Background Checks and Bonds
Background checks and bond requirements are becoming increasingly standard practices when determining the qualifications of potential guardians and conservators.
The National Probate Court Standards advise courts to request national background checks on all prospective guardians and conservators—with the exception of those who have already undergone checks part of a certification or licensing procedure, public guardians, and financial institutions (Standard 3.3.12). The background checks should be completed before an appointment is made to determine whether the prospective guardian or conservator has been:
- Convicted of a relevant crime;
- Determined to have committed abuse, abandonment, neglect, or financial or sexual exploitation of a child, spouse, or other adult;
- Suspended or disbarred from law, accounting, or other professional licensing for misconduct involving financial or other fiduciary matters, or
- Documented with a poor credit history.
According to the AARP Public Policy Institute, only 13 states require that guardians undergo independent criminal background checks before being appointed. Given the authority of guardians and conservators and the potential for abuse and exploitation of protected persons, criminal histories and credit checks are considered appropriate safeguards. The National Probate Court Standards recommend that when courts do receive potentially disqualifying information, they weigh the seriousness and recentness of the offense or misconduct, its relevance to the case, the nominee's most recent record, and the vulnerability of the respondent. The background information can also be used to require periodic post-appointment criminal history and credit checks of a guardian or conservator where there is some concern.
Generally, bonds are required to protect the assets of a protected person when placed under a conservatorship. The requirement of bonds for guardians and conservators is considered a standard practice for courts, but a point of contention for prospective family guardians and conservators who may have difficulties qualifying for a bond or may see it as an unnecessary expense. Nevertheless, the Guardian Standards and Recommendations for Action (Standard #4.9) state that "the conservator shall take all steps necessary to obtain a bond to protect the estate, including obtaining a court order."
The National Probate Court Standards urge probate courts to require all conservators to be bonded for an amount commensurate with the size of the estate, except in unusual circumstances (Standard 3.3.15). If there is misfeasance or malfeasance that diminishes the respondent's estate, a bond will restore the principal, thus protecting the vulnerable person's assets. In determining whether to require a bond, the amount of bond, or whether an alternative measure will provide sufficient protection, the Standards recommend probate courts to consider the following factors:
1. Value of the estate and annual gross income and other receipts
2. Extent to which the estate has been deposited under an effective arrangement requiring a court order for its removal
3. Whether a court order is required for the sale of real estate
4. Whether a restricted account has been establish and proof provided to the court that the restrictions will be enforced by the bank
5. Frequency of the conservator's required reporting
6. Extent to which the income or receipts are payable to a facility responsible for the ward's care and custody
7. Extent to which the income and receipts are derived from state or federal programs that impose their own accounting requirements
8. Whether the conservator was appointed pursuant to a nomination that requested that bond be waived
9. Financial responsibility of the proposed guardian or conservator.