Administrative Rule 59 - GUARDIANS

Section 1. Purpose. This rule establishes qualifications and training requirements for nonprofessional and professional guardians appointed under N.D.C.C. ch. 30.1-28. For purposes of this rule, "nonprofessional guardian" means an individual who serves as guardian for two or fewer individuals at the same time, and "professional guardian" means an individual or entity that serves as guardian for three or more individuals at the same time, an individual or entity appointed to serve as a public guardian or administrator, or an individual or entity that holds itself out as providing guardianship services for hire. This rule does not apply to emergency guardians appointed under N.D.C.C. § 30.1-28-10.1.

Section 2. Qualifications - Nonprofessional Guardian. An individual proposed to serve as a nonprofessional guardian:

(a) Must submit an affidavit stating that the proposed guardian has completed the online guardianship training program established by the North Dakota supreme court and file a certificate of completion with the appointing court before letters of guardianship are issued;

(b) Unless waived by the court, must provide a criminal history record check report to the appointing court before the hearing on the petition to appoint a guardian; and

(c) Must provide to the appointing court before the hearing on the petition to appoint the guardian an affidavit stating whether the proposed guardian has been investigated for offenses related to theft, fraud, or the abuse, neglect, or exploitation of an adult or child and must provide a release authorizing access to any record information maintained by an agency in this or another state or a federal agency.

Section 3. Qualifications - Professional Guardian (Entity). An entity proposed to serve as a professional guardian:

(a) Must be accredited through the Council on Accreditation or its employed guardians must possess certification through the Center for Guardianship Certification;

(b) Must provide to the court considering the petition for appointment as a guardian an affidavit stating whether any individual who will provide guardianship services for the ward has been investigated for a criminal offense related to fraud, theft, or abuse, neglect or exploitation of an adult or child or there has been a substantiated instance of abuse, neglect, or exploitation of an adult or child by the guardian;

(c) Must provide to the court considering the petition for appointment as a guardian an affidavit stating whether any individual who will provide guardianship services for the ward has been the subject of a substantive disciplinary order issued by a licensing entity or by an agency accredited through the Council on Accreditation;

(d) Must provide to the court considering the petition for appointment as a guardian an affidavit indicating the entity under the auspices of which any individual who will provide guardianship services has obtained a release authorizing access to any record information maintained by an agency in this or another state or a federal agency, a criminal history record check report and the results of a background inquiry for offenses related to theft, fraud, or the abuse, neglect, or exploitation of an adult or child with respect to any individual who will provide guardianship services and indicating the results of the report and inquiry; and

(e) Must provide to the court considering the petition for appointment as a guardian an affidavit indicating that all individuals employed by the entity to serve as a guardian have completed the online guardianship training program established by the North Dakota supreme court.

Section 4. Qualifications - Professional Guardian (Individual). An individual proposed to serve as a professional guardian, whether or not employed by a professional guardian entity:

(a) Must possess certification through the Center for Guardianship Certification;

(b) Must submit an affidavit that the proposed guardian has completed the online guardianship training program established by the North Dakota Supreme Court and file a certificate of completion with the appointing court before letters of guardianship are issued;

(c) Unless waived by the court, must provide a criminal history record check report to the appointing court before the hearing on the petition to appoint a guardian; and

(d) Must provide to the appointing court before the hearing on the petition to appoint the guardian an affidavit stating whether the proposed guardian has been investigated for a criminal offense related to fraud, theft, or abuse, neglect or exploitation of an adult or child, there has been a substantiated instance of abuse, neglect, or exploitation of an adult or child by the guardian, or the guardian has been the subject of any disciplinary proceeding by a licensing entity or by an agency accredited through the Council on Accreditation, and must provide a release authorizing access to any record information maintained by an agency in this or another state or a federal agency.

Section 5. Criminal convictions - effect on appointment as guardian.

(a) An individual may not be appointed as a professional and nonprofessional guardian if the individual has been found guilty of, pled guilty to, or pled no contest to:

(1) An offense described in N.D.C.C. ch. 12.1-16, homicide: § 12.1-17-01, simple assault, if a class C felony under subdivision a of subsection 2 of that section; § 2.1-17-01.1, assault; § 12.1-17-01.2, domestic violence: § 12.1-17-02, aggravated assault; § 12.1-17-03, reckless endangerment; § 12.1-17-04, terrorizing: § 12.1-17-06, criminal coercion: § 12.1-17-07.1, stalking: § 12.1-17-12, assault or homicide while fleeing a peace officer: ch. 12.1-18, kidnapping: § 12.1-20-03, gross sexual imposition: § 12.1-20-03.1, continuous sexual abuse of a child; § 12.1-20-04, sexual imposition: § 12.1-20-05, corruption or solicitation of minors: § 12.1-20-05.1, luring minors by computer or other electronic means: § 12.1-20-06, sexual abuse of wards: § 12.1-20-06.1, sexual exploitation by therapist: § 12.1-20-07, sexual assault: § 12.1-20-12.3, sexual extortion: § 12.1-21-01, arson: § 12.1-22-01, robbery: or § 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; ch. 12.1-27.2, sexual performances by children: ch. 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking: or § 12.1-29-01, promoting prostitution: § 12.1-29-02, facilitating prostitution: § 12.1-31-05, child procurement: § 12.1-31-07, endangering an eligible adult: § 12.1-31-07.1, exploitation of an eligible adult: § 14-09-22, abuse of a child: § 14-09-22.1, neglect of a child, subsection 1 of section § 26.1-02.1-02.1, fraudulent insurance acts: or an offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any enumerated North Dakota statutes: or

(2) An offense, other than an offense identified in subsection 5(a)(1), if the appointing court determines that the individual seeking appointment as a professional or nonprofessional guardian has not been sufficiently rehabilitated.

(b) For the purposes of subsection 5(a)(2), the court:

(1) May not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment without subsequent charge or conviction has elapsed, unless sufficient evidence is provided of rehabilitation: and

(2) Must treat completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections, or from imprisonment, without subsequent conviction, as prima facie evidence of sufficient rehabilitation.

(c) The offenses enumerated in subsection 5(a)(1) have a direct bearing on the proposed professional or nonprofessional guardian's ability to provide guardianship services.

Section 6. Notification - professional and nonprofessional guardians. The guardian mustnotify the unit administrator in each administrative unit in which the guardian provides guardianship services that the guardian has been charged with a criminal offense related to fraud, theft, or abuse, neglect or exploitation of an adult or child or there has been a substantiated instance of abuse, neglect, or exploitation of an adult or child by the guardian. Where the guardian is or was employed by an entity, the entity is also required to provide notification.

Section 7. Rule Implementation. This rule applies to all guardianships established after the effective date. For active guardianships established prior to the effective date of this rule, the guardian must complete the requirements above and must submit the required documentation to the court with jurisdiction over the guardianship within 30 months from the March 1, 2018 effective date of this rule.