[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 4247 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
2d Session
S. 4247
To establish rights for people being considered for and in protective
arrangements, including guardianships and conservatorships, or other
arrangements, to provide decision supports.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 26, 2026
Ms. Duckworth (for herself, Mr. Sanders, and Mr. Fetterman) 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 decision supports.
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 Bill of Rights Act of
2026''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) At least 1,300,000 people in the United States are in
some type of guardianship or other protective arrangement.
(2) A majority of guardianships are plenary and strip
almost all rights from individuals, with the restoration of
rights being very rare.
(3) Guardianship can have grave implications limiting the
liberty of people in such an arrangement.
(4) Overbroad, restrictive, and unnecessary guardianships,
conservatorships, and other protective arrangements can
dramatically curtail the rights of older adults and persons
with disabilities.
(5) A person who is being considered for a protective
arrangement, or is in a protective arrangement, including an
individual in a guardianship or conservatorship, has a set of
fundamental rights including--
(A) a right, prior to the imposition of a
protective arrangement, to exhaust less restrictive
alternative arrangements for supports;
(B)(i) a right to an alternative arrangement, for
anyone who needs decision supports but does not need a
guardianship or conservatorship; and
(ii) a right to a supported decisionmaking
arrangement for anyone who needs decision supports,
whether being considered for or in a protective
arrangement;
(C) a right to an independent, qualified lawyer
who--
(i) speaks solely for the person who is
being considered for a guardianship or other
protective arrangement, or who is in a
protective arrangement;
(ii) is free of a conflict of interest with
the person's family members, and the
corresponding governmental entities, social
service agencies, and courts;
(iii) represents the expressed wishes of
the person who is being considered for or who
is in a protective arrangement;
(iv) is compensated at a reasonable fee
through the use of public funds, if the person
is not able to pay; and
(v) is appointed by the court involved, if
the person does not prefer to have a lawyer of
the person's own choosing;
(D) the right to significant input and full
participation into decisions about their life,
including their health, education, finances,
employment, housing, relationships, parenthood,
politics, religious activities, and social activities,
and other basic decisions affecting their life;
(E) if in a protective arrangement, the right to a
reasonable, timely method and information for
reviewing, modifying, and discontinuing the protective
arrangement;
(F) if in a protective arrangement, the right to,
at a minimum, an annual meaningful review of their
protective arrangement that includes representation by
a lawyer described in subparagraph (C); and
(G) a right to the least restrictive arrangement to
provide support to a covered individual needing
decision supports.
(b) Purpose.--The purpose of this Act is to create a process to
establish a bill of rights for covered individuals who are being
considered for or who are in a guardianship, conservatorship, supported
decisionmaking arrangement, or other alternative arrangement, regarding
the decisions of the individuals to ensure the fundamental rights of
each such individual are protected and the individual has significant
input into arrangements of the types described in this subsection.
SEC. 3. DEFINITIONS.
In this Act:
(1) Alternative arrangement.--The term ``alternative
arrangement'' means an arrangement with key support personnel
who may include family members, friends, and professionals,
with an approach to meeting the needs of an individual to make
decisions that restricts fewer rights of the individual than
would the appointment of a guardian or conservator.
(2) Assistive technology device.--The term ``assistive
technology device'' has the meaning given the term in section 3
of the Assistive Technology Act of 1998 (29 U.S.C. 3002).
(3) Covered individual.--The term ``covered individual''
means--
(A) an older adult; and
(B) a person with a disability.
(4) Developmental disability.--The term ``developmental
disability'' has the meaning given the term in section 102 of
the Developmental Disabilities Assistance and Bill of Rights
Act of 2000 (42 U.S.C. 15002).
(5) Disability.--The term ``disability'' means a disability
as defined in section 3 of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12102).
(6) Guardianship.--The term ``guardianship'' means a legal
relationship established by a court if an individual is
determined to lack the ability to meet essential requirements
for physical health, safety, or self-care because the person is
unable to receive and evaluate information, or make or
communicate decisions, about their person or property, even
with appropriate supportive services, assistive technology
devices, supported decisionmaking, or other less restrictive
alternative arrangements.
(7) Indian tribe.--The term ``Indian Tribe'' means an
entity that--
(A) is eligible for funding as an Indian tribe
under subpart 1 of part E of title I of the Omnibus
Crime Control and Safe Streets Act of 1968 (34 U.S.C.
10151 et seq.); and
(B) is--
(i) eligible for funding as an Indian tribe
under title I of the Rehabilitation Act of 1973
(29 U.S.C. 720 et seq.); or
(ii) eligible for funding through an
American Indian consortium under subtitle C of
title I of the Developmental Disabilities
Assistance and Bill of Rights Act of 2000 (42
U.S.C. 15041 et seq.).
(8) Limited guardianship.--The term ``limited
guardianship'' means a guardianship in which a court-appointed
fiduciary has the power to make decisions for an individual,
with that power defined by the court and for the duration
determined by the court.
(9) Local educational agency; state educational agency.--
The terms ``local educational agency'' and ``State educational
agency'' have the meanings given the terms in section 8101 of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801).
(10) Older adult.--The term ``older adult'' means an
individual who is 60 years of age or older.
(11) Person with a disability.--The term ``person with a
disability'' means any person who has a disability (including a
sensory disability).
(12) Plenary guardianship.--The term ``plenary
guardianship'' means a guardianship in which a court-appointed
fiduciary has the power to make all decisions allowed by State
law for an individual, often due to a finding that the
individual is incapacitated.
(13) Protection and advocacy system.--The term ``protection
and advocacy system'' means a protection and advocacy system
established in accordance with section 143 of the Developmental
Disabilities Assistance and Bill of Rights Act of 2000 (42
U.S.C. 15043).
(14) Protective arrangement.--The term ``protective
arrangement'' means--
(A) an arrangement in which a person, acting under
a limited court order authorizing support for an
individual who the court has determined is in need of
decision supports, has the power, for a duration
specified in the order, to make such decisions for the
individual, without a finding of incapacity or the
appointment of a guardian or conservator; or
(B) a guardianship or conservatorship.
(15) Secretary.--The term ``Secretary'' refers to the
Secretary of Health and Human Services or the designee of that
Secretary.
(16) Standard.--The term ``standard'' means a requirement.
(17) State.--The term ``State'' means any of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the United States Virgin Islands, Guam, the Commonwealth
of the Northern Mariana Islands, American Samoa, and any Indian
Tribe.
(18) Supported decisionmaking arrangement.--The term
``supported decisionmaking arrangement'' means an agreement or
other arrangement, resulting from a series of relationships,
practices, and shorter arrangements, of greater or lesser
formality and intensity, designed to assist an individual in
understanding, making, and communicating the individual's own
decisions in a way that does not impede the individual's self-
determination, including deciding--
(A) who provides the individual with supports for
the decisions;
(B) in which areas of life the individual receives
supports, including decisions about health, services
received, finances, property, living arrangements, and
work; and
(C) with whom to associate through the support of
people, technology, and other decisionmaking aids.
SEC. 4. GUARDIANSHIP AND OTHER PROTECTIVE ARRANGEMENTS AND SUPPORTED
DECISIONMAKING COUNCIL.
(a) Establishment of a Guardianship and Other Protective
Arrangements and Supported Decisionmaking Council.--
(1) Establishment.--Not later than 180 days after the date
of enactment of this Act, the Secretary shall establish in the
Department of Health and Human Services a Guardianship and
Other Protective Arrangements and Supported Decisionmaking
Council (referred to in this Act as ``the Council'').
(2) Duties of the council.--The Council shall advise the
Secretary on the development of standards under section 5
related to guardianships, conservatorships, supported
decisionmaking arrangements, and other alternative
arrangements, including recommending standards on the
fundamental rights (including the implementation of those
rights) of a covered individual in a guardianship,
conservatorship, supported decisionmaking arrangement, or other
alternative arrangement.
(3) Guardianship bill of rights.--The Council's
recommendations for those standards on the fundamental rights
of a covered individual in a guardianship, conservatorship,
supported decisionmaking arrangement, or other alternative
arrangement (commonly known as the ``Guardianship Bill of
Rights'') shall address, at minimum--
(A) the scope of the fundamental rights, including
the fundamental rights described in section 2(a)(5);
(B) which fundamental rights cannot be restricted,
which can be restricted but not delegated, and which
can be restricted but only with further due process
protections;
(C) due process protections to be provided, during
consideration of an arrangement, to protect the
fundamental rights;
(D) the fundamental rights related to--
(i) voting access and decisionmaking;
(ii) decisionmaking concerning marriage and
other relationships, including romantic,
friendship, and family relationships;
(iii) reproductive decisionmaking;
(iv) financial decisionmaking on matters
that do not jeopardize long-term security;
(v) educational decisionmaking;
(vi) health and medical decisionmaking,
including the right to private communication
between an individual and the individual's
health care provider;
(vii) decisionmaking for religious
observation and activities;
(viii) decisionmaking concerning a place of
residency;
(ix) decisionmaking for visitation and
association;
(x) decisionmaking for travel;
(xi) communication; and
(xii) decisionmaking for daily decisions;
and
(E) maintenance of a covered individual's
fundamental rights in their decisionmaking.
(4) Membership.--
(A) Background.--The Secretary shall appoint
members to the Council. The Council shall be composed
of 30 members that include--
(i) five covered individuals currently (as
of the date of appointment) using a supported
decisionmaking arrangement;
(ii) four covered individuals currently (as
of the date of appointment) in a protective
arrangement;
(iii) three family members of covered
individuals who are at risk of being in, or are
in, protective arrangements;
(iv) two lawyers, including at least 1 of
whom--
(I) is a lawyer who has served a
protection and advocacy system or legal
services organization;
(II) has experience in
representation of covered individuals
in contesting or limiting
guardianships; and
(III) has experience in supported
decisionmaking arrangements, other
alternative arrangements, and
protective arrangements;
(v) two judges with experience managing
contested and uncontested guardianships;
(vi) two teachers or special education
personnel from an elementary school or
secondary school;
(vii) two behavioral health care
professionals;
(viii) one independent living specialist;
(ix) two other professionals with extensive
knowledge of supported decisionmaking
arrangements;
(x) two representatives of disability-led
organizations, meaning organizations for which
at least 50 percent of the staff have a
disability, or 50 percent of the members of the
governing body have a disability;
(xi) two representatives of organizations
representing older adults;
(xii) one guardian, who shall be a
certified guardian if the State involved
provides for such certifications;
(xiii) one guardianship investigator; and
(xiv) one representative of a State
developmental disability agency, State agency
on aging, or State adult protective services
agency.
(B) Diversity.--Members of the Council shall
represent diverse racial, ethnic, religious, gender,
geographic, socioeconomic, religious, age, and
disability categories.
(C) Period of appointment; vacancies.--
(i) Term.--Members shall be appointed for a
3-year term and may be reappointed for one
additional term.
(ii) Vacancies.--Any vacancy in the Council
shall not affect its powers, but shall be
expeditiously filled by the Secretary.
(D) Chair; vice chair.--At the first meeting of the
Council, the Council shall select a Chair and Vice
Chair from among its members. The Council shall select
a member with the characteristics described in clause
(i) or (ii) of subparagraph (A) to fill at least one of
those positions.
(5) Council reports.--
(A) Initial report.--The Council shall prepare a
report in which it makes its initial recommendations on
the standards described in section 5, not later than 2
years after the date of the Council's establishment.
(B) Subsequent reports.--For the 10-year period
beginning on that date of establishment, not later than
4 years after that date and not later than every 2
years thereafter, the Council will review the standards
established under section 5 and prepare a report in
which it makes its subsequent recommendations on the
standards.
(C) Submission.--The Council shall make the reports
described in this paragraph publicly available and
submit the reports to--
(i) the Secretary;
(ii) the Committee on Health, Education,
Labor, and Pensions of the Senate;
(iii) the Special Committee on Aging of the
Senate;
(iv) the Committee on the Judiciary of the
Senate;
(v) the Committee on Education and
Workforce of the House of Representatives;
(vi) the Committee on Energy and Commerce
of the House of Representatives; and
(vii) the Committee on the Judiciary of the
House of Representatives.
(6) Personnel matters.--
(A) No additional compensation.--Members of the
Council who are officers or employees of the United
States shall serve without compensation in addition to
that received for their services as officers or
employees of the United States. Other members of the
Council shall serve without compensation for the
performance of services for the Council.
Notwithstanding section 1342 of title 31, United States
Code, the Secretary may accept the voluntary and
uncompensated services of members of the Council.
(B) Travel expenses.--The members of the Council
shall be allowed travel expenses, including per diem in
lieu of subsistence, at rates authorized for employees
of agencies in subchapter I of chapter 57 of title 5,
United States Code, while away from their homes or
regular places of business in the performance of
services for the Council.
(C) Detail of government employees.--Any Federal
Government employee may be detailed to the Council
without reimbursement, and such detail shall be without
interruption or loss of civil service status or
privilege.
(b) Termination.--The Council shall terminate 10 years after the
date of the establishment of the Council.
SEC. 5. STANDARDS FOR GUARDIANSHIPS, CONSERVATORSHIPS, AND ALTERNATIVE
ARRANGEMENTS.
(a) Standards for Establishing, Reviewing, Modifying, and
Discontinuing Guardianships, Conservatorships, or Other Protective
Arrangements.--The Secretary, through the Administrator of the
Administration for Community Living, with significant input from the
Council, shall develop standards for establishing, reviewing,
modifying, and discontinuing any protective arrangement for a covered
individual, including guardianships and conservatorships, including
standards for each of the following:
(1) Establishing protective arrangements.
(2) Establishing frequencies, of not more than 1 year, for
regular review of protective arrangements by the court of
jurisdiction.
(3) Guaranteed procedures for modification or
discontinuation of protective arrangements.
(4) Guaranteed representation by an independent, qualified,
and compensated lawyer described in section 2(a)(5)(C) for the
covered individual being considered for a protective
arrangement or in a protective arrangement.
(5) Access to due process while the individual is being
considered for a protective arrangement and while in a
protective arrangement.
(6) Options for full restoration of rights for a covered
individual in a protective arrangement.
(7) Ordering limited protective arrangements when less
restrictive arrangements, such as supported decisionmaking
arrangements, are not appropriate.
(8)(A) Collecting detailed data at the national and State
levels on the use of guardianships and other protective
arrangements, supported decisionmaking arrangements, and other
alternative arrangements.
(B) Reporting that data, taken as a whole and disaggregated
by gender identity, race, ethnicity, sexual orientation, income
level, living situation, age, disability type, and reason for
guardianship or other protective arrangement.
(b) Standards for Establishing Supported Decisionmaking and Other
Alternative Arrangements.--The Secretary, through the Administrator of
the Administration for Community Living, with significant input from
the Council, shall develop system standards and other standards for
establishing supported decisionmaking arrangements and other
alternative arrangements as the default decision support options for
covered individuals to avert the use of guardianship or a more
restrictive protective arrangement, including--
(1) system standards that promote supported decisionmaking
arrangements and other alternative arrangements for
decisionmaking arrangements, including decisionmaking
arrangements within local educational agencies, health care
systems, disability and aging services systems, financial
institutions, and court systems;
(2) standards for the areas (such as education, finance,
and health) in which a covered individual requires
decisionmaking supports;
(3) standards for how a covered individual using a
supported decisionmaking arrangement will select the persons to
serve on the supported decisionmaking team;
(4) standards for additional supports, such as assistive
technology devices, required to ensure maximum participation by
covered individuals in their decisionmaking; and
(5) standards for interrupting the processes that lead to
guardianship or conservatorship through retraining key
decisionmakers, such as court personnel and administrators, to
recognize overbroad petitions for guardianships or
conservatorships.
(c) Standards for Transitioning From Guardianships to Alternative
Arrangements.--The Secretary, with significant input from the Council
and a stakeholder group process, shall--
(1) establish standards, for transitioning covered
individuals from guardianship or conservatorship arrangements
into supported decisionmaking arrangements or other alternative
arrangements, that restore the rights of individuals in
appropriate circumstances; and
(2) establish standards that--
(A) require a periodic review of guardianships and
conservatorships, to transition covered individuals in
either type of arrangement to a supported
decisionmaking arrangement or another alternative
arrangement;
(B) provide for such a review at least once a year
for such covered individuals; and
(C) require that a review of a guardianship or
conservatorship occurs if such a covered individual
requests that review.
(d) Minimum Standards for Establishment and Review of Protective
Arrangements.--The Secretary, with significant input from the Council,
shall--
(1) establish standards for establishing guardianships or
other protective arrangements, including in the case of a
plenary guardianship, standards for health, medical, and
financial well-being reviews by the corresponding members
serving on a guardianship review panel before the guardianship
is established and during reviews described in paragraph (4);
(2) create standards for individuals eligible to serve on
such a review panel, which shall include lawyers, and
advocates, with experience protecting the civil rights
described in subsection (a), other professionals with
experience in protective arrangements (such as doctors,
psychologists, and certified financial planners), and covered
individuals;
(3) establish standards requiring background checks of
individuals seeking to serve on guardianship review panels; and
(4) establish standards for reviews of protective
arrangements described in section 2(a)(5)(F).
(e) Availability and Accessibility.--The Secretary shall make the
standards described in this section, and information on the standards,
available and accessible to covered individuals, family members and
guardians of covered individuals, judges and court personnel, school
personnel, minority language communities, and additional appropriate
entities and individuals.
(f) Relation to Other Law.--A State that seeks funding under--
(1) title I of the Rehabilitation Act of 1973 (29 U.S.C.
720 et seq.) shall include, in the State plan submitted under
section 101 of that Act (29 U.S.C. 721) or the application
submitted under section 121 of that Act (29 U.S.C. 741), as the
case may be, an assurance that the State is implementing and
enforcing the standards described in this section and issued by
the Secretary, other than subsection (c); and
(2) subtitle B or C of the Developmental Disabilities
Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15021 et
seq., 15041 et seq.) shall include, in the State plan submitted
under section 124 of that Act (42 U.S.C. 15024) or the
materials demonstrating eligibility under section 143 of that
Act (42 U.S.C. 15043), as the case may be, the assurance
described in paragraph (1).
SEC. 6. PROTECTION AND ADVOCACY PROGRAM FOR OVERSIGHT OF PROTECTIVE
ARRANGEMENTS.
Title I of the Developmental Disabilities Assistance and Bill of
Rights Act of 2000 (42 U.S.C. 15001 et seq.) is amended by adding at
the end the following:
``Subtitle F--Protective Arrangements Oversight
``SEC. 171. PROTECTION AND ADVOCACY PROGRAM FOR OVERSIGHT OF PROTECTIVE
ARRANGEMENTS.
``(a) Definitions.--In this section:
``(1) American indian consortium; state.--The terms
`American Indian Consortium' and `State' have the meanings
given the terms in section 102.
``(2) Guardianship bill of rights definitions.--Except as
provided in paragraphs (1) and (3), the terms used in this
section have the meanings given the terms in section 3 of the
Guardianship Bill of Rights Act of 2026.
``(3) Protection and advocacy system.--The term `protection
and advocacy system' means--
``(A) a protection and advocacy system established
in accordance with section 143; and
``(B) an American Indian Consortium that provides
protection and advocacy services under section 142.
``(b) Establishment.--The Secretary, acting through the
Administrator for the Administration for Community Living, shall
establish a Protection and Advocacy Program, for oversight and
monitoring of State and local guardianships, conservatorships, and
other protective arrangements.
``(c) Grants.--The Secretary shall make a grant to each protection
and advocacy system to establish or expand a Protection and Advocacy
Program for Oversight of Protective Arrangements.
``(d) Authority.--In order for a protection and advocacy system for
a State or serving an American Indian tribe to receive a grant under
this section--
``(1) the State or tribe shall have in effect a protective
arrangement oversight system to protect and advocate for the
rights of covered individuals concerning protective
arrangements; and
``(2) the protective arrangement oversight system shall
have the authority to--
``(A) pursue legal, administrative, and other
appropriate remedies or approaches to ensure the
protection of, and advocacy for, the rights of covered
individuals within the State or American Indian tribe
who are being considered for or in a protective
arrangement;
``(B) provide legal representation to covered
individuals who--
``(i) are facing a proceeding to establish
a protective arrangement; or
``(ii) who desire to modify or discontinue
a protective arrangement;
``(C) provide information, referrals, training, and
legal representation to enable a covered individual to
establish or defend a supported decisionmaking
arrangement or another alternative arrangement,
including providing such services in plain language,
American Sign Language, and other minority languages;
and
``(D) investigate incidents of abuse of
guardianships and other protective arrangements.
``(e) Use of Funds.--
``(1) In general.--An entity that receives a grant under
this section for a protective arrangement oversight system
shall carry out the activities described in subsection (d) or
(f).
``(2) Limitation.--The protective arrangement oversight
system may not use the grant funds to provide legal
representation, or other services, to persons seeking to
establish or maintain (with or without modification) a
guardianship or conservatorship.
``(f) Reports.--Each entity that receives a grant under this
section for a protective arrangement oversight system shall prepare and
submit to the Secretary, in accordance with such requirements as the
Secretary may specify, information on activities carried out through
the corresponding program described in subsection (c).
``(g) Authorization of Appropriations.--There is authorized to be
appropriated to carry out this section $50,000,000 for fiscal year 2027
and each succeeding fiscal year.''.
<all>