Bill would require background checks for guardianship

State Rep. Mark Gillen sponsored the measure. It would also prevent those with felony convictions from serving as guardians.

Harrisburg, PA — A Berks County lawmaker has introduced legislation that would require background checks on individuals up for appointment as guardians for the incapacitated.

State Rep. Mark Gillen began seeking co-sponsors for the bill two days after reading 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 Gillen's bill, saying it goes a long way to establish state standards. After more than a decade 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 applauded Gillen for responding quickly to the issue the newspaper's series raised.

But they also expressed concern that the bill's language fails to specifically address whether agencies that delegate court-appointed responsibilities to staff must conduct background checks on those employees.

An attorney who specializes in elder law said 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 decades old.

Nothing in state statute currently prohibits a court-appointed guardian from having a criminal record.
House Bill 2247, introduced Monday, would change that.

"We think there is a void that needs to be filled," said Gillen, a Robeson Township Republican. "Let's all agree that criminals should not intersect with the assets of our frail elders."

Gillen's bill would disqualify convicted felons from being appointed guardians and require federal and state criminal history checks. It also bans undocumented immigrants from serving.

The bill has bipartisan support and nearly two dozen co-sponsors.

"The reason for getting on the bill is simply we have an obligation to protect our most vulnerable citizens and certainly our elderly would fall into that category," said Rep. Judy Ward, a Blair County Republican. "I'm happy to be a co-sponsor."

The bill was met with mixed reaction.

While advocates for the elderly said they don't want the court appointing guardians with felony records, the type and date of a conviction is more important. As written, any felony conviction, even convictions that occurred decades ago involving charges unrelated to the care and protection of vulnerable Pennsylvanians would be disqualifying.

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.

Sam Brooks, senior attorney for Community Legal Services of Philadelphia, which has become one of the leading advocates in the state for the elderly, agreed.

"It could actually prevent family members who are willing to serve from actually being able to serve," Brooks said. "While we envisioned background checks, we didn't envision this for family members."

Brooks added, "We would like to see the courts have some discretion."

Other states with felony bans, such as California and Texas, make a distinction between family members stepping up to serve as guardian for a loved one and professionals who charge for services.

Advocates also note a criminal background check - to be paid by the proposed guardian - can be costly.

A criminal history check through the Pennsylvania State Police is $27, and an FBI check costs $18.

Concerned the cost could be prohibitive for Pennsylvania families, Frolik suggested the background check be paid from the incapacitated adult's estate. Or, he suggested, an affidavit attesting that the proposed guardian has never been charged or convicted with elder abuse or financial exploitation could substitute for a criminal check.

Advocates also noted a criminal background check would flag only convictions.

"It's very common for them to delegate powers to their staff," said Brooks, the legal aid attorney in Philadelphia. "The question is would this cover that? Probably not."

It's a possible employee loophole Gillen said he hopes the amendment process will iron out.

Gillen didn't address all the crticism, but with lawmakers considering hundreds of bills each session, he said his strategy with this and every bill is to introduce a lean product, then seek input from stakeholders.

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Bill would require background checks for guardianship