IN THE SENATE OF THE UNITED STATES
February 27, 2019
Ms. Collins (for herself and Mr. Casey) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To assist States in improving guardianship oversight and data collection.
This Act may be cited as the
Guardianship Accountability Act of 2019.
Congress finds the following:
An estimated 1,300,000 adults and approximately $50,000,000,000 in assets are under the care of guardians in the United States.
Most guardians are selfless, dedicated individuals who play an important role in safeguarding individuals in need of support. However, unscrupulous guardians acting with little oversight have used guardianship proceedings to obtain control of individuals in need of support.
Once a guardianship is imposed, there are often few safeguards in place to protect against individuals who choose to abuse the system and few states are able to report accurate or detailed guardianship data.
A full guardianship order may remove more rights than necessary and may not be the best means of providing support and protection to an individual. If individuals subject to guardianship regain capacity, all or some rights should be quickly and efficiently restored.
States should encourage courts to use alternatives to guardianship through State statutes, including the adoption of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, to ensure better protections and control for individuals being considered for guardianship and those pursuing a restoration of their rights.
A national resource center on guardianship is needed to collect and publish information for the benefit of courts, policy makers, individuals subject to guardianship, guardians, community organizations, and other stakeholders.
The purposes of this Act are to help States improve guardianship oversight and data collection by—
designating a National Online Resource Center on Guardianship;
authorize grants for the purpose of developing State Guardianship Databases; and
establishing procedures for sharing background check information related to appointed guardians with other jurisdictions.
In this Act:
Elder justice coordinating council
The term Elder Justice Coordinating Council means the Council established under section 2021 of the Social Security Act (42 U.S.C. 1397k).
The term guardianship means a legal relationship established by a court when a person 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, technological assistance, supported decision making, or other less restrictive alternatives.
Individuals subject to guardianship
The term individuals subject to guardianship means any individual 18 years or older placed under a guardianship.
National Online Resource Center on Guardianship
The Elder Justice Coordinating Council shall establish a National Online Resource Center on Guardianship (referred to in this section as the
The National Online Resource Center on Guardianship
The National Online Resource Center shall—
collect and publish information for use by individuals subject to guardianship, guardians, courts, State and local governments, and community organizations;
post model standards, best practices, and guidelines for the appointment and regulation of guardianship cases developed under section 505 of the Elder Abuse Prevention and Prosecution Act (34 U.S.C. 21752);
promote the use of less restrictive alternatives to guardianship and the restoration of rights of individuals subject to guardianship;
annually compile and publish a summary of recently conducted research on guardianship systems, including information from agencies across the government;
collect data from States regarding—
the number of individuals subject to guardianship;
the duration of guardianships;
whether the authority granted to guardians is classified as—
emergency or temporary guardianship; or
a less restrictive alternative to guardianship;
the amount of financial assets under guardianship; and
whether an appointed guardian is classified as a—
family or other nonprofessional guardian;
private or professional guardian or guardianship agencies; or
maintain a public, national database on State laws regarding guardianship and less restrictive alternatives to guardianship, including requirements for the—
use of least restrictive alternative;
regular filing and documentation by appointed guardians;
oversight of appointed guardians;
restoration of rights of individuals subject to guardianship; and
oversight of potential conflicts of interest among individuals and organizations involved in guardianship applications, appointments, and oversight;
identify issues relating to guardianship and provide and publish annual recommendations to States and Congress to address identified problems;
collect and analyze best practices relating to guardianship, and publish a report of such best practices, including model guidelines and standards for—
ensuring appropriate representation and protection of legal rights for individuals subject to guardianship and guardianship proceedings;
conducting background check investigations on prospective and appointed guardians;
promoting the use of less restrictive alternatives to guardianship;
obtaining restoration of all or some rights;
implementing oversight programs; and
responding to abuse, neglect, and exploitation;
compile and publish training materials for court appointed guardians related to duties and obligations, as well as ways in which to effectively support individuals subject to guardianship;
facilitate State collection of guardianship information and the sharing of such information among States; and
carry out other activities, as determined by the Elder Justice Coordinating Council.
In developing the Center, the Elder Justice Coordinating Council shall take into account diverse stakeholder views, including those of individuals and organizations representing people with disabilities, older adults, family members, court-stakeholder partnerships and others, as well as available literature developed through academic or other research institutions.
State guardianship databases
Section 2042(c) of the Social Security Act (42 U.S.C. 1397m–1(c)) is amended—
in paragraph (1), by striking
paragraph (2)(E) and inserting
subparagraphs (E), (F), (G), and (H) of paragraph (2);
in paragraph (2)—
in the matter preceding subparagraph (A)—
Funds and inserting
Subject to paragraph (7), funds; and
subparagraph (E) and inserting
subparagraphs (E), (F), (G), and (H);
in subparagraph (E), by striking
or at the end;
by redesignating subparagraph (F) as subparagraph (I); and
by inserting after subparagraph (E) the following new paragraphs:
methods to assess State guardianship statistics such as the creation of State databases to collect information about the number and characteristics of guardianship arrangements, guardians, and individuals subject to guardianship;
the use of trained court visitors to improve court administration of guardianship arrangements, including the appointment and oversight of guardians;
methods for collecting, storing, and making available to the appropriate individuals, organizations, and entities information on prospective, current, and previously appointed guardians, which may include—
contact and identifying information;
information relating to background check investigations;
court decisions regarding petitions for appointment as a guardian, including the rationale for such decisions; and
information relating to the cause for removal of the guardian or termination of the guardianship arrangement; or
in paragraph (4), by striking
paragraph (2)(E) and inserting
subparagraphs (E), (F), (G), and (H) of paragraph (2);
in paragraph (5), by striking
paragraph (2)(E) each place it appears and inserting
subparagraphs (E), (F), (G), and (H) of paragraph (2); and
by adding at the end the following new paragraph:
Ensuring demonstration program funding for the highest courts of States
The Secretary shall ensure that at least 5 percent of the total of any funds made available to carry out this subsection in a fiscal year (beginning with fiscal year 2020) is awarded under grants to the highest courts of States for purposes of conducting demonstration programs described in subparagraphs (E), (F), (G), and (H) of paragraph (2).