1. (a) The department shall refer an individual to the Department of Aging and Disability Services for guardianship services under Subchapter E, Chapter 161, if the individual is:

   1. (1) a minor in the conservatorship of the department who:

      1. (A) is 16 years of age or older; and
      2. (B) the department has reason to believe will, because of a physical or mental condition, be substantially unable to provide for the individual's own food, clothing, or shelter, to care for the individual's own physical health, or to manage the individual's own financial affairs when the individual becomes an adult; or

   2. (2) an elderly person or person with a disability who:

      1. (A) has been found by the department to be in a state of abuse, neglect, or exploitation; and
      2. (B) the department has reason to believe is an incapacitated person as defined by Section 1002.017(2), Estates Code.
2. (b) Notwithstanding Subsection (a), if a less restrictive alternative to guardianship is appropriate and available for the individual, the department shall pursue that alternative instead of making a referral to the Department of Aging and Disability Services for guardianship services.
3. (c) The department and the Department of Aging and Disability Services shall enter into a memorandum of understanding that sets forth in detail the roles and duties of each agency regarding the referral for guardianship services under Subsection (a) and the provision of guardianship services to individuals under Subchapter E, Chapter 161.

4. (d) Nothing in this section shall prohibit the department from also making a referral of an individual to a court having probate jurisdiction in the county where the individual is domiciled or found, if the court has requested the department to notify the court of any individuals who may be appropriate for a court-initiated guardianship proceeding under Chapter 1102, Estates Code. In making a referral under this subsection and if requested by the court, the department shall, to the extent allowed by law, provide the court with all relevant information in the department's records relating to the individual. The court, as part of this process, may not require the department to:

   1. (1) perform the duties of a guardian ad litem or court investigator as prescribed by Chapter 1102, Estates Code; or
   2. (2) gather additional information not contained in the department's records.
5. (e) The department may not be appointed to serve as temporary or permanent guardian for any individual.

Added by Acts 1995, 74th Leg., ch. 303, Sec. 4, eff. Sept. 1, 1995.

Amended by Acts 1995, 74th Leg., ch. 76, Sec. 8.042, eff. Sept. 1, 1995;

Acts 1995, 74th Leg., ch. 1039, Sec. 2, eff. Sept. 1, 1995;

Acts 1997, 75th Leg., ch. 1022, Sec. 52, 53, eff. Sept. 1, 1997. Renumbered from Sec. 48.0215 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 27, eff. Sept. 1, 1999.

Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 3.02, eff. September 1, 2005.

Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.277, eff. April 2, 2015.