Federal

Guardianship Bill of Rights Act

Source: Congress.gov · 5,962 words in original text

What This Bill Does

This bill creates a set of rights for people who are being considered for or who are in guardianships, conservatorships, or other protective arrangements. The bill establishes a national council to develop standards that protect civil rights and promote less restrictive decision-making options like supported decision-making arrangements. ##

Who It Affects

* Older adults (people age 60 and older) * People with disabilities * Family members of people in guardianships or protective arrangements * State courts handling guardianship cases * Lawyers and judges involved in guardianship proceedings * Protection and advocacy systems and legal services organizations * State and Indian Tribe governments * Schools and educational agencies * Health care systems and behavioral health providers * Financial institutions ##

Key Provisions

* A Guardianship and Other Protective Arrangements and Supported Decisionmaking Council will be established within 180 days to advise on national standards. The Council will have 30 members including people currently in protective arrangements, family members, lawyers, judges, and disability advocates. (Sec. 4) * The Attorney General must establish standards to protect civil rights of people in guardianships and other protective arrangements, covering rights to voting, marriage decisions, reproductive decisions, finances, education, health care, religion, where to live, relationships, travel, and daily decisions. (Sec. 5) * The Secretary of Health and Human Services must develop standards for establishing, reviewing, modifying, and ending protective arrangements, with court reviews happening at least yearly. People must have a lawyer representing them throughout the process. (Sec. 6) * States and Indian Tribes must show they are protecting civil rights and promoting supported decision-making arrangements in order to receive certain federal law enforcement grants called Byrne grants. The Attorney General can reduce these grants if standards are violated. (Sec. 5) * Protection and advocacy systems in each state will receive grants to monitor guardianships and protective arrangements, provide legal help to people facing guardianship proceedings, and investigate abuse. (Sec. 7) ##

What Changes

If this bill becomes law, there will be national standards for the first time protecting the civil rights of people in guardianships and similar arrangements. States will need to prioritize less restrictive options like supported decision-making arrangements (where supporters help someone understand and make their own decisions) before imposing guardianships. People being considered for guardianship will have guaranteed access to their own independent lawyer. Courts will have to review guardianships at least yearly and consider whether to restore rights. States that do not protect these civil rights could lose federal law enforcement funding. Each state will have funded programs specifically to monitor guardianships and help people exit them. ##

Important Definitions

* **Guardianship**: A legal relationship where a court appoints someone to make decisions for a person who cannot make decisions themselves, even with support services or alternative arrangements. * **Limited guardianship**: A guardianship where the court decides which specific decisions the guardian can make, not all decisions. * **Plenary guardianship**: A guardianship where the guardian can make all decisions allowed by state law for a person. * **Conservatorship**: Not explicitly defined in the bill but referenced throughout. (The bill does not provide a separate definition.) * **Protective arrangement**: A court-ordered arrangement where someone helps make decisions for another person for a specific time period, or a guardianship or conservatorship. * **Supported decisionmaking arrangement**: An agreement where support people (family, friends, or professionals) help a person understand and communicate their own decisions without taking away the person's right to make choices. * **Alternative arrangement**: An arrangement with family members, friends, and professionals that helps someone make decisions while restricting fewer rights than guardianship. * **Covered individual**: An older adult or a person with a disability. ##

II 118TH CONGRESS 1ST SESSION S. 1148 To establish rights for people being considered for and in protective arrange- ments, including guardianships and conservatorships, or other arrange- ments, to provide decision supports. IN THE SENATE OF THE UNITED STATES MARCH 30, 2023 Mr. CASEY (for himself, Mr. FETTERMAN, Ms. WARREN, and Mr. SANDERS) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To establish rights for people being considered for and in protective arrangements, including guardianships and conservatorships, or other arrangements, to provide deci- sion supports. 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 Bill of 4 Rights Act’’. 5 SEC. 2. FINDINGS AND PURPOSE. 6 (a) FINDINGS.—Congress finds the following: 7 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1148 IS (1) At least 1,300,000 people in the United 1 States are in some type of guardianship or other 2 protective arrangement. 3 (2) A majority of guardianships are plenary and 4 strip almost all rights from individuals, with the res- 5 toration of rights being very rare. 6 (3) Guardianship can have grave implications 7 limiting the liberty of people in such an arrange- 8 ment. 9 (4) Overbroad, restrictive, and unnecessary 10 guardianships, conservatorships, and other protective 11 arrangements can dramatically curtail the rights of 12 older adults and persons with disabilities. 13 (5) A person who is being considered for a pro- 14 tective arrangement, or is in a protective arrange- 15 ment, including an individual in a guardianship or 16 conservatorship, has a set of fundamental rights in- 17 cluding— 18 (A) a right, prior to the imposition of a 19 protective arrangement, to exhaust less restric- 20 tive alternative arrangements for supports; 21 (B)(i) a right to an alternative arrange- 22 ment, for anyone who needs decision supports 23 but does not need a guardianship or con- 24 servatorship; and 25 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1148 IS (ii) a right to a supported decisionmaking 1 arrangement for anyone who needs decision 2 supports, whether being considered for or in a 3 protective arrangement; 4 (C) a right to an independent, qualified 5 lawyer who— 6 (i) speaks solely for the person who is 7 being considered for a guardianship or 8 other protective arrangement, or who is in 9 a protective arrangement; 10 (ii) is free of a conflict of interest with 11 the person’s family members, and the cor- 12 responding governmental entities, social 13 service agencies, and courts; 14 (iii) represents the expressed wishes of 15 the person who is being considered for or 16 who is in a protective arrangement; 17 (iv) is compensated at a reasonable 18 fee through the use of public funds, if the 19 person is not able to pay; and 20 (v) is appointed by the court involved, 21 if the person does not prefer to have a law- 22 yer of the person’s own choosing; 23 (D) the right to significant input and full 24 participation into decisions about their life, in- 25 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1148 IS cluding their health, education, finances, em- 1 ployment, housing, relationships, parenthood, 2 politics, religious activities, and social activities, 3 and other basic decisions affecting their life; 4 (E) if in a protective arrangement, the 5 right to a reasonable, timely method and infor- 6 mation for reviewing, modifying, and dis- 7 continuing the protective arrangement; 8 (F) if in a protective arrangement, the 9 right to, at a minimum, an annual meaningful 10 review of their protective arrangement that in- 11 cludes representation by a lawyer described in 12 subparagraph (C); and 13 (G) a right to the least restrictive arrange- 14 ment to provide support to a covered individual 15 needing decision supports. 16 (b) PURPOSE.—The purpose of this Act is to create 17 a process to establish a bill of rights for covered individ- 18 uals who are being considered for or who are in a guard- 19 ianship, conservatorship, supported decisionmaking ar- 20 rangement, or other alternative arrangement, regarding 21 the decisions of the individuals to ensure the civil rights 22 of each such individual are protected and the individual 23 has significant input into arrangements of the types de- 24 scribed in this subsection. 25 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1148 IS SEC. 3. DEFINITIONS. 1 In this Act: 2 (1) ALTERNATIVE ARRANGEMENT.—The term 3 ‘‘alternative arrangement’’ means an arrangement 4 with key support personnel who may include family 5 members, friends, and professionals, with an ap- 6 proach to meeting the needs of an individual to 7 make decisions that restricts fewer rights of the in- 8 dividual than would the appointment of a guardian 9 or conservator. 10 (2) ASSISTIVE TECHNOLOGY DEVICE.—The 11 term ‘‘assistive technology device’’ has the meaning 12 given the term in section 3 of the Assistive Tech- 13 nology Act of 1998 (29 U.S.C. 3002). 14 (3) COVERED INDIVIDUAL.—The term ‘‘covered 15 individual’’ means— 16 (A) an older adult; and 17 (B) a person with a disability. 18 (4) DEVELOPMENTAL DISABILITY.—The term 19 ‘‘developmental disability’’ has the meaning given 20 the term in section 102 of the Developmental Dis- 21 abilities Assistance and Bill of Rights Act of 2000 22 (42 U.S.C. 15002). 23 (5) DISABILITY.—The term ‘‘disability’’ means 24 a disability as defined in section 3 of the Americans 25 with Disabilities Act of 1990 (42 U.S.C. 12102). 26 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1148 IS (6) GUARDIANSHIP.—The term ‘‘guardianship’’ 1 means a legal relationship established by a court if 2 an individual is determined to lack the ability to 3 meet essential requirements for physical health, safe- 4 ty, or self-care because the person is unable to re- 5 ceive and evaluate information, or make or commu- 6 nicate decisions, about their person or property, even 7 with appropriate supportive services, assistive tech- 8 nology devices, supported decisionmaking, or other 9 less restrictive alternative arrangements. 10 (7) INDIAN TRIBE.—The term ‘‘Indian Tribe’’ 11 means an entity that— 12 (A) is eligible for funding as an Indian 13 tribe under subpart 1 of part E of title I of the 14 Omnibus Crime Control and Safe Streets Act of 15 1968 (34 U.S.C. 10151 et seq.); and 16 (B) is— 17 (i) eligible for funding as an Indian 18 tribe under title I of the Rehabilitation Act 19 of 1973 (29 U.S.C. 720 et seq.); or 20 (ii) eligible for funding through an 21 American Indian consortium under subtitle 22 C of title I of the Developmental Disabil- 23 ities Assistance and Bill of Rights Act of 24 2000 (42 U.S.C. 15041 et seq.). 25 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1148 IS (8) LIMITED GUARDIANSHIP.—The term ‘‘lim- 1 ited guardianship’’ means a guardianship in which a 2 court-appointed fiduciary has the power to make de- 3 cisions for an individual, with that power defined by 4 the court and for the duration determined by the 5 court. 6 (9) LOCAL EDUCATIONAL AGENCY; STATE EDU- 7 CATIONAL AGENCY.—The terms ‘‘local educational 8 agency’’ and ‘‘State educational agency’’ have the 9 meanings given the terms in section 8101 of the Ele- 10 mentary and Secondary Education Act of 1965 (20 11 U.S.C. 7801). 12 (10) OLDER ADULT.—The term ‘‘older adult’’ 13 means an individual who is 60 years of age or older. 14 (11) PERSON WITH A DISABILITY.—The term 15 ‘‘person with a disability’’ means any person who 16 has a disability (including a sensory disability). 17 (12) PLENARY GUARDIANSHIP.—The term ‘‘ple- 18 nary guardianship’’ means a guardianship in which 19 a court-appointed fiduciary has the power to make 20 all decisions allowed by State law for an individual, 21 often due to a finding that the individual is incapaci- 22 tated. 23 (13) PROTECTION AND ADVOCACY SYSTEM.— 24 The term ‘‘protection and advocacy system’’ means 25 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1148 IS a protection and advocacy system established in ac- 1 cordance with section 143 of the Developmental Dis- 2 abilities Assistance and Bill of Rights Act of 2000 3 (42 U.S.C. 15043). 4 (14) PROTECTIVE ARRANGEMENT.—The term 5 ‘‘protective arrangement’’ means— 6 (A) an arrangement in which a person, 7 acting under a limited court order authorizing 8 support for an individual who the court has de- 9 termined is in need of decision supports, has 10 the power, for a duration specified in the order, 11 to make such decisions for the individual, with- 12 out a finding of incapacity or the appointment 13 of a guardian or conservator; or 14 (B) a guardianship or conservatorship. 15 (15) SECRETARY.—The term ‘‘Secretary’’ re- 16 fers to the Secretary of Health and Human Services 17 or the designee of that Secretary. 18 (16) STANDARD.—The term ‘‘standard’’ means 19 a requirement. 20 (17) STATE.—The term ‘‘State’’ means any of 21 the several States, the District of Columbia, the 22 Commonwealth of Puerto Rico, the United States 23 Virgin Islands, Guam, the Commonwealth of the 24 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1148 IS Northern Mariana Islands, American Samoa, and 1 any Indian Tribe. 2 (18) SUPPORTED DECISIONMAKING ARRANGE- 3 MENT.—The term ‘‘supported decisionmaking ar- 4 rangement’’ means an agreement or other arrange- 5 ment, resulting from a series of relationships, prac- 6 tices, and shorter arrangements, of greater or lesser 7 formality and intensity, designed to assist an indi- 8 vidual in understanding, making, and commu- 9 nicating the individual’s own decisions in a way that 10 does not impede the individual’s self-determination, 11 including deciding— 12 (A) who provides the individual with sup- 13 ports for the decisions; 14 (B) in which areas of life the individual re- 15 ceives supports, including decisions about 16 health, services received, finances, property, liv- 17 ing arrangements, and work; and 18 (C) with whom to associate through the 19 support of people, technology, and other deci- 20 sionmaking aids. 21 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1148 IS SEC. 4. GUARDIANSHIP AND OTHER PROTECTIVE AR- 1 RANGEMENTS AND SUPPORTED DECISION- 2 MAKING COUNCIL. 3 (a) ESTABLISHMENT OF A GUARDIANSHIP AND 4 OTHER PROTECTIVE ARRANGEMENTS AND SUPPORTED 5 DECISIONMAKING COUNCIL.— 6 (1) ESTABLISHMENT.—Not later than 180 days 7 after the date of enactment of this Act, the Sec- 8 retary shall establish in the Department of Health 9 and Human Services a Guardianship and Other Pro- 10 tective Arrangements and Supported Decision- 11 making Council (referred to in this Act as ‘‘the 12 Council’’). The Council shall advise the Secretary 13 and the Attorney General on the development of 14 standards under sections 5 and 6 related to 15 guardianships, conservatorships, supported decision- 16 making arrangements, and other alternative ar- 17 rangements. 18 (2) MEMBERSHIP.— 19 (A) BACKGROUND.—The Secretary shall 20 appoint members to the Council. The Council 21 shall be composed of 30 members that in- 22 clude— 23 (i) five covered individuals currently 24 (as of the date of appointment) using a 25 supported decisionmaking arrangement; 26 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1148 IS (ii) four covered individuals currently 1 (as of the date of appointment) in a pro- 2 tective arrangement; 3 (iii) three family members of covered 4 individuals who are at risk of being in, or 5 are in, protective arrangements; 6 (iv) two lawyers, including at least 1 7 of whom— 8 (I) is a lawyer who has served a 9 protection and advocacy system or 10 legal services organization; 11 (II) has experience in representa- 12 tion of covered individuals in con- 13 testing or limiting guardianships; and 14 (III) has experience in supported 15 decisionmaking arrangements, other 16 alternative arrangements, and protec- 17 tive arrangements; 18 (v) two judges with experience man- 19 aging contested and uncontested 20 guardianships; 21 (vi) two teachers or special education 22 personnel from an elementary school or 23 secondary school; 24 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1148 IS (vii) two behavioral health care profes- 1 sionals; 2 (viii) one independent living specialist; 3 (ix) two other professionals with ex- 4 tensive knowledge of supported decision- 5 making arrangements; 6 (x) two representatives of disability- 7 led organizations, meaning organizations 8 for which at least 50 percent of the staff 9 have a disability, or 50 percent of the 10 members of the governing body have a dis- 11 ability; 12 (xi) two representatives of organiza- 13 tions representing older adults; 14 (xii) one guardian, who shall be a cer- 15 tified guardian if the State involved pro- 16 vides for such certifications; 17 (xiii) one guardianship investigator; 18 and 19 (xiv) one representative of a State de- 20 velopmental disability agency, State agency 21 on aging, or State adult protective services 22 agency. 23 (B) DIVERSITY.—Members of the Council 24 shall represent diverse racial, ethnic, religious, 25 VerDate Sep 11 2014 00:46 Apr 13, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1148.IS S1148 kjohnson on DSK79L0C42PROD with BILLS 13 •S 1148 IS gender, geographic, socioeconomic, religious, 1 age, and disability categories. 2 (C) PERIOD OF APPOINTMENT; VACAN- 3 CIES.— 4 (i) TERM.—Members shall be ap- 5 pointed for a 3-year term and may be re- 6 [Text truncated for display. Full text available on Congress.gov.]

Important: This plain English summary was generated by AI and is provided for informational purposes only. It is not legal advice. Always consult the official bill text on Congress.gov or a qualified attorney for legal matters.