Guardianship Accountability Act of 2019

II 116TH CONGRESS 1ST SESSION S. 591 To assist States in improving guardianship oversight and data collection. IN THE SENATE OF THE UNITED STATES FEBRUARY 27, 2019 Ms. COLLINS (for herself and Mr. CASEY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To assist States in improving guardianship oversight and data collection. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Guardianship Account- 4 ability Act of 2019’’. 5 SEC. 2. FINDINGS; PURPOSES. 6 (a) FINDINGS.—Congress finds the following: 7 (1) An estimated 1,300,000 adults and approxi- 8 mately $50,000,000,000 in assets are under the care 9 of guardians in the United States. 10 VerDate Sep 11 2014 21:31 Mar 06, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S591.IS S591 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 591 IS (2) Most guardians are selfless, dedicated indi- 1 viduals who play an important role in safeguarding 2 individuals in need of support. However, unscrupu- 3 lous guardians acting with little oversight have used 4 guardianship proceedings to obtain control of indi- 5 viduals in need of support. 6 (3) Once a guardianship is imposed, there are 7 often few safeguards in place to protect against indi- 8 viduals who choose to abuse the system and few 9 states are able to report accurate or detailed guard- 10 ianship data. 11 (4) A full guardianship order may remove more 12 rights than necessary and may not be the best 13 means of providing support and protection to an in- 14 dividual. If individuals subject to guardianship re- 15 gain capacity, all or some rights should be quickly 16 and efficiently restored. 17 (5) States should encourage courts to use alter- 18 natives to guardianship through State statutes, in- 19 cluding the adoption of the Uniform Guardianship, 20 Conservatorship, and Other Protective Arrange- 21 ments Act, to ensure better protections and control 22 for individuals being considered for guardianship 23 and those pursuing a restoration of their rights. 24 VerDate Sep 11 2014 21:31 Mar 06, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S591.IS S591 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 591 IS (6) A national resource center on guardianship 1 is needed to collect and publish information for the 2 benefit of courts, policy makers, individuals subject 3 to guardianship, guardians, community organiza- 4 tions, and other stakeholders. 5 (b) PURPOSES.—The purposes of this Act are to help 6 States improve guardianship oversight and data collection 7 by— 8 (1) designating a National Online Resource 9 Center on Guardianship; 10 (2) authorize grants for the purpose of devel- 11 oping State Guardianship Databases; and 12 (3) establishing procedures for sharing back- 13 ground check information related to appointed 14 guardians with other jurisdictions. 15 SEC. 3. DEFINITIONS. 16 In this Act: 17 (1) ELDER JUSTICE COORDINATING COUNCIL.— 18 The term ‘‘Elder Justice Coordinating Council’’ 19 means the Council established under section 2021 of 20 the Social Security Act (42 U.S.C. 1397k). 21 (2) GUARDIANSHIP.—The term ‘‘guardianship’’ 22 means a legal relationship established by a court 23 when a person is determined to lack the ability to 24 meet essential requirements for physical health, safe- 25 VerDate Sep 11 2014 21:31 Mar 06, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S591.IS S591 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 591 IS ty, or self-care because the person is unable to re- 1 ceive and evaluate information or make or commu- 2 nicate decisions about their person or property, even 3 with appropriate supportive services, technological 4 assistance, supported decision making, or other less 5 restrictive alternatives. 6 (3) INDIVIDUALS SUBJECT TO GUARDIAN- 7 SHIP.—The term ‘‘individuals subject to guardian- 8 ship’’ means any individual 18 years or older placed 9 under a guardianship. 10 SEC. 4. NATIONAL ONLINE RESOURCE CENTER ON GUARD- 11 IANSHIP. 12 (a) DESIGNATION.—The Elder Justice Coordinating 13 Council shall establish a National Online Resource Center 14 on Guardianship (referred to in this section as the ‘‘Cen- 15 ter’’). 16 (b) THE NATIONAL ONLINE RESOURCE CENTER ON 17 GUARDIANSHIP.—The National Online Resource Center 18 shall— 19 (1) collect and publish information for use by 20 individuals subject to guardianship, guardians, 21 courts, State and local governments, and community 22 organizations; 23 (2) post model standards, best practices, and 24 guidelines for the appointment and regulation of 25 VerDate Sep 11 2014 21:31 Mar 06, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S591.IS S591 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 591 IS guardianship cases developed under section 505 of 1 the Elder Abuse Prevention and Prosecution Act (34 2 U.S.C. 21752); 3 (3) promote the use of less restrictive alter- 4 natives to guardianship and the restoration of rights 5 of individuals subject to guardianship; 6 (4) annually compile and publish a summary of 7 recently conducted research on guardianship sys- 8 tems, including information from agencies across the 9 government; 10 (5) collect data from States regarding— 11 (A) the number of individuals subject to 12 guardianship; 13 (B) the duration of guardianships; 14 (C) whether the authority granted to 15 guardians is classified as— 16 (i) full guardianship; 17 (ii) limited guardianship; 18 (iii) emergency or temporary guard- 19 ianship; or 20 (iv) a less restrictive alternative to 21 guardianship; 22 (D) the amount of financial assets under 23 guardianship; and 24 VerDate Sep 11 2014 21:31 Mar 06, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S591.IS S591 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 591 IS (E) whether an appointed guardian is clas- 1 sified as a— 2 (i) family or other nonprofessional 3 guardian; 4 (ii) private or professional guardian or 5 guardianship agencies; or 6 (iii) public guardian; 7 (6) maintain a public, national database on 8 State laws regarding guardianship and less restric- 9 tive alternatives to guardianship, including require- 10 ments for the— 11 (A) use of least restrictive alternative; 12 (B) regular filing and documentation by 13 appointed guardians; 14 (C) oversight of appointed guardians; 15 (D) restoration of rights of individuals 16 subject to guardianship; and 17 (E) oversight of potential conflicts of inter- 18 est among individuals and organizations in- 19 volved in guardianship applications, appoint- 20 ments, and oversight; 21 (7) identify issues relating to guardianship and 22 provide and publish annual recommendations to 23 States and Congress to address identified problems; 24 VerDate Sep 11 2014 21:31 Mar 06, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S591.IS S591 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 591 IS (8) collect and analyze best practices relating to 1 guardianship, and publish a report of such best 2 practices, including model guidelines and standards 3 for— 4 (A) ensuring appropriate representation 5 and protection of legal rights for individuals 6 subject to guardianship and guardianship pro- 7 ceedings; 8 (B) conducting background check inves- 9 tigations on prospective and appointed guard- 10 ians; 11 (C) promoting the use of less restrictive al- 12 ternatives to guardianship; 13 (D) obtaining restoration of all or some 14 rights; 15 (E) implementing oversight programs; and 16 (F) responding to abuse, neglect, and ex- 17 ploitation; 18 (9) compile and publish training materials for 19 court appointed guardians related to duties and obli- 20 gations, as well as ways in which to effectively sup- 21 port individuals subject to guardianship; 22 (10) facilitate State collection of guardianship 23 information and the sharing of such information 24 among States; and 25 VerDate Sep 11 2014 21:31 Mar 06, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S591.IS S591 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 591 IS (11) carry out other activities, as determined by 1 the Elder Justice Coordinating Council. 2 (c) CONSIDERATION.—In developing the Center, the 3 Elder Justice Coordinating Council shall take into account 4 diverse stakeholder views, including those of individuals 5 and organizations representing people with disabilities, 6 older adults, family members, court-stakeholder partner- 7 ships and others, as well as available literature developed 8 through academic or other research institutions. 9 SEC. 5. STATE GUARDIANSHIP DATABASES. 10 Section 2042(c) of the Social Security Act (42 U.S.C. 11 1397m–1(c)) is amended— 12 (1) in paragraph (1), by striking ‘‘paragraph 13 (2)(E)’’ and inserting ‘‘subparagraphs (E), (F), (G), 14 and (H) of paragraph (2)’’; 15 (2) in paragraph (2)— 16 (A) in the matter preceding subparagraph 17 (A)— 18 (i) by striking ‘‘Funds’’ and inserting 19 ‘‘Subject to paragraph (7), funds’’; and 20 (ii) by striking ‘‘subparagraph (E)’’ 21 and inserting ‘‘subparagraphs (E), (F), 22 (G), and (H)’’; 23 (B) in subparagraph (E), by striking ‘‘or’’ 24 at the end; 25 VerDate Sep 11 2014 21:31 Mar 06, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S591.IS S591 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 591 IS (C) by redesignating subparagraph (F) as 1 subparagraph (I); and 2 (D) by inserting after subparagraph (E) 3 the following new paragraphs: 4 ‘‘(F) methods to assess State guardianship 5 statistics such as the creation of State data- 6 bases to collect information about the number 7 and characteristics of guardianship arrange- 8 ments, guardians, and individuals subject to 9 guardianship; 10 ‘‘(G) the use of trained court visitors to 11 improve court administration of guardianship 12 arrangements, including the appointment and 13 oversight of guardians; 14 ‘‘(H) methods for collecting, storing, and 15 making available to the appropriate individuals, 16 organizations, and entities information on pro- 17 spective, current, and previously appointed 18 guardians, which may include— 19 ‘‘(i) contact and identifying informa- 20 tion; 21 ‘‘(ii) information relating to back- 22 ground check investigations; 23 ‘‘(iii) court decisions regarding peti- 24 tions for appointment as a guardian, in- 25 VerDate Sep 11 2014 21:31 Mar 06, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S591.IS S591 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 591 IS cluding the rationale for such decisions; 1 and 2 ‘‘(iv) information relating to the cause 3 for removal of the guardian or termination 4 of the guardianship arrangement; or’’; 5 (3) in paragraph (4), by striking ‘‘paragraph 6 (2)(E)’’ and inserting ‘‘subparagraphs (E), (F), (G), 7 and (H) of paragraph (2)’’; 8 (4) in paragraph (5), by striking ‘‘paragraph 9 (2)(E)’’ each place it appears and inserting ‘‘sub- 10 paragraphs (E), (F), (G), and (H) of paragraph 11 (2)’’; and 12 (5) by adding at the end the following new 13 paragraph: 14 ‘‘(7) ENSURING DEMONSTRATION PROGRAM 15 FUNDING FOR THE HIGHEST COURTS OF STATES.— 16 The Secretary shall ensure that at least 5 percent of 17 the total of any funds made available to carry out 18 this subsection in a fiscal year (beginning with fiscal 19 year 2020) is awarded under grants to the highest 20 courts of States for purposes of conducting dem- 21 onstration programs described in subparagraphs 22 (E), (F), (G), and (H) of paragraph (2).’’. 23 Æ VerDate Sep 11 2014 21:31 Mar 06, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S591.IS S591 pamtmann on DSKBFK8HB2PROD with BILLS