• if the court asks DADS to file the motion, the GS:
  • notifies the supervisor;
  • approaches the regional guardianship attorney, if directed to do so by his or her supervisor, about filing a motion for DADS to resign as guardian and for the family member, friend, or other interested party or guardianship program to be appointed as successor guardian;
• notifies the supervisor within 10 calendar days of being notified or discovery of information indicating the successor guardian has qualified; and
• documents notifications and consultations in the GOLD case record.

Successor Guardian of Person:

• seeks a meeting with the successor guardian to formally review, inspect and transfer assets and property:
  • completes the Property Acknowledgment and Property Review and Condition Checklist and notes the property condition including any existing damage and/or repairs needed or concerns; and
  • obtains or seeks a signature of the successor guardian verifying the transfer meeting took place, the receipt of property, and the condition of the property;
• delivers the ward's property to the successor guardian and obtains a receipt upon qualification of a successor guardian;
• files the application to discharge the guardian once the final report has been approved by the court;
• continues to perform duties of guardian including making monthly status contacts (MSCs), notifications to the court when there are changes affecting the ward, and making medical decisions until DADS is discharged as guardian. Notifications to the court will be documented in GOLD;
• attaches copies of order appointing a successor guardian, the oath of the successor guardian and the copy of the letter of guardianship for the successor guardian to the GOLD case record;
• notifies the supervisor within 10 calendar days of being notified or discovery of information indicating a successor guardian has qualified;
• notifies the Oversight and Community Support Unit (OCS) when a contract provider qualifies as successor guardian;
• completes documentation in the GOLD case record of case actions regarding successor guardianship and status of DADS discharge including those activities required to close the guardianship in GOLD; and
• attaches a copy of the Property Acknowledgment and Property Review and Condition Checklist to the GOLD case record.

Successor Guardian of the Estate:

• seeks a meeting with the successor GOE to formally review, inspect and transfer assets and property:
  • completes the Property Acknowledgment and Property Review and Condition Checklist and notes the property condition including any existing damage and/or repairs needed or concerns; and
  • obtains or seeks a signature of the successor GOE verifying the transfer meeting took place, the receipt of property, and the condition of the property;
• cooperates with the successor guardian to ensure they have access to the ward's personal and real property including bank accounts;
• assists, if needed, for a short term emergency when the successor guardian and the court do not object, with paying the ward's bills until the successor guardian has taken possession of the ward's bank accounts;
• continues to perform duties of guardian including but not limited to making MSCs and notifications to the court until DADS is discharged as guardian;
• maintains possession of the checkbooks and check registers;
• supplies copies of the check registers to the successor guardian upon request;
• attaches a copy of the Property Acknowledgment and Property Review and Condition Checklist to the GOLD case record;
• notifies the supervisor within 10 calendar days of being notified or discovery of information indicating a successor guardian has qualified; and
• documents all actions and requests in the GOLD case record.

Discussion and Relevant Information. If a governmental entity or a guardianship program serving as guardian for a ward becomes aware of a family member or friend of the ward or other interested party who is willing and able to serve as the ward's successor guardian, Probate Code §695A requires the governmental agency or guardianship program to notify the court. HRC §161.108 further requires DADS to review its guardianships annually for a more suitable guardian and to notify the court if it becomes aware of an individual or guardianship program qualified and willing to serve as guardian.

Qualification of the successor guardian should be determined by obtaining the following from the successor guardian:

• copy of the order appointing successor guardian;
• copy of the oath of successor guardian; and
• copy of the letter of guardianship.

Information regarding the successor guardian is entered in the GOLD case record to reflect the change in guardian from DADS to the successor guardian.

References:
Section 3110, Annual Review of Guardianship of Person
Section 5890, Account for Final Settlement
Probate Code §695A (b) and (c)
HRC §161.108
Property Acknowledgment, Form 5036
Property Review and Condition Checklist, Form 5024

3430  Wills

Policy: The GS shall deposit the original will with the county clerk in the county of the ward's residence and keep a copy of the will in the case file.

Required Procedures – The GS:

• scans and attaches a copy of the will to the GOLD case record and places a copy in the ward's paper case file;
• deposits an original will with the county clerk in the county of the ward's residence:
  • places the will in an envelope in accordance with Probate Code §71;
  • lists DADS as the name of those entitled to access the will;
  • obtains a certificate of receipt for the deposit of the will; and
  • consults with the regional guardianship attorney on this process as needed;
• documents in the GOLD case record all attempts to deposit the original will with the county clerk if the clerk refuses to accept the will; and
• upon the death of the ward, the GS:
  • notifies the county clerk who has the original will on deposit of the death of the ward;
  • gives an original will signed by the ward and still in the GS' possession to the county clerk in the county with the court having jurisdiction of the decedent's estate (usually the county of the ward's residence) and notifies the court with jurisdiction over the decedent's estate, if DADS is guardian of both person and estate;
  • informs the court with jurisdiction over the decedent's estate of the existence of the will and identifies the person in possession of the will, if the ward has a will and the original document is in the possession of another person;
  • makes reasonable efforts, unless his or her supervisor does so, to notify the executor of the ward's death, if the ward has a will;
  • consults with the regional guardianship attorney on this process; and
• documents all consultations, notifications and actions in the GOLD case record.

Discussion and Relevant Information. DADS honors the intent regarding property of a will made prior to DADS guardianship as best as circumstances permit for the present needs of a living ward. If a will is discovered prior to the liquidation of a ward's assets, the GS should staff the situation with the supervisor and the regional guardianship attorney prior to taking action to dispose of or transfer property.

DADS as guardian makes every attempt to deposit an original will with the county clerk or deliver it to the executor while the ward is alive. If not previously deposited, upon the death of a ward, the GS delivers the original will to the county clerk in the county of the ward's residence.

Additional information regarding the filing of wills for safekeeping is available at the following link: www.courts.state.tx.us/pubs/Manuals/cclerk/ch5.pdf.

References:
Probate Code §§71 and 75

3440  Funeral Arrangements

Policy: The GS shall ensure funeral arrangements are made in a manner consistent with the ward's wishes (to the degree possible) and makes payment for those funeral arrangements using the ward's or community resources whichever are applicable.

Required Procedures – The GS:

• invites and encourages interested family members to help plan the funeral or to make the funeral arrangements;
• seeks a source of payment for the ward's funeral expenses from one or more of the following:
  • pre-need burial policy, if the ward has one;
  • funds from the ward's estate;
  • Veteran's Administration (provides markers, burial plots, and flags for coffins for qualified veterans);
  • local Veterans of Foreign Wards (VFW) groups (may provide "Taps" musical accompaniment for funerals);
  • donations or reduced fees; or
  • county funds; and
• documents all consultations, actions and decisions in the GOLD case record.

Court Approval. Generally a court will approve expenditures of funds from the deceased ward's estate to make funeral arrangements. DADS policy regarding application to the court to expend funds for funeral arrangements is as follows:

Required Procedures – The GS:

• does not need to obtain prior approval from the judge to make funeral arrangements, if the ward has a pre-need policy;
• must receive prior verbal approval from his or her supervisor and the court prior to the expenditure of funds for the funeral, if the ward does not have a pre-need burial policy;
• must be aware of and follow the court's requirements;
• after receiving prior verbal supervisory and court approval for expenditure of funds from the ward's estate, submits a Motion to Ratify Expenditure of Funds to the regional guardianship attorney before submitting it to the court for approval, if the ward does not have a pre-need burial policy and DADS is guardian of person and estate; and
• documents all approvals, consultations and actions and attaches all motions and other legal documents to the GOLD case record.

Discussion and Relevant Information. Even if an executor has been named in the will, there will be insufficient time once the executor is appointed for the executor to make funeral arrangements. Guardianship program funds may not be used to pay for funeral expenses of a deceased ward. If DADS is not guardian of the estate, a Motion to Expend Funds is not submitted to the court.

References:
Section 3410, Final Duties of Guardian of Person
H&SC §694.002
HRC §161.107(e)
Probate Code §746

3450  Distribution of Personal Property

Policy: The GS shall obtain court approval to distribute personal property of the ward upon the death of the ward, when a successor guardian is appointed by the court, or upon the restoration of a ward's capacity.

Required Procedures – The GS:

• consults with the supervisor about the distribution of the personal property;
• obtains court approval in the final report of the person and follows the direction of the court in the distribution of the property;
• obtains a receipt for the delivered property;
• files an application to close the guardianship with the receipts;
• follows the guidelines set forth in Table 3000-6, Distribution of Personal Property, and documents all actions in GOLD; and
• documents all consultations, decisions and actions in the GOLD case record.

Table 3000-6, Distribution of Personal Property

Discussion and Relevant Information. Supervisor consultation and the assistance of the guardianship attorney are especially important in cases with personal effects of unusual value or with discord among family members. If a ward has only personal property and there are no individuals appropriate to get the items, the guardianship staff may choose to donate any usable items to either a facility or to a charitable organization.

References:
Section 4720, Distribution of Property
Section 5890, Account for Final Settlement
Probate Code §695A (a-1)
Receipts and Release, Form 5188