1. (a) The department shall file an application under Section 682 or 875, Texas Probate Code, to be appointed guardian of the person or estate, or both, of a minor referred to the department under Section 48.209(a)(1) for guardianship services if the department determines:

   1. (1) that the minor, because of a mental or physical condition, will be substantially unable to provide for the minor's own food, clothing, or shelter, to care for the minor's own physical health, or to manage the individual's own financial affairs when the minor becomes an adult; and
   2. (2) that a less restrictive alternative to guardianship is not available for the minor.
2. (b) The department shall conduct a thorough assessment of the conditions and circumstances of an elderly or disabled person referred to the department under Section 48.209(a)(2) for guardianship services to determine whether a guardianship is appropriate for the individual. In determining whether a guardianship is appropriate, the department may consider the resources and funds available to meet the needs of the elderly or disabled person. The executive commissioner shall adopt rules for the administration of this subsection.
3. (c) If after conducting an assessment of an elderly or disabled person under Subsection (b) the department determines that a guardianship is appropriate for the elderly or disabled person, the department shall file an application under Section 682 or 875, Texas Probate Code, to be appointed guardian of the person or estate, or both, of the individual. If after conducting the assessment the department determines that a less restrictive alternative to guardianship is available for the elderly or disabled person, the department shall pursue the less restrictive alternative instead of applying for appointment as the person's guardian.
4. (d) The department may not be required by a court to file an application for guardianship, and except as provided by Subsection (f) and Section 695(c), Texas Probate Code, the department may not be appointed as permanent guardian for any individual unless the department files an application to serve or otherwise agrees to serve as the individual's guardian of the person or estate, or both.
5. (e) A guardianship created for an individual as a result of an application for guardianship filed under Subsection (a) may not take effect before the individual's 18th birthday.
6. (f) On appointment by a probate court under Section 695(c), Texas Probate Code, the department shall serve as the successor guardian of the person or estate, or both, of a ward described by that section.

Added by Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 3.04, eff. September 1, 2005.

Acts 2009, 81st Leg., R.S., Ch. 726 (S.B. 271), Sec. 2, eff. June 19, 2009.