[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 655 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 655

  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

                             April 25, 1997

   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.

    Be it enacted by the Senate and House of Representatives 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 1997''.

SEC. 2. GUARDIANSHIP REQUIREMENTS FOR STATE MEDICAID PLANS.

    (a) Guardianship Requirements as Condition of Eligibility.--Section 
1902(a) of the Social Security Act (42 U.S.C. 1396a(a)) is amended--
            (1) in paragraph (62), by striking ``and'' at the end;
            (2) in paragraph (63), by striking the period and inserting 
        ``; and''; and
            (3) by inserting after paragraph (63) the following new 
        paragraph:
            ``(64) not later than 2 years after the date of enactment 
        of this paragraph, provide assurances that the State has 
        adopted, and assumed responsibility for enforcing, laws 
        relating to guardianship which meet the requirements of section 
        1932.''.
    (b) Reduction of Payments to States for Failure To Adopt and 
Enforce Certain Laws Relating to Guardianship.--Section 1903 of the 
Social Security Act (42 U.S.C. 1396b) is amended by adding at the end 
the following:
    ``(x)(1) In order to receive payments under paragraphs (2)(A) and 
(7) of subsection (a) without being subject to the reductions set forth 
in paragraph (2) of this subsection, a State shall adopt and assume 
responsibility for enforcing, laws relating to guardianship which meet 
the requirements of section 1932 on or before the expiration of the 2-
year period beginning on the date of enactment of this subsection.
    ``(2)(A) Subject to subparagraph (B), if a State fails to meet the 
deadline established under paragraph (1), the percentages specified in 
paragraphs (2)(A) and (7) of subsection (a) with respect to that State 
shall each be reduced--
            ``(i) for the first 2 quarters beginning on or after such 
        deadline, 5 percentage points; and
            ``(ii) thereafter, for any period consisting of 2 
        consecutive quarters during which the Secretary determines that 
        the State fails to meet the requirements of paragraph (1), 5 
        additional percentage points.
    ``(B) With respect to the percentages specified in paragraphs 
(2)(A) and (7) of subsection (a)--
            ``(i) such percentages shall not be reduced more than 25 
        percentage points by reason of subparagraph (A); and
            ``(ii) no reduction shall be made under subparagraph (A) 
        for any quarter following the quarter during which a State 
        satisfies the requirements of paragraph (1).''.
    (c) Description of Requirements.--Title XIX of the Social Security 
Act (42 U.S.C. 1396 et seq.) is amended--
            (1) by redesignating section 1932 as section 1933; and
            (2) by inserting after section 1931 the following new 
        section:

``SEC. 1932. REQUIREMENTS FOR STATE GUARDIANSHIP LAWS.

    ``(a) In General.--For purposes of sections 1902(a)(64) 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 regulations) which--
            ``(1) include the rights, standards, and duties described 
        in subsections (b) through (l); or
            ``(2) protect individuals in the State as effectively as 
        laws (or regulations) which include the rights, standards, and 
        duties described in such subsections (as determined by the 
        Secretary).
    ``(b) Rights of Individuals Subject to Guardianship 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 proceedings, including a copy of the 
        guardianship petition, 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 description of such rights and 
        information);
            ``(2) a copy of the notice provided under paragraph (1) 
        shall be provided to the individual filing a guardianship 
        petition and to the nonfiling spouse, child, sibling, 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 individual with respect to such petition 
        unless such individual 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 determination and order is issued, and may at any time 
        petition the court issuing such determination and order to 
        modify or dismiss such determination or order.
    ``(c) Standards for Determinations of Incapacity.--The laws of the 
State shall provide that no determination of incapacity shall be made 
at a guardianship hearing--
            ``(1) unless--
                    ``(A) the individual who is the subject of the 
                guardianship petition is present at such hearing; or
                    ``(B) the court determines, 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 individual has knowingly and 
                voluntarily waived the right to be present at the 
                hearing or cannot be present because of physical 
                incapacity; and
            ``(2) on the basis of the age of the individual who is the 
        subject of the guardianship petition but shall instead be made 
        on the basis of clear and convincing evidence that such 
        individual is incapable of administering the individual's own 
        affairs.
    ``(d) Standards for Personnel Involved in Guardianship Hearings; 
Schedule of Hearings.--The laws of the State shall provide that court 
personnel in the State involved in guardianship hearings shall--
            ``(1) be trained to work with the elderly, the 
        developmentally disabled, and the mentally retarded;
            ``(2) be briefed on general issues facing the individuals 
        described in paragraph (1);
            ``(3) provide necessary visual aids, interpreters, and 
        other devices in order to assist the individuals described in 
        paragraph (1) during guardianship hearings; and
            ``(4) make reasonable efforts to schedule each guardianship 
        hearing at a time and location convenient for the individual 
        who is the subject of the guardianship petition.
    ``(e) Effect of Determination of Incapacity.--The laws of the State 
shall provide that 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 feasible, have the 
        personal preferences of such ward taken into account 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 functional limitations, and shall retain all 
        rights not ordered by the court to be transferred to the 
        guardian.
    ``(g) Standards for Guardianships.--The laws of the State shall 
provide that 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 Guardians.--The laws of the 
State shall provide that--
            ``(1) no individual may be appointed to serve as a guardian 
        in the State unless the individual certifies that such 
        individual has completed, or agrees to enroll in and complete, 
        a program of court-supervised training in the legal, economic, 
        and psychosocial needs of wards, based upon standards developed 
        by the chief executive officer of the State;
            ``(2) a guardian shall be removed from the guardian's 
        position if the court determines that the guardian has failed 
        to complete a training program described in paragraph (1);
            ``(3) no individual who has been convicted of a felony 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
            ``(4) no individual may be appointed to serve as a guardian 
        in the State unless such individual has filed, and the court 
        conducting the guardianship hearing has approved, a 
        guardianship plan which includes--
                    ``(A) a description of the ward's proposed living 
                arrangements;
                    ``(B) a plan for meeting the ward's financial, 
                medical, and other remedial needs; and
                    ``(C) 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 annual 
        report with the court which issued the order giving such 
        guardian control over the ward's affairs which includes--
                    ``(A) a description of the management of the ward's 
                finances during the previous year;
                    ``(B) a physician's report on the health and 
                physical well-being of the ward; and
                    ``(C) a recommendation as to 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 the guardian has control 
        only for the administration of the guardianship and the benefit 
        of the ward, and shall repay to the ward's estate any funds 
        used by such guardian for any purpose determined to be improper 
        by the court which issued the order giving such guardian 
        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 
        residence.
    ``(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 guardianship and shall provide that court with necessary 
        files and background information on the guardianship; and
            ``(2) upon receiving notice from a court in another 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 guardianship, and may require the guardian to submit a new 
        petition for guardianship or any other supplementary 
        information to enable the court to exercise such jurisdiction.
    ``(k) Court Review of Guardianship Orders.--The laws of the State 
shall provide that each court in the State which issues a guardianship 
order shall conduct an annual review of the guardianship to determine 
whether the guardian is performing the guardian's duties in accordance 
with the appropriate laws and whether the guardianship should be 
continued, modified, or terminated.
    ``(l) Standards for Private Professional Guardians.--The laws of 
the State shall provide that each private professional guardian in a 
State may operate in the State only if such guardian is bonded and 
licensed or certified in accordance with requirements consistent with 
the provisions of this section developed by the chief executive officer 
of the State.
    ``(m) Definitions.--For purposes of this section--
            ``(1) the term `guardian'--
                    ``(A) means an individual vested by law with the 
                power and duty of taking care of the person or property 
                of another individual who--
                            ``(i) is 18 years or older; and
                            ``(ii) has been determined to be incapable 
                        of administering such individual's own affairs; 
                        but
                    ``(B) does not include a guardian ad litem;
            ``(2) the term `guardianship'--
                    ``(A) means any legal relationship, including a 
                conservatorship, in which an individual is vested by 
                law with the power and duty of taking care of the 
                person or property of a ward; but
                    ``(B) does not include a guardianship ad litem; and
            ``(3) the term `ward' means an individual 18 years or older 
        who has been--
                    ``(A) determined to be incapable of administering 
                such individual's own affairs; and
                    ``(B) placed by a court under the care of a 
                guardian.''.

SEC. 3. DEMONSTRATION GRANTS FOR GUARDIANSHIP ADVOCATE PROGRAMS.

    (a) In General.--The Secretary of Health and Human Services (in 
this section referred to as the ``Secretary'') shall award 2-year 
demonstration grants to eligible States (as determined under subsection 
(c)) for the establishment and operation of guardianship advocate 
programs, including the hiring and training of individuals to serve as 
guardianship advocates and investigators in such programs.
    (b) Duties of Advocates and Investigators.--Individuals hired and 
trained to serve as guardianship advocates and investigators with funds 
provided under subsection (a) shall serve as employees of the courts 
within the State which conduct guardianship hearings and issue 
determinations of incapacity and guardianship orders, and shall provide 
information and services to wards and to individuals who are the 
subjects of guardianship petitions, including--
            (1) making reports to the court on individuals who are the 
        subjects of guardianship petitions;
            (2) notifying such individuals of their rights under State 
        guardianship law;
            (3) monitoring wards and guardians and notifying the court 
        of possible violations of State guardianship law;
            (4) investigating complaints of improper conduct made 
        against guardians;
            (5) providing advice and assistance to guardians in 
        carrying out their guardianships;
            (6) evaluating reports from guardians;
            (7) performing other services to assist the courts in 
        conducting and monitoring guardianships; and
            (8) investigating and evaluating the movement of wards to 
        new residences.
    (c) Eligibility.--A State shall be eligible to receive a grant 
under subsection (a) if it submits an application to the Secretary at 
such time, in such form, and containing such information and assurances 
as the Secretary may require, including an assurance that the State 
shall prepare and submit to the Secretary an evaluation of each program 
in the State that is funded with a grant received under subsection (a).
    (d) Preference to Self-Financing Programs.--In awarding grants 
under subsection (a), the Secretary shall give preference to those 
States that provide assurances to the Secretary that the program funded 
with such a grant will, without Federal financial assistance, continue 
to operate after the expiration of the grant.
    (e) Report to Congress.--Not later than 3 years after the final 
grant is awarded under subsection (a), the Secretary shall submit a 
report to Congress--
            (1) describing the programs funded with such grants;
            (2) evaluating the effect of such programs on the 
        guardianship process and on the protection of the rights of 
        wards and individuals subject to guardianship petitions; and
            (3) containing recommendations on the desirability of 
        continuing the funding of such programs on a permanent basis.
    (f) Authorization of Appropriations.--There are authorized to be 
appropriated $5,000,000 for grants under subsection (a). Any amounts 
appropriated pursuant to the authority of this subsection shall remain 
available until expended.
    (g) Definition.--In this section, the term ``State'' means each of 
the 50 States, the District of Columbia, the Commonwealth of Puerto 
Rico, the Virgin Islands, Guam, American Samoa, and the Northern 
Mariana Islands.
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