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 condi-
tion 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 pro-
gram, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Guardianship Rights
and Responsibilities Act of 1993’’.
SEC. 2. GUARDIANSHIP REQUIREMENTS FOR STATE MEDIC-
AID PLANS.
(a) GUARDIANSHIP REQUIREMENTS AS CONDITION
OF ELIGIBILITY.—Section 1902(a) of the Social Security
Act (42 U.S.C. 1396a(a)), as amended by the Omnibus
Budget Reconciliation Act of 1990 (hereafter referred to
as ‘‘OBRA–1990’’), is amended—
(1) by striking ‘‘and’’ at the end of paragraph
(54);
(2) in the paragraph (55) inserted by section
4602(a)(3) of OBRA–1990, by striking the period at
the end and inserting a semicolon;
(3) by redesignating the paragraph (55) in-
serted by section 4604(b)(3) of OBRA–1990 as
paragraph (56), by transferring and inserting it
after the paragraph (55) inserted by section
4602(a)(3) of such Act, and by striking the period
at the end and inserting a semicolon;
(4) by placing paragraphs (57) and (58), in-
serted by section 4751(a)(1)(C) of OBRA–1990, im-
mediately after paragraph (56), as redesignated by
subparagraph (C);
(5) in the paragraph (58) inserted by section
4751(a)(1)(C) of OBRA–1990, by striking the pe-
riod at the end and inserting a semicolon;
(6) by redesignating the paragraph (58) in-
serted by section 4752(c)(1)(C) of OBRA–1990 as
paragraph (59), by transferring and inserting it
after the paragraph (58) inserted by section
4751(a)(1)(C) of such Act, and by striking the pe-
riod at the end and inserting ‘‘; and’’; and
(7) by inserting after paragraph (59), as so re-
designated, the following new paragraph:
‘‘(60) not later than 2 years after the date of
the enactment of this paragraph, include assurances
that the State has adopted, and assumed responsibil-
ity for enforcing, laws relating to guardianship
which meet the requirements of section 1931.’’.
(b) REDUCTION OF PAYMENTS TO STATES FOR FAIL-
URE TO ADOPT AND ENFORCE CERTAIN LAWS RELATING
TO GUARDIANSHIP.—Section 1903 of the Social Security
Act (42 U.S.C. 1396(b)) is amended by adding at the end
the following new subsection:
‘‘(x)(1) In order to receive payments under para-
graphs (2)(A) and (7) of subsection (a) without being sub-
ject to per centum reductions set forth in paragraph (2)
of this subsection, a State must provide that it has adopt-
ed, and assumed responsibility for enforcing, laws relating
to guardianship which meet the requirements of section
1931 on or before the expiration of the 2-year period be-
ginning on the date of the enactment of this subsection.
‘‘(2) If a State fails to meet the deadline established
under paragraph (1), the per centums specified in para-
graphs (2)(A) and (7) of subsection (a) with respect to
that State shall each be reduced 5 percentage points for
the first two quarters beginning on or after such deadline,
and shall be further reduced an additional 5 percentage
points after each period consisting of two quarters during
which the Secretary determines the State fails to meet the
requirements of paragraph (1) of this subsection, except
that—
‘‘(A) neither such per centum may be reduced
more than 25 percentage points by reason of this
paragraph; and
‘‘(B) no reduction shall be made under this
paragraph for any quarter following the quarter dur-
ing which such State meets the requirements of
paragraph (1).’’.
(c) DESCRIPTION OF REQUIREMENTS.—Title XIX of
the Social Security Act (42 U.S.C. 1396 et seq.) is amend-
ed by adding at the end the following new section:
‘‘REQUIREMENTS FOR STATE GUARDIANSHIP LAWS
‘‘SEC. 1931. (a) IN GENERAL.—For purposes of sec-
tions 1902(a)(60) and 1903(x), a State has adopted laws
relating to guardianship which meet the requirements of
this section if the State has adopted laws or issued regula-
tions which include the rights, standards, and duties de-
scribed in subsections (b) through (l) or, in the determina-
tion of the Secretary, which protect individuals in the
State as effectively as laws or regulations which include
the rights, standards, and duties described in such sub-
sections.
‘‘(b) RIGHTS OF INDIVIDUALS SUBJECT TO GUARD-
IANSHIP PETITIONS.—The laws of the State shall provide
that—
‘‘(1) each individual in the State who is the
subject of a guardianship petition shall be provided
with an adequate and timely notice, in large print
and plain language, of all pending guardianship pro-
ceedings, including a copy of the guardianship peti-
tion, a clear description of such proceedings and of
all rights afforded such individual in the course of
such proceedings, and a summary of the possible
consequences of a determination of incapacity (or, in
the case of a blind or illiterate individual, an oral de-
scription of such rights and information);
‘‘(2) a copy of the notice provided under para-
graph (1) shall be provided to the individual filing
a guardianship petition and to the spouse, child, sib-
ling, nearest relative, or custodian of the individual
who is the subject of such guardianship petition;
‘‘(3) each individual in the State who is the
subject of a guardianship petition has the right to
counsel who will act as an advocate for such individ-
ual with respect to such petition unless such individ-
ual knowingly and voluntarily waives such right, and
the court shall appoint counsel for such individual at
public expense if such individual is indigent or if
such individual lacks the capacity to waive the right
to counsel;
‘‘(4) each individual in the State who is the
subject of a guardianship petition has the right to
have the question of incapacity heard by a jury upon
request; and
‘‘(5) each individual in the State against whom
a determination of incapacity and guardianship
order is issued may file an appeal contesting such
determination and order in the appropriate court of
appeal not later than 30 days after such determina-
tion and order is issued, and may at any time peti-
tion the court issuing such determination and order
to modify or dismiss such determination or order.
‘‘(c) STANDARDS FOR DETERMINATIONS OF INCA-
PACITY.—The laws of the State shall provide that—
‘‘(1) no determination of incapacity shall be
made at a guardianship hearing unless the individ-
ual who is the subject of the guardianship petition
is present at such hearing, unless the court deter-
mines, on the basis of information provided by a
physician, social worker, or other person trained to
work with the elderly, the developmentally disabled,
or the mentally retarded (whichever is appropriate in
the case of a particular individual), that such indi-
vidual has knowingly and voluntarily waived the
right to be present at the hearing or cannot be
present because of physical incapacity; and
‘‘(2) no determination of incapacity shall be
made at a guardianship hearing on the basis of the
age of the individual who is the subject of the guard-
ianship petition but shall instead be made on the
basis of clear and convincing evidence that such in-
dividual is incapable of administering his own
affairs.
‘‘(d) STANDARDS
FOR PERSONNEL INVOLVED
IN
GUARDIANSHIP HEARINGS.—Court personnel in the State
involved in guardianship hearings shall be trained to work
with the elderly, the developmentally disabled, and the
mentally retarded, and shall be briefed on general issues
facing such groups, and shall provide necessary visual
aids, interpreters, and other devices in order to assist
these individuals during guardianship hearings, and shall
make reasonable efforts to schedule each guardianship
hearing at a time and location convenient for the individ-
ual who is the subject of the guardianship petition.
‘‘(e) EFFECT OF DETERMINATION OF INCAPACITY.—
A determination of incapacity in a guardianship hearing
in the State shall not be considered prima facie evidence
that the individual in question is insane or is unable to
function in a non-institutionalized setting.
‘‘(f) RIGHTS OF WARDS.—The laws of the State shall
provide that—
‘‘(1) each ward in the State shall, when fea-
sible, have his personal preferences taken into ac-
count by the court in the appointment of a guardian;
and
‘‘(2) during the period of guardianship, each
ward in the State shall be entitled to participate in
all decisions affecting such ward to the maximum
extent possible commensurate with such ward’s func-
tional limitations, and shall retain all rights not or-
dered by the court to be transferred to the guardian.
‘‘(g) 
STANDARDS
FOR
GUARDIANSHIPS.—Each
guardianship imposed in the State shall be imposed on the
ward in the least restrictive manner commensurate with
the ward’s functional limitations.
‘‘(h) STANDARDS
FOR APPOINTMENT
OF GUARD-
IANS.—The laws of the State shall provide that—
‘‘(1) no person may be appointed to serve as a
guardian in the State unless such person certifies
that he has completed, or agrees to enroll in and
complete, a program of court-supervised training,
based upon standards developed by the governor of
the State or his designee, in the legal, economic, and
psychosocial needs of wards, and a guardian shall be
removed from his position as guardian if the court
determines that he has failed to complete such a
program;
‘‘(2) no person who has been convicted of a fel-
ony may be appointed to serve as a guardian in the
State unless the court determines that an exception
to such prohibition is appropriate in a particular
case; and
‘‘(3) no person may be appointed to serve as a
guardian in the State unless such person has filed,
and the court conducting the guardianship hearing
has approved, a guardianship plan which includes at
least a description of the ward’s proposed living ar-
rangements, a plan for meeting the ward’s financial,
medical, and other remedial needs, and provisions
for maintaining contact between the ward and the
ward’s family and friends.
‘‘(i) DUTIES OF GUARDIANS.—The laws of the State
shall provide that—
‘‘(1) each guardian in the State shall file an an-
nual report with the court which issued the order
giving such guardian control over the ward’s affairs
which includes at least a description of the manage-
ment of the ward’s finances during the previous
year, a physician’s report on the health and physical
well-being of the ward, and a recommendation of
whether the guardianship should be continued,
modified, or terminated;
‘‘(2) each guardian in the State may use funds
from the estate of the ward over whose affairs he
has control only for the administration of the guard-
ianship and the benefit of the ward, and shall repay
to the ward’s estate any funds used by such guard-
ian for any purpose determined to be improper by
the court which issued the order giving such guard-
ian control over such ward’s affairs; and
‘‘(3) each guardian in the State shall keep the
court which issued the order giving such guardian
control over the ward’s affairs informed of the
whereabouts of such ward, and shall notify such
court whenever such ward is moved to a new resi-
dence.
‘‘(j) STANDARDS REGARDING WARDS MOVING TO
AND FROM STATE.—The laws of the State shall provide
that—
‘‘(1) if the court which issued a guardianship
order receives notice pursuant to subsection (i)(3)
that a ward has been moved to a new residence in
another State, the court shall notify the appropriate
court in that State of the existence of the guardian-
ship and shall provide that court with necessary files
and background information on the guardianship;
and
‘‘(2) upon receiving notice from a court in an-
other State that a ward subject to a guardianship
order has been moved into the State, a court in the
State shall assume jurisdiction over such guardian-
ship, and may require the guardian to submit a new
petition for guardianship or any other supple-
mentary information to enable the court to exercise
such jurisdiction.
‘‘(k) COURT REVIEW OF GUARDIANSHIP ORDERS.—
Each court in the State which issues a guardianship order
shall conduct an annual review of the guardianship to de-
termine whether the guardian is performing his duties in
accordance with the appropriate laws and whether the
guardianship should be continued, modified, or termi-
nated.
‘‘(l) STANDARDS
FOR
PRIVATE
PROFESSIONAL
GUARDIANS.—Each private professional guardian in the
State may operate in the State only if such guardian is
bonded and licensed or certified in accordance with re-
quirements consistent with the provisions of this section
developed by the governor of the State or his designee.
‘‘(m) DEFINITIONS.—For purposes of this section—
‘‘(1) the term ‘guardian’ means a person vested
by law with the power and duty of taking care of the
person or property of another 18 years or older who
is adjudged incapable of administering his own af-
fairs, except that such term does not include a
guardian ad litem;
‘‘(2) the term ‘guardianship’ means any legal
relationship, including a conservatorship, in which a
person is vested by law with the power and duty of
taking care of the person or property of a ward, ex-
cept that such term does not include a guardianship
ad litem; and
‘‘(3) the term ‘ward’ means a person 18 years
or older adjudged incapable of administering his