I

103D CONGRESS

1ST SESSION H. R. 632

To amend title XIX of the Social Security Act to require States to adopt

and enforce certain guardianship laws providing protection and rights

to wards and individuals subject to guardianship proceedings as a condition of eligibility for receiving funds under the medicaid program, and

for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 26, 1993

Ms. SNOWE introduced the following bill; which was referred to the Committee

on Energy and Commerce

A BILL

To amend title XIX of the Social Security Act to require

States to adopt and enforce certain guardianship laws

providing protection and rights to wards and individuals

subject to guardianship proceedings as a condition of

eligibility for receiving funds under the medicaid program, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Guardianship Rights

5 and Responsibilities Act of 1993’’.
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1 SEC. 2. GUARDIANSHIP REQUIREMENTS FOR STATE MEDIC2 AID PLANS.

3 (a) GUARDIANSHIP REQUIREMENTS AS CONDITION

4 OF ELIGIBILITY.—Section 1902(a) of the Social Security

5 Act (42 U.S.C. 1396a(a)), as amended by the Omnibus

6 Budget Reconciliation Act of 1990 (hereafter referred to

7 as ‘‘OBRA–1990’’), is amended—

8 (1) by striking ‘‘and’’ at the end of paragraph

9 (54);

10 (2) in the paragraph (55) inserted by section

11 4602(a)(3) of OBRA–1990, by striking the period at

12 the end and inserting a semicolon;

13 (3) by redesignating the paragraph (55) in14 serted by section 4604(b)(3) of OBRA–1990 as

15 paragraph (56), by transferring and inserting it

16 after the paragraph (55) inserted by section

17 4602(a)(3) of such Act, and by striking the period

18 at the end and inserting a semicolon;

19 (4) by placing paragraphs (57) and (58), in20 serted by section 4751(a)(1)(C) of OBRA–1990, im21 mediately after paragraph (56), as redesignated by

22 subparagraph (C);

23 (5) in the paragraph (58) inserted by section

24 4751(a)(1)(C) of OBRA–1990, by striking the pe25 riod at the end and inserting a semicolon;
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1 (6) by redesignating the paragraph (58) in2 serted by section 4752(c)(1)(C) of OBRA–1990 as

3 paragraph (59), by transferring and inserting it

4 after the paragraph (58) inserted by section

5 4751(a)(1)(C) of such Act, and by striking the pe6 riod at the end and inserting ‘‘; and’’; and

7 (7) by inserting after paragraph (59), as so re8 designated, the following new paragraph:

9 ‘‘(60) not later than 2 years after the date of

10 the enactment of this paragraph, include assurances

11 that the State has adopted, and assumed responsibil12 ity for enforcing, laws relating to guardianship

13 which meet the requirements of section 1931.’’.

14 (b) REDUCTION OF PAYMENTS TO STATES FOR FAIL15 URE TO ADOPT AND ENFORCE CERTAIN LAWS RELATING

16 TO GUARDIANSHIP.—Section 1903 of the Social Security

17 Act (42 U.S.C. 1396(b)) is amended by adding at the end

18 the following new subsection:

19 ‘‘(x)(1) In order to receive payments under para20 graphs (2)(A) and (7) of subsection (a) without being sub21 ject to per centum reductions set forth in paragraph (2)

22 of this subsection, a State must provide that it has adopt23 ed, and assumed responsibility for enforcing, laws relating

24 to guardianship which meet the requirements of section
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1 1931 on or before the expiration of the 2-year period be2 ginning on the date of the enactment of this subsection.

3 ‘‘(2) If a State fails to meet the deadline established

4 under paragraph (1), the per centums specified in para5 graphs (2)(A) and (7) of subsection (a) with respect to

6 that State shall each be reduced 5 percentage points for

7 the first two quarters beginning on or after such deadline,

8 and shall be further reduced an additional 5 percentage

9 points after each period consisting of two quarters during

10 which the Secretary determines the State fails to meet the

11 requirements of paragraph (1) of this subsection, except

12 that—

13 ‘‘(A) neither such per centum may be reduced

14 more than 25 percentage points by reason of this

15 paragraph; and

16 ‘‘(B) no reduction shall be made under this

17 paragraph for any quarter following the quarter dur18 ing which such State meets the requirements of

19 paragraph (1).’’.

20 (c) DESCRIPTION OF REQUIREMENTS.—Title XIX of

21 the Social Security Act (42 U.S.C. 1396 et seq.) is amend22 ed by adding at the end the following new section:

23 ‘‘REQUIREMENTS FOR STATE GUARDIANSHIP LAWS

24 ‘‘SEC. 1931. (a) IN GENERAL.—For purposes of sec25 tions 1902(a)(60) and 1903(x), a State has adopted laws

26 relating to guardianship which meet the requirements of
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1 this section if the State has adopted laws or issued regula2 tions which include the rights, standards, and duties de3 scribed in subsections (b) through (l) or, in the determina4 tion of the Secretary, which protect individuals in the

5 State as effectively as laws or regulations which include

6 the rights, standards, and duties described in such sub7 sections.

8 ‘‘(b) RIGHTS OF INDIVIDUALS SUBJECT TO GUARD9 IANSHIP PETITIONS.—The laws of the State shall provide

10 that—

11 ‘‘(1) each individual in the State who is the

12 subject of a guardianship petition shall be provided

13 with an adequate and timely notice, in large print

14 and plain language, of all pending guardianship pro15 ceedings, including a copy of the guardianship peti16 tion, a clear description of such proceedings and of

17 all rights afforded such individual in the course of

18 such proceedings, and a summary of the possible

19 consequences of a determination of incapacity (or, in

20 the case of a blind or illiterate individual, an oral de21 scription of such rights and information);

22 ‘‘(2) a copy of the notice provided under para23 graph (1) shall be provided to the individual filing

24 a guardianship petition and to the spouse, child, sib-
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1 ling, nearest relative, or custodian of the individual

2 who is the subject of such guardianship petition;

3 ‘‘(3) each individual in the State who is the

4 subject of a guardianship petition has the right to

5 counsel who will act as an advocate for such individ6 ual with respect to such petition unless such individ7 ual knowingly and voluntarily waives such right, and

8 the court shall appoint counsel for such individual at

9 public expense if such individual is indigent or if

10 such individual lacks the capacity to waive the right

11 to counsel;

12 ‘‘(4) each individual in the State who is the

13 subject of a guardianship petition has the right to

14 have the question of incapacity heard by a jury upon

15 request; and

16 ‘‘(5) each individual in the State against whom

17 a determination of incapacity and guardianship

18 order is issued may file an appeal contesting such

19 determination and order in the appropriate court of

20 appeal not later than 30 days after such determina21 tion and order is issued, and may at any time peti22 tion the court issuing such determination and order

23 to modify or dismiss such determination or order.

24 ‘‘(c) STANDARDS FOR DETERMINATIONS OF INCA25 PACITY.—The laws of the State shall provide that—
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1 ‘‘(1) no determination of incapacity shall be

2 made at a guardianship hearing unless the individ3 ual who is the subject of the guardianship petition

4 is present at such hearing, unless the court deter5 mines, on the basis of information provided by a

6 physician, social worker, or other person trained to

7 work with the elderly, the developmentally disabled,

8 or the mentally retarded (whichever is appropriate in

9 the case of a particular individual), that such indi10 vidual has knowingly and voluntarily waived the

11 right to be present at the hearing or cannot be

12 present because of physical incapacity; and

13 ‘‘(2) no determination of incapacity shall be

14 made at a guardianship hearing on the basis of the

15 age of the individual who is the subject of the guard16 ianship petition but shall instead be made on the

17 basis of clear and convincing evidence that such in18 dividual is incapable of administering his own

19 affairs.

20 ‘‘(d) STANDARDS FOR PERSONNEL INVOLVED IN

21 GUARDIANSHIP HEARINGS.—Court personnel in the State

22 involved in guardianship hearings shall be trained to work

23 with the elderly, the developmentally disabled, and the

24 mentally retarded, and shall be briefed on general issues

25 facing such groups, and shall provide necessary visual
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1 aids, interpreters, and other devices in order to assist

2 these individuals during guardianship hearings, and shall

3 make reasonable efforts to schedule each guardianship

4 hearing at a time and location convenient for the individ5 ual who is the subject of the guardianship petition.

6 ‘‘(e) EFFECT OF DETERMINATION OF INCAPACITY.—

7 A determination of incapacity in a guardianship hearing

8 in the State shall not be considered prima facie evidence

9 that the individual in question is insane or is unable to

10 function in a non-institutionalized setting.

11 ‘‘(f) RIGHTS OF WARDS.—The laws of the State shall

12 provide that—

13 ‘‘(1) each ward in the State shall, when fea14 sible, have his personal preferences taken into ac15 count by the court in the appointment of a guardian;

16 and

17 ‘‘(2) during the period of guardianship, each

18 ward in the State shall be entitled to participate in

19 all decisions affecting such ward to the maximum

20 extent possible commensurate with such ward’s func21 tional limitations, and shall retain all rights not or22 dered by the court to be transferred to the guardian.

23 ‘‘(g) STANDARDS FOR GUARDIANSHIPS.—Each

24 guardianship imposed in the State shall be imposed on the
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1 ward in the least restrictive manner commensurate with

2 the ward’s functional limitations.

3 ‘‘(h) STANDARDS FOR APPOINTMENT OF GUARD4 IANS.—The laws of the State shall provide that—

5 ‘‘(1) no person may be appointed to serve as a

6 guardian in the State unless such person certifies

7 that he has completed, or agrees to enroll in and

8 complete, a program of court-supervised training,

9 based upon standards developed by the governor of

10 the State or his designee, in the legal, economic, and

11 psychosocial needs of wards, and a guardian shall be

12 removed from his position as guardian if the court

13 determines that he has failed to complete such a

14 program;

15 ‘‘(2) no person who has been convicted of a fel16 ony may be appointed to serve as a guardian in the

17 State unless the court determines that an exception

18 to such prohibition is appropriate in a particular

19 case; and

20 ‘‘(3) no person may be appointed to serve as a

21 guardian in the State unless such person has filed,

22 and the court conducting the guardianship hearing

23 has approved, a guardianship plan which includes at

24 least a description of the ward’s proposed living ar25 rangements, a plan for meeting the ward’s financial,
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1 medical, and other remedial needs, and provisions

2 for maintaining contact between the ward and the

3 ward’s family and friends.

4 ‘‘(i) DUTIES OF GUARDIANS.—The laws of the State

5 shall provide that—

6 ‘‘(1) each guardian in the State shall file an an7 nual report with the court which issued the order

8 giving such guardian control over the ward’s affairs

9 which includes at least a description of the manage10 ment of the ward’s finances during the previous

11 year, a physician’s report on the health and physical

12 well-being of the ward, and a recommendation of

13 whether the guardianship should be continued,

14 modified, or terminated;

15 ‘‘(2) each guardian in the State may use funds

16 from the estate of the ward over whose affairs he

17 has control only for the administration of the guard18 ianship and the benefit of the ward, and shall repay

19 to the ward’s estate any funds used by such guard20 ian for any purpose determined to be improper by

21 the court which issued the order giving such guard22 ian control over such ward’s affairs; and

23 ‘‘(3) each guardian in the State shall keep the

24 court which issued the order giving such guardian

25 control over the ward’s affairs informed of the
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1 whereabouts of such ward, and shall notify such

2 court whenever such ward is moved to a new resi3 dence.

4 ‘‘(j) STANDARDS REGARDING WARDS MOVING TO

5 AND FROM STATE.—The laws of the State shall provide

6 that—

7 ‘‘(1) if the court which issued a guardianship

8 order receives notice pursuant to subsection (i)(3)

9 that a ward has been moved to a new residence in

10 another State, the court shall notify the appropriate

11 court in that State of the existence of the guardian12 ship and shall provide that court with necessary files

13 and background information on the guardianship;

14 and

15 ‘‘(2) upon receiving notice from a court in an16 other State that a ward subject to a guardianship

17 order has been moved into the State, a court in the

18 State shall assume jurisdiction over such guardian19 ship, and may require the guardian to submit a new

20 petition for guardianship or any other supple21 mentary information to enable the court to exercise

22 such jurisdiction.

23 ‘‘(k) COURT REVIEW OF GUARDIANSHIP ORDERS.—

24 Each court in the State which issues a guardianship order

25 shall conduct an annual review of the guardianship to de-
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1 termine whether the guardian is performing his duties in

2 accordance with the appropriate laws and whether the

3 guardianship should be continued, modified, or termi4 nated.

5 ‘‘(l) STANDARDS FOR PRIVATE PROFESSIONAL

6 GUARDIANS.—Each private professional guardian in the

7 State may operate in the State only if such guardian is

8 bonded and licensed or certified in accordance with re9 quirements consistent with the provisions of this section

10 developed by the governor of the State or his designee.

11 ‘‘(m) DEFINITIONS.—For purposes of this section—

12 ‘‘(1) the term ‘guardian’ means a person vested

13 by law with the power and duty of taking care of the

14 person or property of another 18 years or older who

15 is adjudged incapable of administering his own af16 fairs, except that such term does not include a

17 guardian ad litem;

18 ‘‘(2) the term ‘guardianship’ means any legal

19 relationship, including a conservatorship, in which a

20 person is vested by law with the power and duty of

21 taking care of the person or property of a ward, ex22 cept that such term does not include a guardianship

23 ad litem; and

24 ‘‘(3) the term ‘ward’ means a person 18 years

25 or older adjudged incapable of administering his
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1 own affairs and placed by a court under the care of

2 a guardian.’’.

3 SEC. 3. DEMONSTRATION GRANTS FOR GUARDIANSHIP AD4 VOCATE PROGRAMS.

5 (a) IN GENERAL.—The Secretary of Health and

6 Human Services (in this section referred to as the ‘‘Sec7 retary’’) shall award 2-year demonstration grants to eligi8 ble States for the establishment and operation of guard9 ianship advocate programs, including the hiring and train10 ing of individuals to serve as guardianship advocates and

11 investigators in such programs.

12 (b) DUTIES OF ADVOCATES AND INVESTIGATORS.—

13 Individuals hired and trained to serve as guardianship ad14 vocates and investigators with funds provided under sub15 section (a) shall serve as employees of the courts within

16 the State which conduct guardianship hearings and issue

17 determinations of incapacity and guardianship orders, and

18 shall provide information and services to wards and to in19 dividuals who are the subjects of guardianship petitions,

20 including—

21 (1) making reports to the court on individuals

22 who are the subjects of guardianship petitions;

23 (2) notifying such individuals of their rights

24 under State guardianship law;
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1 (3) monitoring wards and guardians and notify2 ing the court of possible violations of State guard3 ianship law;

4 (4) investigating complaints of improper con5 duct made against guardians;

6 (5) providing advice and assistance to guard7 ians in carrying out their guardianships;

8 (6) evaluating reports from guardians;

9 (7) performing other services to assist the

10 courts in conducting and monitoring guardianships;

11 and

12 (8) investigating and evaluating the movement

13 of wards to new residences.

14 (c) ELIGIBILITY.—A State shall be eligible to receive

15 a grant under subsection (a) if it submits an application

16 to the Secretary at such time, in such form, and contain17 ing such information and assurances as the Secretary may

18 require, including an assurance that the State shall pre19 pare and submit to the Secretary an evaluation of each

20 program in such State funded with a grant received under

21 subsection (a).

22 (d) PREFERENCE TO SELF-FINANCING PROGRAMS.—

23 In awarding grants under subsection (a), the Secretary

24 shall give preference to those States which provide assur25 ances to the Secretary that the program funded with such
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1 a grant will, without Federal financial assistance, continue

2 to operate after the expiration of such grant.

3 (e) REPORT TO CONGRESS.—Not later than 3 years

4 after the final grant is awarded under subsection (a), the

5 Secretary shall submit a report to Congress describing the

6 programs funded with such grants, evaluating the effect

7 of such programs on the guardianship process and on the

8 protection of the rights of wards and individuals subject

9 to guardianship petitions, and containing recommenda10 tions on the desirability of continuing the funding of such

11 programs on a permanent basis.

12 (f) AUTHORIZATION OF APPROPRIATIONS.—There

13 are authorized to be appropriated for grants under sub14 section (a) $5,000,000.

15 (g) DEFINITION.—In this section, the term ‘‘State’’

16 means each State, the District of Columbia, the Common17 wealth of Puerto Rico, the Virgin Islands, and Guam.

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