Hawaii Guardian Bond: A Comprehensive Guide
At a Glance:
- Average Cost: Calculated based on a tiered structure
- Bond Amount: Determined on a case-by-case basis
- Who Needs It: Certain guardians appointed as fiduciaries in Hawaii
- Purpose: To ensure that the ward receives compensation for financial harm if the guardian fails to fulfill their fiduciary duties
- Who Regulates Guardian Bonds in Hawaii: The circuit court with jurisdiction over where the ward resides
Hawaii Statutes 560:5-201 and 560:5-301 require all guardians to be appointed by a court before assuming their fiduciary duties. The Hawaii legislature enacted the appointment requirement to ensure that guardians properly advocate for a ward’s best interests when making decisions related to their health or welfare. To provide financial security for the enforcement of this requirement, certain guardians must purchase and maintain a probate surety bond before becoming appointed as fiduciary.
What is the Purpose of the Hawaii Guardian Bond?
Hawaii requires certain guardians to purchase a surety bond as a prerequisite to being appointed as a fiduciary over a ward. The bond ensures that the ward will receive compensation for financial harm if the guardian fails to abide by the regulations outlined in Hawaii Probate Rule 107a. Specifically, the bond protects the ward if the guardian fails to adhere to all court orders or mishandles the ward’s property.
For example, if a guardian uses money from a ward’s bank account to pay for the guardian’s personal expenses or mixes the ward’s funds with their own, the ward can file a claim against the guardian’s bond to recoup their losses. In short, the bond is a type of insurance in favor of the ward if the guardian does not fulfill their fiduciary duties.
How Can an Insurance Agent Obtain a Hawaii Guardian Bond?
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What are the Underwriting Requirements for the Hawaii Guardian Bond?
Most surety companies will examine the following factors when determining eligibility for the Hawaii Guardian bond:
- Guardian’s credit history
- Whether or not the estate has an attorney
- Whether or not the guardian is a family member
- The guardian’s occupation
- Whether or not the guardian is replacing a prior fiduciary
- If the guardian has ever committed a felony
- Whether or not there is any ongoing business in the estate
- If a creditor is requiring the bond
- If the bond amount is greater than or equal to the estate’s value
How Much Does the Hawaii Guardian Bond Cost?
Surety companies typically determine the premium rate for Guardian bonds based on a tiered structure, so larger bond amounts will be charged a lower premium rate than smaller bonds. Hawaii Code 29-4-30 and 29-2-25 allow for the ward’s estate to pay for the cost of the bond at the request of the guardian.
The following table illustrates the pricing structure for the Hawaii Guardian bond:
$1,500,000 Guardian Bond Cost
|Total Bond Cost
|Total cost of $4,715
Who is Required to Purchase the Bond?
Hawaii requires certain guardians to purchase a surety bond as a prerequisite to becoming a court-appointed fiduciary. To paraphrase Hawaii Statute 560:5-102, a “guardian” is an individual appointed as a fiduciary who is responsible for providing care and protection to a ward. Likewise, a “ward” is defined as a minor or incapacitated adult for whom a guardian has been appointed that is incapable of making sound decisions concerning their health and welfare.
Hawaii Probate Rule 107a dictates that the court has the sole authority to determine if a guardian must purchase a bond and will do so on a case-by-case basis. If the ward owns a substantial amount of property and the guardian has control over that property, the court may require the guardian to obtain a bond. Guardians that do not wish to purchase a bond may request to submit a form of collateral instead, such as a pledge of securities or a mortgage of land.
How do Hawaii Guardians Become Appointed as Fiduciaries?
Guardians in Hawaii must navigate several steps to become appointed as fiduciaries. Below are the general guidelines for guardians of adults only, as each guardianship case for minors comes with its own unique appointment process and must be addressed individually. Appointees should refer to the appointment statutes or the state’s probate rules for details on the process.
Step 1 – Hire an Attorney
Although not explicitly required, it is highly recommended that guardians hire an attorney to assist with the appointment process.
Step 2 – Determine Priority
Priority to serve as a guardian is granted in the following order:
- Persons already appointed as a fiduciary over the ward in this state or another
- An individual or corporation nominated by the ward if they have sufficient capacity to express a preference
- An individual appointed by the protected person under any medical directive or health care power of attorney
- The spouse of the protected person or their nominee
- The adult child of the protected person
- The parent of the protected person or their nominee
- An adult who has resided with the protected person for at least six months before the filing of the petition
The court will appoint the guardian best suited for the ward and may choose to appoint a person without priority.
Step 3 – File a Petition for Appointment
Persons seeking guardianship over a ward must file a petition for appointment with the circuit court with jurisdiction over where the ward resides. Guardians can obtain the forms from the circuit court, and must include the following information:
- Personal information of the ward and any relatives
- Personal information about the person seeking guardianship
- General statement and evaluation of the ward’s condition
- The reason for why guardianship is appropriate
An owner, operator, or employee of a long-term care facility where the ward is receiving care is ineligible for being appointed as a guardian.
Step 4 – Attend a Hearing
Guardians must attend a hearing conducted by the circuit court and present evidence as to why the adult is in need of guardianship. The court will examine the evidence presented by the guardian as well as that presented by the adult being evaluated (if any) and make a determination as to whether or not guardianship is necessary.
Any interested person can apply to the court to participate in the hearing. If the court finds a basis for the appointment, it will issue a letter of guardianship to the petitioner.
Step 5 – Purchase a Surety Bond
The court, in its sole discretion, may require guardians of a ward to purchase and maintain a surety bond (limits outlined above).
How do Hawaii Guardians File Their Bonds?
Guardians should submit their completed bond forms, including the power of attorney, to the circuit court with jurisdiction over where the protected person resides.
The surety bond requires signatures from the company that issues the bond and the guardian. The surety company should include the following information on the bond form:
- Legal name of the entity/individual(s) buying the bond
- Surety company’s name and state of incorporation
- Bond amount
- Date the bond is signed
- Date of the appointment
- Type of fiduciary relationship
- Name and county of the circuit court
What can Hawaii Guardians do to Avoid Claims Made Against Their Bonds?
To avoid claims against their bonds, guardians in Hawaii must ensure that they:
- Perform all of their fiduciary duties
- Obey all court orders
- Do not mismanage the ward’s property