[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1744 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1744

To provide funding for State courts to assess and improve the handling 
 of proceedings relating to adult guardianship and conservatorship, to 
  authorize the Attorney General to carry out a pilot program for the 
    conduct of background checks on individuals to be appointed as 
 guardians or conservators, and to promote the widespread adoption of 
      information technology to better monitor, report, and audit 
                 conservatorships of protected persons.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 20, 2011

 Ms. Klobuchar (for herself and Mr. Nelson of Florida) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
To provide funding for State courts to assess and improve the handling 
 of proceedings relating to adult guardianship and conservatorship, to 
  authorize the Attorney General to carry out a pilot program for the 
    conduct of background checks on individuals to be appointed as 
 guardians or conservators, and to promote the widespread adoption of 
      information technology to better monitor, report, and audit 
                 conservatorships of protected persons.

    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 ``Guardian Accountability and Senior 
Protection Act''.

                    TITLE I--STATE COURT IMPROVEMENT

SEC. 101. FUNDING FOR STATE COURTS TO ASSESS AND IMPROVE HANDLING OF 
              PROCEEDINGS RELATING TO ADULT GUARDIANSHIP AND 
              CONSERVATORSHIP.

    Part A of title IV of the Older Americans Act of 1964 (42 U.S.C. 
3032 et seq.) is amended--
            (1) in section 411(a)--
                    (A) in the matter preceding paragraph (1), by 
                inserting ``(including the highest court of each 
                State)'' after ``with States'';
                    (B) in paragraph (12), by striking ``; and'' and 
                inserting a semicolon;
                    (C) by redesignating paragraph (13) as paragraph 
                (14); and
                    (D) by inserting after paragraph (12) the 
                following:
            ``(13) assessing the fairness, effectiveness, timeliness, 
        and accessibility of adult guardianship and conservatorship 
        proceedings, implementing changes deemed necessary as a result 
        of the assessments, and collecting necessary data regarding 
        those proceedings and the impact of the necessary changes; 
        and''; and
            (2) by inserting at the end the following:

``SEC. 423. FUNDING FOR STATE COURTS TO ASSESS AND IMPROVE HANDLING OF 
              PROCEEDINGS RELATING TO ADULT GUARDIANSHIP AND 
              CONSERVATORSHIP.

    ``(a) In General.--The Assistant Secretary, in consultation with 
the Attorney General, shall make grants, in accordance with this 
section, to the highest court of a State for the purpose of enabling 
such a court, in collaboration with the State unit on aging--
            ``(1) to conduct assessments, in accordance with such 
        requirements as the Secretary shall publish, of the role, 
        responsibilities, and effectiveness of State courts in carrying 
        out State laws requiring proceedings (conducted by or under the 
        supervision of the courts)--
                    ``(A) that determine whether to impose a full, 
                limited, or temporary adult guardianship or 
                conservatorship;
                    ``(B) that select a guardian of a person or 
                conservator of an estate;
                    ``(C) that review the continued need for a full, 
                limited, or temporary guardianship or conservatorship 
                of an adult; and
                    ``(D) that review the performance of a person 
                appointed as guardian or conservator for an adult;
            ``(2) to implement changes deemed necessary as a result of 
        the assessments; and
            ``(3) to collect data regarding those proceedings and the 
        impact of the necessary changes.
    ``(b) Applications.--In order to be eligible for a grant under this 
section, a highest State court shall submit to the Assistant Secretary 
an application at such time, in such form, and including such 
information and assurances as the Assistant Secretary shall require.
    ``(c) Allotments.--Each highest State court which has an 
application approved under subsection (b), and is conducting assessment 
activities in accordance with this section, may receive a grant from 
the Assistant Secretary, for each of fiscal years 2012 through 2015, 
from amounts appropriated to carry out section 411, in an amount to be 
determined appropriate by the Assistant Secretary.
    ``(d) Use of Grant Funds.--Each highest State court which receives 
funds under this section may use such funds to pay--
            ``(1) any or all costs of activities under this section in 
        fiscal year 2012; and
            ``(2) not more than 75 percent of the cost of activities 
        under this section in each of fiscal years 2013, 2014, and 
        2015.''.

                      TITLE II--BACKGROUND CHECKS

SEC. 201. DEFINITIONS.

    In this title:
            (1) Adverse information.--The term ``adverse information'' 
        means--
                    (A) information from a criminal history background 
                check that indicates that the individual has been 
                convicted of a relevant crime;
                    (B) information that the individual has been 
                judicially determined to have committed abuse, 
                abandonment, neglect, or financial or sexual 
                exploitation of a child, spouse, or other adult; and
                    (C) information from an adult or child abuse 
                registry that indicates that the individual is included 
                in an adult or child abuse registry.
            (2) Conservator.--The term ``conservator'' means an 
        individual who is appointed by a court under applicable State 
        law to manage the estate of a protected person. Such definition 
        shall not apply to--
                    (A) a bank with trust powers, bank and trust 
                company, or trust company organized under the laws of 
                any State or of the United States and which is 
                regulated by the commissioner of commerce or a Federal 
                regulator; or
                    (B) a credit union, savings and loan, or other 
                financial institution.
            (3) Guardian.--The term ``guardian'' means an individual 
        who is appointed by a court to protect an incapacitated 
        individual's personal or financial welfare.
            (4) Protected person.--The term ``protected person'' means 
        an adult whom the court determines in a guardian or 
        conservatorship proceeding is unable to manage property and 
        accounts.
            (5) Relevant crime.--The term ``Relevant crime'' includes 
        any felony or misdemeanor conviction for abuse, neglect, fraud, 
        misappropriation, misrepresentation, theft, conversion, or 
        other financial crime, or such other types of offenses as a 
        participating highest court of a State may specify for purposes 
        of conducting the pilot program in such State.

SEC. 202. PILOT PROGRAM FOR NATIONAL AND STATE BACKGROUND CHECKS OF 
              GUARDIANS AND CONSERVATORS.

    (a) Authority To Conduct Program.--The Attorney General, shall 
establish a pilot program to identify efficient, effective, and 
economical procedures for State courts to conduct background checks on 
prospective guardians and conservators.
    (b) Requirements.--
            (1) Requirement to conduct background checks.--Under the 
        pilot program under subsection (a), a State court, prior to 
        appointing a prospective guardian or conservator on or after 
        the commencement date of the State pilot program, shall conduct 
        a background check on the guardian or conservator in accordance 
        with such procedures as the participating State shall establish 
        pursuant to paragraph (2).
            (2) Procedures.--The procedures established by a 
        participating highest State court under paragraph (1) shall be 
        designed to--
                    (A) provide a prospective guardian or conservator 
                with notice that the appointing court is required to 
                perform background checks with respect to prospective 
                guardians or conservators;
                    (B) require, as a condition of appointment, that 
                the prospective guardian or conservator--
                            (i) provide a statement signed by the 
                        prospective guardian or conservator authorizing 
                        the appointing court to request national and 
                        State criminal history background checks;
                            (ii) provide the appointing court with a 
                        set of the prospective guardian's or 
                        conservator's fingerprints; and
                            (iii) provide information as to whether the 
                        individual has been suspended or disbarred from 
                        law, accounting, or other professional 
                        licensing for misconduct involving financial 
                        matters that affect the ability of the 
                        individual to provide the services of a 
                        guardian or conservator safely and competently;
                    (C) permit the courts to check any available State 
                and national registries that would be likely to contain 
                adverse information concerning a prospective guardian 
                or conservator; and
                    (D) permit the courts hearing guardian or 
                conservatorship matters to obtain State and national 
                criminal history background checks on the prospective 
                guardian or conservator.
            (3) Consideration of information.--Prior to appointing an 
        individual with respect to whom adverse information is 
        available as a guardian or conservator under a program under 
        this title, the appointing court shall consider the nature of 
        the information or offense involved, the date of any offense, 
        and evidence of the proposed guardian's or conservator's 
        rehabilitation and determine whether the individual's 
        appointment is in the best interest of the protected person.
            (4) Use of information; immunity from liability.--A 
        participating highest State court shall ensure that information 
        obtained about the prospective guardian or conservator pursuant 
        to a background check conducted under the State supreme court 
        pilot program is used only for the purpose of determining the 
        suitability of the prospective guardian or conservator for 
        appointment.
    (c) Participating States.--
            (1) In general.--The Attorney General shall enter into 
        agreements with not more than 5 States to conduct the pilot 
        program under this section in such States.
            (2) Requirements.--An agreement entered into under 
        paragraph (1) shall require that a participating highest State 
        court--
                    (A) be responsible for monitoring compliance with 
                the requirements of the pilot program;
                    (B) have procedures by which a prospective guardian 
                or conservator may appeal or dispute the accuracy of 
                the information obtained in a background check, 
                including consideration of the nature of the 
                information or offense involved, the date of offense, 
                and the evidence of the prospective guardian's or 
                conservator's rehabilitation;
                    (C) establish procedures requiring the courts 
                hearing guardian or conservatorship matters to request 
                criminal history background checks of prospective 
                guardians or conservators and review the results of any 
                State or national criminal history background check 
                regarding a prospective guardian or conservator to 
                determine whether the prospective guardian or 
                conservator has any conviction for a relevant crime;
                    (D) keep data on the background checks performed to 
                be readily accessible for the evaluation; and
                    (E) agree to obtain from the State, non-Federal 
                contributions, in cash or in-kind, toward the costs of 
                carrying out the pilot program in an amount equal to 
                not less than $1 for each $4 of Federal funds provided 
                to the court under this section.
            (3) Application and selection criteria.--
                    (A) Application.--The highest State court seeking 
                to participate in the pilot program established under 
                this section, shall submit an application to the 
                Attorney General containing such information and at 
                such time as the Attorney General may specify.
                    (B) Selection criteria.--
                            (i) In general.--In selecting highest State 
                        court to participate in the pilot program under 
                        this section, the Attorney General shall 
                        establish criteria to ensure--
                                    (I) geographic diversity;
                                    (II) the consideration of a variety 
                                of payment mechanisms for covering the 
                                costs of conducting the background 
                                checks required under the pilot 
                                program; and
                                    (III) that at least one 
                                participating highest State court 
                                includes protected person abuse 
                                prevention training for prospective 
                                guardians or conservators as part of 
                                the pilot program conducted in that 
                                State.
                            (ii) Inclusion of states with existing 
                        programs.--Nothing in this section shall be 
                        construed as prohibiting any State which, as of 
                        the date of the enactment of this Act, has 
                        procedures for conducting background checks 
                        with respect to the appointment of guardians or 
                        conservators from being selected to participate 
                        in the pilot program conducted under this 
                        section.
    (d) Payments.--Of the amounts made available under subsection (f) 
to conduct the pilot program under this section, the Attorney General 
shall--
            (1) make payments to participating highest State courts for 
        the costs of conducting the pilot program in such States which 
        may include the administration of the pilot program, staffing, 
        the cost of background checks, and other purposes as determined 
        by the Attorney General; and
            (2) reserve up to 4 percent of such amounts to conduct the 
        evaluation required under subsection (e).
    (e) Evaluation.--The Attorney General shall, through grant, 
contract, or interagency agreement, conduct an evaluation of the pilot 
program conducted under this section. Such evaluation should--
            (1) review the various procedures implemented by 
        participating highest State courts for the conduct of 
        background checks of prospective guardians or conservators and 
        identify the most efficient, effective, and economical 
        procedures for conducting such background checks;
            (2) assess the costs of conducting such background checks 
        (including start-up and administrative costs);
            (3) consider the benefits and disadvantages associated with 
        requiring prospective guardians or conservators to pay the 
        costs of conducting such background checks;
            (4) determine the extent to which conducting such 
        background checks leads to any unintended consequences, 
        including a reduction in the available guardians or 
        conservators or delay and backlogs in processing appointments;
            (5) to the extent feasible, seek to determine the efficacy 
        of the pilot program in reducing abuse of protected persons and 
        their estate by guardians or conservators; and
            (6) include other elements that would bear on the 
        usefulness and effectiveness of the program.
    (f) Funding.--There are authorized to be appropriated to the 
Attorney General to carry out the pilot program under this section, 
such sums as may be necessary for the period of fiscal years 2012 
through 2015.

                           TITLE III--E-FILE

SEC. 301. DEFINITIONS.

    In this title:
            (1) Adult.--The term ``adult'' means an individual who is 
        18 years of age or older.
            (2) Conservator.--The term ``conservator'' means an 
        individual who is appointed by a court under applicable State 
        law to manage the estate of a protected person.
            (3) Exploitation.--The term ``exploitation'' means the 
        fraudulent or otherwise illegal, unauthorized, or improper act 
        or process of a conservator that uses the resources of a 
        protected person for the conservator's monetary or personal 
        benefit, profit, or gain, or that results in depriving a 
        protected person of rightful access to, or use of, benefits, 
        resources, belongings, services or assets.
            (4) Guardian.--The term ``guardian'' means an individual 
        who is appointed by a court to protect an incapacitated 
        individual's personal or financial welfare.
            (5) Highest state court.--The term ``highest State court'' 
        means the highest appellate court within a State.
            (6) Protected person.--The term ``protected person'' means 
        an adult whom the court determines in a guardian or 
        conservatorship proceeding is unable to manage property and 
        accounts.

SEC. 302. CONSERVATOR MONITORING GRANT PROGRAM.

    (a) Grants.--
            (1) In general.--The State Justice Institute, pursuant to 
        the authority provided in the State Justice Institute Act of 
        1984 (42 U.S.C. 10701 et seq.), may award grants to eligible 
        highest State courts to assist in improving conservator 
        monitoring efforts through electronic filing.
            (2) Duration.--Grants awarded under paragraph (1) shall be 
        for a period of not to exceed 3 years.
    (b) Use of Funds.--
            (1) In general.--Amounts received under a grant awarded 
        under subsection (a) shall be used to implement and evaluate 
        the impact of systems enabling the annual accountings and other 
        required conservatorship filings to be completed, filed, 
        reviewed, and analyzed electronically in order to simplify the 
        filing process for conservators and better enable the courts to 
        identify discrepancies and detect fraud and exploitation of 
        protected persons.
            (2) Allocation.--A highest State court that receives a 
        grant under this section shall prioritize the use of the grant 
        funds so as to assist the greatest number of conservators and 
        protect the greatest number of protected persons.
    (c) Application.--A highest State court desiring a grant under 
subsection (a)(1) shall submit an application to the State Justice 
Institute at such time, in such manner, and accompanied by such 
information as the State Justice Institute may require.

SEC. 303. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated to the State Justice 
Institute to carry out the activities under this title, such sums as 
may be necessary for the period of fiscal years 2012 through 2015.
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