II

104TH CONGRESS

1ST SESSION S. 430

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 SENATE OF THE UNITED STATES

FEBRUARY 16 (legislative day, JANUARY 30), 1995

Ms. SNOWE introduced the following bill; which was read twice and referred

to the Committee on Finance

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 1995’’.
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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)) is amended—

6 (1) in paragraph (61), by striking ‘‘and’’ at the

7 end;

8 (2) in paragraph (62), by striking the period

9 and inserting ‘‘; and’’; and

10 (3) by inserting after paragraph (62) the fol11 lowing new paragraph:

12 ‘‘(63) not later than 2 years after the date of

13 the enactment of this paragraph, provide assurances

14 that the State has adopted, and assumed responsibil15 ity for enforcing, laws relating to guardianship

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

17 (b) REDUCTION OF PAYMENTS TO STATES FOR FAIL18 URE TO ADOPT AND ENFORCE CERTAIN LAWS RELATING

19 TO GUARDIANSHIP.—Section 1903 of the Social Security

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

21 the following new subsection:

22 ‘‘(x)(1) In order to receive payments under para23 graphs (2)(A) and (7) of subsection (a) without being sub24 ject to the reductions set forth in paragraph (2) of this

25 subsection, a State shall adopt and assume responsibility

26 for enforcing, laws relating to guardianship which meet
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1 the requirements of section 1931 on or before the expira2 tion of the 2-year period beginning on the date of the en3 actment of this subsection.

4 ‘‘(2)(A) Subject to subparagraph (B), if a State fails

5 to meet the deadline established under paragraph (1), the

6 percentages specified in paragraphs (2)(A) and (7) of sub7 section (a) with respect to that State shall each be re8 duced—

9 ‘‘(i) for the first 2 quarters beginning on or

10 after such deadline, 5 percentage points; and

11 ‘‘(ii) thereafter, for any period consisting of 2

12 consecutive quarters during which the Secretary de13 termines that the State fails to meet the require14 ments of paragraph (1), 5 additional percentage

15 points.

16 ‘‘(B) With respect to the percentages specified in

17 paragraphs (2)(A) and (7) of subsection (a)—

18 ‘‘(i) such percentages shall not be reduced more

19 than 25 percentage points by reason of subpara20 graph (A); and

21 ‘‘(ii) no reduction shall be made under subpara22 graph (A) for any quarter following the quarter dur23 ing which a State satisfies the requirements of para24 graph (1).’’.
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1 (c) DESCRIPTION OF REQUIREMENTS.—Title XIX of

2 the Social Security Act (42 U.S.C. 1396 et seq.) is

3 amended—

4 (1) by redesignating section 1931 as section

5 1932; and

6 (2) by inserting after section 1930 the following

7 new section:

8 ‘‘REQUIREMENTS FOR STATE GUARDIANSHIP LAWS

9 ‘‘SEC. 1931. (a) IN GENERAL.—For purposes of sec10 tions 1902(a)(63) and 1903(x), a State has adopted laws

11 relating to guardianship which meet the requirements of

12 this section if the State has adopted laws (or issued regu13 lations) which—

14 ‘‘(1) include the rights, standards, and duties

15 described in subsections (b) through (l); or

16 ‘‘(2) protect individuals in the State as effec17 tively as laws (or regulations) which include the

18 rights, standards, and duties described in such sub19 sections (as determined by the Secretary).

20 ‘‘(b) RIGHTS OF INDIVIDUALS SUBJECT TO GUARD21 IANSHIP PETITIONS.—The laws of the State shall provide

22 that—

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

24 subject of a guardianship petition shall be provided

25 with an adequate and timely notice, in large print

26 and plain language, of all pending guardianship pro-
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1 ceedings, including a copy of the guardianship peti2 tion, a clear description of such proceedings and of

3 all rights afforded such individual in the course of

4 such proceedings, and a summary of the possible

5 consequences of a determination of incapacity (or, in

6 the case of a blind or illiterate individual, an oral de7 scription of such rights and information);

8 ‘‘(2) a copy of the notice provided under para9 graph (1) shall be provided to the individual filing

10 a guardianship petition and to the nonfiling spouse,

11 child, sibling, nearest relative, or custodian of the

12 individual who is the subject of such guardianship

13 petition;

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

15 subject of a guardianship petition has the right to

16 counsel who will act as an advocate for such individ17 ual with respect to such petition unless such individ18 ual knowingly and voluntarily waives such right, and

19 the court shall appoint counsel for such individual at

20 public expense if such individual is indigent or if

21 such individual lacks the capacity to waive the right

22 to counsel;

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

24 subject of a guardianship petition has the right to
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1 have the question of incapacity heard by a jury upon

2 request; and

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

4 a determination of incapacity and guardianship

5 order is issued may file an appeal contesting such

6 determination and order in the appropriate court of

7 appeal not later than 30 days after such determina8 tion and order is issued, and may at any time peti9 tion the court issuing such determination and order

10 to modify or dismiss such determination or order.

11 ‘‘(c) STANDARDS FOR DETERMINATIONS OF INCA12 PACITY.—The laws of the State shall provide that no de13 termination of incapacity shall be made at a guardianship

14 hearing—

15 ‘‘(1) unless—

16 ‘‘(A) the individual who is the subject of

17 the guardianship petition is present at such

18 hearing; or

19 ‘‘(B) the court determines, on the basis of

20 information provided by a physician, social

21 worker, or other person trained to work with

22 the elderly, the developmentally disabled, or the

23 mentally retarded (whichever is appropriate in

24 the case of a particular individual), that such

25 individual has knowingly and voluntarily waived
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1 the right to be present at the hearing or cannot

2 be present because of physical incapacity; and

3 ‘‘(2) on the basis of the age of the individual

4 who is the subject of the guardianship petition but

5 shall instead be made on the basis of clear and con6 vincing evidence that such individual is incapable of

7 administering the individual’s own affairs.

8 ‘‘(d) STANDARDS FOR PERSONNEL INVOLVED IN

9 GUARDIANSHIP HEARINGS; SCHEDULE OF HEARINGS.—

10 The laws of the State shall provide that court personnel

11 in the State involved in guardianship hearings shall—

12 ‘‘(1) be trained to work with the elderly, the de13 velopmentally disabled, and the mentally retarded;

14 ‘‘(2) be briefed on general issues facing the in15 dividuals described in paragraph (1);

16 ‘‘(3) provide necessary visual aids, interpreters,

17 and other devices in order to assist the individuals

18 described in paragraph (1) during guardianship

19 hearings; and

20 ‘‘(4) make reasonable efforts to schedule each

21 guardianship hearing at a time and location conven22 ient for the individual who is the subject of the

23 guardianship petition.

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

25 The laws of the State shall provide that a determination
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1 of incapacity in a guardianship hearing in the State shall

2 not be considered prima facie evidence that the individual

3 in question is insane or is unable to function in a non4 institutionalized setting.

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

6 provide that—

7 ‘‘(1) each ward in the State shall, when fea8 sible, have the personal preferences of such ward

9 taken into account by the court in the appointment

10 of a guardian; and

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

12 ward in the State shall be entitled to participate in

13 all decisions affecting such ward to the maximum

14 extent possible commensurate with such ward’s func15 tional limitations, and shall retain all rights not or16 dered by the court to be transferred to the guardian.

17 ‘‘(g) STANDARDS FOR GUARDIANSHIPS.—The laws of

18 the State shall provide that each guardianship imposed in

19 the State shall be imposed on the ward in the least restric20 tive manner commensurate with the ward’s functional

21 limitations.

22 ‘‘(h) STANDARDS FOR APPOINTMENT OF GUARD23 IANS.—The laws of the State shall provide that—

24 ‘‘(1) no individual may be appointed to serve as

25 a guardian in the State unless the individual cer-
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1 tifies that such individual has completed, or agrees

2 to enroll in and complete, a program of court-super3 vised training in the legal, economic, and

4 psychosocial needs of wards, based upon standards

5 developed by the chief executive officer of the State;

6 ‘‘(2) a guardian shall be removed from the

7 guardian’s position if the court determines that the

8 guardian has failed to complete a training program

9 described in paragraph (1);

10 ‘‘(3) no individual who has been convicted of a

11 felony may be appointed to serve as a guardian in

12 the State unless the court determines that an excep13 tion to such prohibition is appropriate in a particu14 lar case; and

15 ‘‘(4) no individual may be appointed to serve as

16 a guardian in the State unless such individual has

17 filed, and the court conducting the guardianship

18 hearing has approved, a guardianship plan which

19 includes—

20 ‘‘(A) a description of the ward’s proposed

21 living arrangements;

22 ‘‘(B) a plan for meeting the ward’s finan23 cial, medical, and other remedial needs; and
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1 ‘‘(C) provisions for maintaining contact be2 tween the ward and the ward’s family and

3 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—

10 ‘‘(A) a description of the management of

11 the ward’s finances during the previous year;

12 ‘‘(B) a physician’s report on the health

13 and physical well-being of the ward; and

14 ‘‘(C) a recommendation as to whether the

15 guardianship should be continued, modified, or

16 terminated;

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

18 from the estate of the ward over whose affairs the

19 guardian has control only for the administration of

20 the guardianship and the benefit of the ward, and

21 shall repay to the ward’s estate any funds used by

22 such guardian for any purpose determined to be im23 proper by the court which issued the order giving

24 such guardian control over such ward’s affairs; and
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1 ‘‘(3) each guardian in the State shall keep the

2 court which issued the order giving such guardian

3 control over the ward’s affairs informed of the

4 whereabouts of such ward, and shall notify such

5 court whenever such ward is moved to a new resi6 dence.

7 ‘‘(j) STANDARDS REGARDING WARDS MOVING TO

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

9 that—

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

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

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

13 another State, the court shall notify the appropriate

14 court in that State of the existence of the guardian15 ship and shall provide that court with necessary files

16 and background information on the guardianship;

17 and

18 ‘‘(2) upon receiving notice from a court in an19 other State that a ward subject to a guardianship

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

21 State shall assume jurisdiction over such guardian22 ship, and may require the guardian to submit a new

23 petition for guardianship or any other supple24 mentary information to enable the court to exercise

25 such jurisdiction.
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1 ‘‘(k) COURT REVIEW OF GUARDIANSHIP ORDERS.—

2 The laws of the State shall provide that each court in the

3 State which issues a guardianship order shall conduct an

4 annual review of the guardianship to determine whether

5 the guardian is performing the guardian’s duties in ac6 cordance with the appropriate laws and whether the

7 guardianship should be continued, modified, or termi8 nated.

9 ‘‘(l) STANDARDS FOR PRIVATE PROFESSIONAL

10 GUARDIANS.—The laws of the State shall provide that

11 each private professional guardian in a State may operate

12 in the State only if such guardian is bonded and licensed

13 or certified in accordance with requirements consistent

14 with the provisions of this section developed by the chief

15 executive officer of the State.

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

17 ‘‘(1) the term ‘guardian’—

18 ‘‘(A) means an individual vested by law

19 with the power and duty of taking care of the

20 person or property of another individual who—

21 ‘‘(i) is 18 years or older; and

22 ‘‘(ii) has been determined to be in23 capable of administering such individual’s

24 own affairs; but

25 ‘‘(B) does not include a guardian ad litem;
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1 ‘‘(2) the term ‘guardianship’—

2 ‘‘(A) means any legal relationship, includ3 ing a conservatorship, in which an individual is

4 vested by law with the power and duty of taking

5 care of the person or property of a ward; but

6 ‘‘(B) does not include a guardianship ad

7 litem; and

8 ‘‘(3) the term ‘ward’ means an individual 18

9 years or older who has been—

10 ‘‘(A) determined to be incapable of admin11 istering such individual’s own affairs; and

12 ‘‘(B) placed by a court under the care of

13 a guardian.’’.

14 SEC. 3. DEMONSTRATION GRANTS FOR GUARDIANSHIP AD15 VOCATE PROGRAMS.

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

17 Human Services (in this section referred to as the ‘‘Sec18 retary’’) shall award 2-year demonstration grants to eligi19 ble States (as determined under subsection (c)) for the

20 establishment and operation of guardianship advocate pro21 grams, including the hiring and training of individuals to

22 serve as guardianship advocates and investigators in such

23 programs.

24 (b) DUTIES OF ADVOCATES AND INVESTIGATORS.—

25 Individuals hired and trained to serve as guardianship ad-
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1 vocates and investigators with funds provided under sub2 section (a) shall serve as employees of the courts within

3 the State which conduct guardianship hearings and issue

4 determinations of incapacity and guardianship orders, and

5 shall provide information and services to wards and to in6 dividuals who are the subjects of guardianship petitions,

7 including—

8 (1) making reports to the court on individuals

9 who are the subjects of guardianship petitions;

10 (2) notifying such individuals of their rights

11 under State guardianship law;

12 (3) monitoring wards and guardians and notify13 ing the court of possible violations of State guard14 ianship law;

15 (4) investigating complaints of improper con16 duct made against guardians;

17 (5) providing advice and assistance to guard18 ians in carrying out their guardianships;

19 (6) evaluating reports from guardians;

20 (7) performing other services to assist the

21 courts in conducting and monitoring guardianships;

22 and

23 (8) investigating and evaluating the movement

24 of wards to new residences.
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1 (c) ELIGIBILITY.—A State shall be eligible to receive

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

3 to the Secretary at such time, in such form, and contain4 ing such information and assurances as the Secretary may

5 require, including an assurance that the State shall pre6 pare and submit to the Secretary an evaluation of each

7 program in such State funded with a grant received under

8 subsection (a).

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

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

11 shall give preference to those States which provide assur12 ances to the Secretary that the program funded with such

13 a grant will, without Federal financial assistance, continue

14 to operate after the expiration of such grant.

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

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

17 Secretary shall submit a report to the Congress—

18 (1) describing the programs funded with such

19 grants;

20 (2) evaluating the effect of such programs on

21 the guardianship process and on the protection of

22 the rights of wards and individuals subject to guard23 ianship petitions; and
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1 (3) containing recommendations on the desir2 ability of continuing the funding of such programs

3 on a permanent basis.

4 (f) AUTHORIZATION OF APPROPRIATIONS.—There

5 are authorized to be appropriated $5,000,000 for grants

6 under subsection (a).

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

8 means each of the 50 States, the District of Columbia,

9 the Commonwealth of Puerto Rico, the Virgin Islands, and

10 Guam.

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