New Law Would Require Background Check for Pennsylvania Guardians

A bill has been introduced by a Berks County lawmaker with the intent to require background checks on individuals who want to be court appointed guardians to the incapacitated.

Preventing convicted felons from serving as guardians to vulnerable people, including seniors and the disabled, who have been declared incapacitated by the court sounds like common sense. It is hard to believe that rule is not already in place, isn’t it?

The Reading Eagle reports in a recent article, “Bill would require background checks for guardianship,” that Pennsylvania State Representative Mark Gillen is seeking co-sponsors for the bill, after he read about a Reading Eagle investigation that found courts in Philadelphia and Montgomery counties appointed Gloria Byars, a convicted felon, to manage the estates of more than 75 incapacitated adults.

Advocates praised the bill, saying it goes a long way to creating state standards. After more than ten years of state working groups, advisory committees and task force reports recommending standards for guardians that include licensing and background checks that have yet to be put in place, these advocates praised the lawmaker for responding to the issue that the newspaper article raised. However, they also had concerns that the bill's language didn’t specifically address whether agencies that delegate court-appointed responsibilities to staff, must conduct background checks on those employees. The proposed law might not prevent a case like Byars', who worked for a guardianship agency, from happening again.

Critics say the felony ban would bar relatives with a criminal conviction from being appointed, even if the offense is long in the past. There’s nothing in state statute that currently prohibits a court-appointed guardian from having a criminal record. The new legislation would change that and would disqualify convicted felons from being appointed guardians. It would also require federal and state criminal history checks. In addition, it bans undocumented immigrants from serving.

Lawrence A. Frolik, a University of Pittsburgh School of Law professor and national expert on elder legal issues, called the bill heavy handed.

"The use of felony disqualification disproportionately impacts minority communities," Frolik said.

Advocates said that doing a criminal background check would be limited, and someone like Byars, who was convicted for financial theft and fraud, could still slip through the cracks, because she worked as an employee for a guardianship agency.

Gillen said he hopes that the amendment process will iron out this loophole. He noted that his strategy is to start out with a lean piece of legislation, and then seek input from stakeholders.

Here at the Soto Law Firm, we help clients avoid these types of incapacity issues. In a General Durable Power of Attorney, commonly known as a Financial Power of Attorney, clients name those individuals they wish to perform financial transactions on their behalf, which would avoid the need to have a guardian or conservator appointed if they became incapacitated. Through Trust planning, a client can choose successor trustees who would step in an control assets titled in the name of the trust, which process also avoids the need for a the appointment of a guardian or conservator. Contact the Soto Law Firm today to set up a free initial consultation to discuss your options for avoiding these types of incapacity issues in Arizona.

Reference: Reading Eagle (April 14, 2018) “Bill would require background checks for guardianship”