This section seeks to explain the qualifications, or lack thereof, of guardians and conservators.
The establishment of guardianships will differ to some extent based on state laws and local court procedures. However, the process involves some common steps, including a petition to initiate a court proceeding and a hearing to determine capacity levels and the need for a guardianship or conservatorship. The National Probate Court Standards is an excellent guide on the guardianship and conservatorship processes from petition to final report and discharge. The standards recommend that a petition to establish a guardianship or conservatorship include the following information:
- The reasons why a guardianship or conservatorship is being sought
- A description of the nature and extent of the limitations in the respondent's ability to care for herself/himself or to manager her or his financial affairs
- Representations that less intrusive alternatives to guardianship or conservatorship have been examined
- The guardianship/conservatorship powers being requested and the duration of the powers
- The nature and estimated value of assets, the real and personal property included in the estate, and the estimated annual income (conservatorship cases).
Following the submission of a petition, the establishment of a guardianship or conservatorship generally involves the following steps, though variances will occur from court to court.
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 established 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.
The Third National Guardianship Summit (2011) resulted in the Guardian Standards and Recommendations for Action, which calls for guardians to seek ongoing education concerning person-centered planning, surrogate decision-making, responsibilities and duties of guardians, legal processes of guardianship, and state certification of guardians (Standard #2.1). It recommends that courts ensure "sufficient ongoing, multi-faceted education" to those involved in the guardianship process, including guardians and court staff (Recommendation #2.1).
The National Probate Court Standards state that courts should develop and implement programs for the orientation, education, and assistance of guardians and conservators (Standard 3.3.14). While few states statutorily require that guardians receive training, most courts provide some level of orientation or education either through printed manuals, videos, on-line training and information, and in-person briefing sessions (many in multiple languages). Examples of training materials include the following:
- California: Self-Help Page for Conservators
- Florida: Guardianship Basics: A Handbook for Guardians
- Georgia: Handbooks for Guardians/Conservators
- Minnesota: Introduction for Newly Appointed Guardians and Conservators (video)
- Wisconsin: Guardianship of Adults: A Decision-Making Guide
Very few states require that family guardians be trained (see Nebraska's program for an example of required educational instruction for family guardians). Generally, the level of assistance provided to family guardians tends to be limited. An exception is New York State's Guardianship Assistance Network, which can help individuals take the steps needed to become official guardian, set up a guardian bank account, write reports and accountings required by the court, find services and help to apply for government benefits, make a plan for the ward that allows as much independence as possible, and locate resources.
General training opportunities and professional affiliations are increasingly available through national organizations. The mission of the National Guardianship Association (NGA) "is to establish and promote a nationally recognized standard of excellence in guardianship." NGA encourages family guardians to join its organization by offering a discounted membership fee. Professional certification is available in a number of states or through the Center for Guardianship Certification (CGC).