Texas Guardianship Certification Board (GCB)

The 79th Texas Legislature created the Guardianship Certification Board (Board) to establish a certification process for individuals, other than volunteers, who act as private professional guardians or provide guardianship services to a ward of a guardianship program or to wards of the Department of Aging and Disability Services. The Board determines the qualifications for obtaining certification, issue certificates to those who meet the requirements, and adopt minimum standards for guardianship services or other similar but less restrictive types of assistance or services. For more information about the Boardâ€™s statutory powers and duties, please review Texas Government Code, Chapter 111.

Rules, Minimum Standards, and Policies

On December 12, 2006 the Texas Supreme Court approved the Guardianship Certification Rules and Fees, which are now final. Rules [pdf]

On October 21, 2006, the Board approved Minimum Standards for Guardianship Services. On January 19th, 2007, the Board amended the Preamble for the Minimum Standards. Minimum Standards [pdf]

Statutory Authority

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Summary of SB6 Guardianship Provisions

Effective 9/1/05
Summarized by Steven D. Fields, President, Texas Guardianship Association

GUARDIANSHIP CERTIFICATION BOARD

Composed of 11 members appointed by the Supreme Court and 4 public members appointed by the Supreme Court from a list of nominees submitted by the Governor;
The 11 non-public members shall be appointed from different geographical areas of the state and must have demonstrated experience working with: a guardianship program; incapacitated individuals; an organization that advocates on behalf of elderly individuals; and organization that advocates on behalf of individuals with mental illness or physical disability;
The 4 public members must be caretakers of individuals with mental illness, mental retardation or physical disabilities, or persons who advocate on behalf of individuals with mental illness, mental retardation or physical disabilities;
The 4 public members or their spouses may not: be certified by the board; licensed by a regulatory agency in the field of guardianship; employed by, own or manage an agency funded by OCA;
Board members or their spouses may not be an officer of a trade association in the field of guardianship or be registered lobbyists;
Board members are not entitled to receive compensation or reimbursement for expenses;
Board members serve staggered six-year terms with one-third of the members expiring on 2/1 of each odd-numbered year, provided that for the SCâ€™s initial 11 appointments shall designate 3 members for terms expiring on 2/1/07; 4 members for terms expiring 2/1/09; and 4 members for terms expiring 2/1/11;
The Board shall meet at least quarterly and any action of the board must be approved by majority vote;
The Board is administratively attached to the Office of Court Administration which shall provide administrative assistance, services, budget planning, purchasing, salary and benefits and travel for executive director, and computer equipment;
Board members may be removed from the board if they are absent from more than half of the regularly scheduled board meetings during a calendar year without an excuse approved by majority vote of the board;
Board members must attend a training program which provides them with information regarding these new laws, the role and function of the board, the current budget of the board, the results of the most recent audit of the board, and ethics policies adopted by the board;
The Board shall provide the public with a reasonable opportunity to appear before the board and speak and OCA shall research technical solutions to ensure that the public is able to easily find information about the Board on the internet and interact with the board via the internet;
The Board shall develop and recommend proposed rules and procedures to implement this chapter; set certification fees subject to SC approval; establish qualifications for obtaining certification and recertification; maintain complete records of board proceedings; and keep complete records of each certification issued, renewed, suspended or revoked;
The administrative director of OCA shall employ a director for the Board from a list of candidates submitted by the Board and the Board shall develop a division of duties of the director as opposed to those duties of the Board;
The Board shall adopt minimum standards for the provision of guardianship services or other similar but less restrictive types of assistance by guardianship programs; private professional guardians; and the provision of guardianship services by DADS;
The Board shall develop an application form for certification of private professional guardians; guardians employed by DADS; and guardians employed by guardianship programs;
The Board shall set a nonrefundable application fee subject to SC approval which is to be paid by all certified guardians except those employed by DADS and is deposited into the guardianship certification account in the general revenue fund to be appropriated to OCA for administration of this chapter;
Not later than 3/1/06, the Board shall submit, for adoption by the Supreme Court, rules and procedures for issuing a certificate and for renewing, suspending, or revoking a certificate of a guardian, and these rules must ensure compliance with minimum standards; provide that the Board establish qualifications for obtaining and maintaining certification; provide that the Board issue certificates; prescribe procedures for accepting complaints and conducting investigations of alleged violations of minimum standards; and provide procedures by which the Board may suspend or revoke the certificate of a guardian who fails to comply with appropriate standards;
If the requirements for issuing a certificate include passing an exam, the board shall develop and the director shall administer the exam, or the board shall direct the director to contract with another person or entity to develop and administer the exam;
In lieu of certification requirements of this chapter, the Board may issue a certificate to a guardian if the guardian submits an application, pays a fee, and is certified as a guardian by a national organization or association the board determines has requirements at least as stringent as those prescribed by the board and is in good standing with the national organization or association;
The director of the Board may require private professional guardians to submit necessary information for the Board to monitor compliance with minimum standards and shall review annual disclosures from guardianship programs; and
The Texas Department of Licensing and Regulation shall advise and assist the board as necessary in administering the certification process established under this chapter.

Department of Family and Protective Services

Shall refer age 16 or older incapacitated minors in DFPS conservatorship to DADS for guardianship services;
Shall refer elderly or disabled persons who DFPS believes to be incapacitated and who are found by DFPS to be in state of abuse, neglect or exploitation to DADS for guardianship assessment;
Shall refer incapacitated minors or incapacitated elderly or disabled persons to appropriate and available less restrictive alternative service providers, if available, as alternative to referring them to DADS;
Shall enter into memorandum of understanding with DADS detailing roles and duties of each agency regarding referrals for guardianship services and provision of guardianship services;
If requested by a court, DFPS may also notify the court of any individuals who may be appropriate for a court initiated guardianship proceeding under Section 683, Texas Probate Code (TPC) and may provide the court with all relevant information in DFPS records concerning the individuals;
Courts may not require DFPS to perform the duties of a guardian ad litem or to gather additional information not contained in DFPS records;
Courts may not appoint DFPS to serve as temporary or permanent guardian for any individual.
DADS will take the place of DFPS in all proceedings related to providing guardianship services for incapacitated persons without change in status and without application for appointment as successor guardian;
DADS will be the transferee of all money, contracts, rights and obligations of DFPS related to providing guardianship services for incapacitated persons and shall administer all contracts until they expire or are lawfully terminated;
Courts may not require DFPS and DADS to comply with the provisions concerning resignation of guardian and appointment of successor guardian and DADS is not required to take new Oaths on these cases; and
HHSC Executive Commissioner shall establish a plan for the transfer of guardianship cases of DFPS to DADS on or before the dated prescribed by the executive commissioner.

Department of Aging and Disability Services

Shall file an application under TPC 682 or TPC 875 to be appointed guardian or the person and/or estate of an incapacitated minor aging out of DFPS conservatorship (GS does not take effect until minorâ€™s 18^th birthday);
Shall conduct a thorough assessment of the conditions and circumstances of an elderly or disabled person referred by DFPS to determine whether a guardianship is appropriate for the individual (Rules by Exec. Comm.);
After assessment, DADS may pursue a less restrictive alternative to guardianship if available;
After assessment, DADS may file an application under TPC 682 or TPC 875 to be appointed as guardian of the person and/or estate of the individual;
Courts may not require DADS to file an application for guardianship;
Courts may not appoint DADS as permanent guardian for any individual unless DADS files an application to serve, or otherwise agrees to serve as the individualâ€™s guardian of the person and/or estate;
If DADS becomes aware of a local guardianship program, private professional guardian or other person who is willing and able to serve as guardian, DADS shall refer the individual to that person or program for guardianship services;
If requested by a court, DADS shall notify the court of a referral made to DADS by DFPS of a person who may be appropriate for a court initiated guardianship under TPC 683 and supply the court with all relevant information on the individual in DADSâ€™s records, but court cannot require DADS to perform duties of guardian ad litem or gather information not contained in DADSâ€™s records;
May contract with a political subdivision of TX, a local guardianship program, a private agency or another state agency for the provision of guardianship services;
Shall develop a Quality Assurance Program for guardianship services provided by or on behalf of the department;
Shall establish a Monitoring System as a part of the Quality Assurance Program to ensure the quality of guardianship services for which DADS contracts with other guardianship service providers;
A representative of DADS shall take the Oath as guardian on behalf of DADS;
DADS (or a political subdivision or state agency contractor) as guardian is not required to post a bond or pay any cost or fee associated with the filing of a guardianship application or with the guardianship proceeding or the appointment of an attorney ad litem or guardian ad litem;
DADS is not liable for its wardsâ€™ long term care expenses or burial expenses;
DADS shall conduct annual review of its cases to determine whether a more suitable person, including a local guardianship program or private professional guardian, is willing and able to serve as successor guardian, and if so, to notify the court under TPC 695A when applicable;
DADS shall have access to the records and documents concerning an individual referred for guardianship services including medical, psychological, educational and residential information;
DADS is exempt from payment of a fee otherwise authorized by law to obtain a medical record or mental health record if the request is made in the course of an assessment for guardianship services;
DADS may petition the proper court to obtain access to a necessary record or document it cannot otherwise obtain;
The prosecuting attorney representing the state in criminal cases in the county court shall represent DADS in a guardianship proceeding unless the representation would be a conflict of interest; or if prosecuting attorney is unable, the attorney general shall represent DADS; or, if the attorney general is unable, the AG shall deputize an attorney hired or under contract with DADS; or in Harris County, the County Attorney shall represent DADS;
All files, reports, records, communications or working papers used or developed by DADS in its assessment for or provision of guardianship services are confidential and not subject to disclosure under the Open Records Act and may be disclosed only as necessary to enable DADS to exercise its powers or duties as guardian;
A court may order disclosure of confidential information held by DADS only if a motion is filed with the court requesting release of the information; a hearing is held on the request; notice of the hearing is served on DADS; and the court determines after hearing and in camera review of the information that disclosure is essential to the administration of justice and will not endanger the life or safety of any individual who is assessed by DADS, is a ward of DADS, or provides services to a ward of DADS;
DADS shall establish policies and procedures for the exchange of confidential information with other state agencies, courts, local guardianship programs and other entities that provide services to DADSâ€™s wards, and exchange of information with such entities does not constitute a release for purposes of waiving the confidentiality of the information exchanged;
If a present or former employee of DADS guardianship program is criminally prosecuted for conducted related to his/her misfeasance or nonfeasance in the course and scope of employment and is found not guilty after trial or the complaint is dismissed without a guilty plea, DADS may indemnify the employee for reasonable attorneyâ€™s fees up to $10,000;
DADS guardianship employees and authorized volunteers are immune from civil or criminal liability for any act or omission that relates to the duty or responsibility if the person acted in good faith and within the scope of the personâ€™s authority.
DADS employees who provide guardianship services to DADSâ€™s wards must apply to be certified as guardians as provided by TPC 697B; must hold current certificates issued by the Guardianship Certification Board; but are exempt from payment of application fees for certification;
DADS employees who are or will be providing guardianship services to a DADSâ€™s ward must submit to criminal history checks by the clerks of the county which is appointing DADS as a guardian;
DADS shall annually submit to the county clerk of every county in which DADS is appointed to serve as a guardian for one of more wards a statement containing the name, address, phone number of each individual employed by or volunteering or contracting with DADS to provide guardianship services on DADSâ€™s behalf;
A court may not customarily or ordinarily appoint DADS as a temporary guardian and may only appoint DADS as a temporary guardian as a last resort;
The Guardianship Certification Board shall adopt minimum standards for the provision of guardianship services by DADS;
DADS will take the place of DFPS in all proceedings related to providing guardianship services for incapacitated persons without change in status and without application for appointment as successor guardian;
DADS will be the transferee of all money, contracts, rights and obligations of DFPS related to providing guardianship services for incapacitated persons and shall administer all contracts until they expire or are lawfully terminated;
Courts may not require DFPS and DADS to comply with the provisions concerning resignation of guardian and appointment of successor guardian and DADS is not required to take new Oaths on these cases; and
HHSC Executive Commissioner shall establish a plan for the transfer of guardianship cases of DFPS to DADS on or before the dated prescribed by the executive commissioner.

GUARDIANSHIP PROGRAMS

â€œGuardianship programâ€ is defined in Section 111.001(6) of the Government Code to mean a local, county, or regional program that provides guardianship and related services to an incapacitated person or other person who needs assistance in making decisions concerning the personâ€™s own welfare or financial affairs;
A guardianship program is not liable for civil damages arising out of an action or omission by a person while providing guardianship services to a ward on behalf of the guardianship program unless the action or omission was willfully wrongful; made with conscious indifference or reckless disregard for the safety of the incapacitated person or another; was made in bad faith or with malice; or was grossly negligent;
An individual employed by or contracting with a guardianship program must be certified as provided by TPC 697B to provide guardianship services to a ward of the guardianship program and must submit to criminal history checks by the county clerk in which the individual provides guardianship services;
An individual volunteering with a guardianship program is not required to be certified as provided by TPC 697B but must submit to criminal history checks by the clerk of the county in which he/she provides guardianship services;
Each guardianship program operating in a county shall submit annually to the county clerk a statement containing the name, address, phone number or each individual employed by or volunteering or contracting with the program to provide guardianship services to a ward or proposed ward of the program;
The Guardianship Certification Board shall adopt minimum standards for the provision of guardianship or other similar but less restrictive services by guardianship programs; and
Not later than 1/31 of each year, each guardianship program shall provide the Guardianship Certification Board a report for the previous year containing the number of wards served, the total amount of money received from the State and the total amount of money received from any other public source, including a county or the federal government, for the provision of guardianship services.

ALL GUARDIANS

Guardians of the person are entitled to take charge of the person of the ward and have the duty to provide supervision and protection for the ward, and no longer have the duty â€œto controlâ€ the ward.

PRIVATE PROFESSIONAL GUARDIANS

â€œPrivate professional guardianâ€ is now defined by Section 111.001(9) of the Government Code to mean a person, other than an attorney or corporate fiduciary, who is engaged in the business of providing guardianship services;
Permanent and temporary guardianship applications that request the appointment of a private professional guardian must allege that the private professional guardian is certified by the Guardianship Certification Board and has complied with the requirements of TPC 697;
A court may not appoint a private professional guardian who is not certified as provided in TPC 697;
Private professional guardians must apply annually with the clerk of the county having venue over a proceeding in which they are serving as guardian or are seeking to be appointed as guardian and must obtain a certificate of registration which application contains the information formerly required to obtain a certificate of certification;
Private professional guardians must be certified as provided under Section 111.042 of the Government Code and must submit to a criminal history check by the clerk of all counties in which they serve as guardian;
The Guardianship Certification Board shall adopt minimum standards for the provision of guardianship services or other similar but less restrictive types of assistance or services by private professional guardians; and
Not later than 1/31 of each year, each private professional guardian shall provide the Guardianship Certification Board a report for the previous year containing the number of wards served, the total amount of money received from the State and the total amount of money received from any other public source, including a county or the federal government, for the provision of guardianship services.

GUARDIANSHIP ADVISORY BOARD

With the advice of the Guardianship Advisory Board, HHSC shall develop and, subject to appropriations, implement a plan to ensure that each incapacitated individual in the state who needs a guardianship or another less restrictive type of assistance to make decisions concerning the incapacitated individualâ€™s own welfare and financial affairs receives that assistance and to foster the establishment and growth of local volunteer guardianship programs;
Shall advise HHSC in administering HHSCâ€™s duties under Chapter 531 of the Government Code;
Shall advise HHSC and DADS with respect to a statewide guardianship program and develop a proposal for a statewide guardianship program;
Shall review and comment on the guardianship policies of all health and human service agencies and recommend changes to the policies the advisory board considers necessary and advisable;
Shall no longer be charged with the development of minimum standards for private professional guardians and guardianship programs but shall annually review and comment on the minimum standards developed by the Guardianship Certification Board;
Shall prepare an annual report on the development of a statewide guardianship system and on the guardianship policies of such agencies and minimum standards and file the report with DADS, HHSC, the governor, the lieutenant governor, the speaker of the house by 12/15 of each year.

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