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

                                                       Calendar No. 450
112th CONGRESS
  2d 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, Mr. Nelson of Florida, Mr. Cornyn, and Mr. 
Coons) introduced the following bill; which was read twice and referred 
                   to the Committee on the Judiciary

                             July 12, 2012

 Reported by Mr. Leahy, with an amendment and an amendment to the title
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 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,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Guardian Accountability and 
Senior Protection Act''.</DELETED>

          <DELETED>TITLE I--STATE COURT IMPROVEMENT</DELETED>

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

<DELETED>    Part A of title IV of the Older Americans Act of 1964 (42 
U.S.C. 3032 et seq.) is amended--</DELETED>
        <DELETED>    (1) in section 411(a)--</DELETED>
                <DELETED>    (A) in the matter preceding paragraph (1), 
                by inserting ``(including the highest court of each 
                State)'' after ``with States'';</DELETED>
                <DELETED>    (B) in paragraph (12), by striking ``; 
                and'' and inserting a semicolon;</DELETED>
                <DELETED>    (C) by redesignating paragraph (13) as 
                paragraph (14); and</DELETED>
                <DELETED>    (D) by inserting after paragraph (12) the 
                following:</DELETED>
        <DELETED>    ``(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</DELETED>
        <DELETED>    (2) by inserting at the end the 
        following:</DELETED>

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

<DELETED>    ``(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--</DELETED>
        <DELETED>    ``(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)--</DELETED>
                <DELETED>    ``(A) that determine whether to impose a 
                full, limited, or temporary adult guardianship or 
                conservatorship;</DELETED>
                <DELETED>    ``(B) that select a guardian of a person 
                or conservator of an estate;</DELETED>
                <DELETED>    ``(C) that review the continued need for a 
                full, limited, or temporary guardianship or 
                conservatorship of an adult; and</DELETED>
                <DELETED>    ``(D) that review the performance of a 
                person appointed as guardian or conservator for an 
                adult;</DELETED>
        <DELETED>    ``(2) to implement changes deemed necessary as a 
        result of the assessments; and</DELETED>
        <DELETED>    ``(3) to collect data regarding those proceedings 
        and the impact of the necessary changes.</DELETED>
<DELETED>    ``(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.</DELETED>
<DELETED>    ``(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.</DELETED>
<DELETED>    ``(d) Use of Grant Funds.--Each highest State court which 
receives funds under this section may use such funds to pay--</DELETED>
        <DELETED>    ``(1) any or all costs of activities under this 
        section in fiscal year 2012; and</DELETED>
        <DELETED>    ``(2) not more than 75 percent of the cost of 
        activities under this section in each of fiscal years 2013, 
        2014, and 2015.''.</DELETED>

             <DELETED>TITLE II--BACKGROUND CHECKS</DELETED>

<DELETED>SEC. 201. DEFINITIONS.</DELETED>

<DELETED>    In this title:</DELETED>
        <DELETED>    (1) Adverse information.--The term ``adverse 
        information'' means--</DELETED>
                <DELETED>    (A) information from a criminal history 
                background check that indicates that the individual has 
                been convicted of a relevant crime;</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (C) information from an adult or child 
                abuse registry that indicates that the individual is 
                included in an adult or child abuse registry.</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (B) a credit union, savings and loan, or 
                other financial institution.</DELETED>
        <DELETED>    (3) Guardian.--The term ``guardian'' means an 
        individual who is appointed by a court to protect an 
        incapacitated individual's personal or financial 
        welfare.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>

<DELETED>SEC. 202. PILOT PROGRAM FOR NATIONAL AND STATE BACKGROUND 
              CHECKS OF GUARDIANS AND CONSERVATORS.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (b) Requirements.--</DELETED>
        <DELETED>    (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).</DELETED>
        <DELETED>    (2) Procedures.--The procedures established by a 
        participating highest State court under paragraph (1) shall be 
        designed to--</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (B) require, as a condition of 
                appointment, that the prospective guardian or 
                conservator--</DELETED>
                        <DELETED>    (i) provide a statement signed by 
                        the prospective guardian or conservator 
                        authorizing the appointing court to request 
                        national and State criminal history background 
                        checks;</DELETED>
                        <DELETED>    (ii) provide the appointing court 
                        with a set of the prospective guardian's or 
                        conservator's fingerprints; and</DELETED>
                        <DELETED>    (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;</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (D) permit the courts hearing guardian or 
                conservatorship matters to obtain State and national 
                criminal history background checks on the prospective 
                guardian or conservator.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (c) Participating States.--</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (2) Requirements.--An agreement entered into under 
        paragraph (1) shall require that a participating highest State 
        court--</DELETED>
                <DELETED>    (A) be responsible for monitoring 
                compliance with the requirements of the pilot 
                program;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (D) keep data on the background checks 
                performed to be readily accessible for the evaluation; 
                and</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (3) Application and selection criteria.--
        </DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (B) Selection criteria.--</DELETED>
                        <DELETED>    (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--
                        </DELETED>
                                <DELETED>    (I) geographic 
                                diversity;</DELETED>
                                <DELETED>    (II) the consideration of 
                                a variety of payment mechanisms for 
                                covering the costs of conducting the 
                                background checks required under the 
                                pilot program; and</DELETED>
                                <DELETED>    (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.</DELETED>
                        <DELETED>    (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.</DELETED>
<DELETED>    (d) Payments.--Of the amounts made available under 
subsection (f) to conduct the pilot program under this section, the 
Attorney General shall--</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (2) reserve up to 4 percent of such amounts to 
        conduct the evaluation required under subsection (e).</DELETED>
<DELETED>    (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--
</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (2) assess the costs of conducting such background 
        checks (including start-up and administrative costs);</DELETED>
        <DELETED>    (3) consider the benefits and disadvantages 
        associated with requiring prospective guardians or conservators 
        to pay the costs of conducting such background 
        checks;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (6) include other elements that would bear on the 
        usefulness and effectiveness of the program.</DELETED>
<DELETED>    (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.</DELETED>

                  <DELETED>TITLE III--E-FILE</DELETED>

<DELETED>SEC. 301. DEFINITIONS.</DELETED>

<DELETED>    In this title:</DELETED>
        <DELETED>    (1) Adult.--The term ``adult'' means an individual 
        who is 18 years of age or older.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (4) Guardian.--The term ``guardian'' means an 
        individual who is appointed by a court to protect an 
        incapacitated individual's personal or financial 
        welfare.</DELETED>
        <DELETED>    (5) Highest state court.--The term ``highest State 
        court'' means the highest appellate court within a 
        State.</DELETED>
        <DELETED>    (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.</DELETED>

<DELETED>SEC. 302. CONSERVATOR MONITORING GRANT PROGRAM.</DELETED>

<DELETED>    (a) Grants.--</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (2) Duration.--Grants awarded under paragraph (1) 
        shall be for a period of not to exceed 3 years.</DELETED>
<DELETED>    (b) Use of Funds.--</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 303. AUTHORIZATION OF APPROPRIATIONS.</DELETED>

<DELETED>    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.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Guardian Accountability and Senior 
Protection Act''.

SEC. 2. ASSESSMENT AND IMPROVEMENT OF RULES AND PROCEDURES RELATING TO 
              ADULT GUARDIANSHIPS AND CONSERVATORSHIPS.

    Section 411 of the Older Americans Act of 1964 (42 U.S.C. 3032) is 
amended--
            (1) in subsection (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) in accordance with subsection (c), assessing the 
        fairness, effectiveness, timeliness, safety, integrity, and 
        accessibility of adult guardianship and conservatorship 
        proceedings, including the appointment and the monitoring of 
        the performance of guardians and conservators, and implementing 
        changes deemed necessary as a result of the assessments; and''; 
        and
            (2) by inserting at the end the following:
    ``(c) Adult Guardianships and Conservatorships.--
            ``(1) Grants.--
                    ``(A) In general.--In awarding grants or contracts 
                under subsection (a)(13), the Assistant Secretary shall 
                obtain feedback from the State Justice Institute in 
                accordance with subparagraph (B) and may consult with 
                the Attorney General, and such grants or contracts 
                shall otherwise comply with this subsection.
                    ``(B) State justice institute.--The Assistant 
                Secretary shall submit to the State Justice Institute 
                recommendations for the awarding of grants or contracts 
                under subsection (a)(13). The Institute shall have 60 
                days in which to submit to the Assistant Secretary the 
                response of the Institute to such recommendations. The 
                Assistant Secretary shall consider such response prior 
                to awarding such grants or contracts.
            ``(2) Grantees and activities.--Grants may be awarded under 
        subsection (a)(13) to the highest court of each State for the 
        purpose of enabling such court, in collaboration with the State 
        unit on aging and State adult protective service agency--
                    ``(A) to conduct assessments of the practices and 
                procedures used to--
                            ``(i) determine whether to impose a full, 
                        limited, or temporary adult guardianship or 
                        conservatorship;
                            ``(ii) select a guardian of a person or 
                        conservator of an estate;
                            ``(iii) review the continued need for a 
                        full, limited, or temporary guardianship or 
                        conservatorship of an adult; and
                            ``(iv) review the performance of guardians 
                        or conservators;
                    ``(B) to implement changes deemed necessary as a 
                result of the assessments; and
                    ``(C) to collect data regarding those practices and 
                procedures and the impact of the necessary changes.
            ``(3) Allotments.--The amount of a grant under subsection 
        (a)(13) shall be determined by the Assistant Secretary, in 
        consultation with the State Justice Institute and the Attorney 
        General (if the Assistance Secretary determines appropriate).
            ``(4) Background checks.--The Assistant Secretary shall set 
        aside 25 percent of amounts made available for grants under 
        this subsection in each fiscal year to enable courts to 
        implement or improve systems to conduct background checks on 
        prospective guardians and conservators. Such systems shall 
        comply with the following requirements:
                    ``(A) At minimum, the background checks shall 
                include national and State criminal background checks, 
                a search of child abuse and adult abuse registries, and 
                a search as to whether the individual has been 
                suspended or disbarred from law, accounting, or other 
                professional licensing for misconduct.
                    ``(B) The court shall consider all of the 
                information obtained from the background check to 
                determine whether such an individual is sufficiently 
                trustworthy to be a guardian or conservator and that 
                the appointment of such individual is in the best 
                interest of the protected person.
                    ``(C) The information obtained from the background 
                check shall only be used for the purpose of determining 
                the suitability of the prospective guardian or 
                conservator for appointment.
            ``(5) Electronic filing.--Funds received pursuant to 
        subsection (a)(13) may be used to implement systems enabling 
        the annual accountings and other required conservatorship and 
        guardianship filings to be completed, filed, and reviewed 
        electronically in order to simplify the filing process for 
        conservators and guardians, and better enable the courts to 
        identify discrepancies and detect fraud and the exploitation of 
        protected persons.
            ``(6) Evaluation and report.--The Assistant Secretary, in 
        consultation with the Attorney General and the State Justice 
        Institute, shall conduct an evaluation of the improvements made 
        by courts to which this subsection applies, and prepare and 
        submit a report concerning such evaluation to Congress within 
        18 months of the date on which the first grant is awarded under 
        subsection (a)(13), and a second report 18 months later, and 
        shall use and distribute the reports and evaluations as the 
        Assistant Secretary, in consultation with the Attorney General 
        and the State Justice Institute, determines appropriate in 
        order to improve guardianships and conservatorships 
        nationwide.''.
            Amend the title so as to read: ``A bill to enable State 
        courts to assess and improve the rules and procedures relating 
        to adult guardianships and conservatorships.''.
                                                       Calendar No. 450

112th CONGRESS

  2d Session

                                S. 1744

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                             July 12, 2012

        Reported with an amendment and an amendment to the title