CSHB 427(JUD): "An Act relating to guardianships and conservatorships, to the public guardian and the office of public advocacy, to private professional guardians and private professional conservators, to court visitors, court-appointed attorneys, guardians ad litem, and fiduciaries, and to the protection of the person or property of certain individuals, including minors; amending Rule 17(c), Alaska Rules of Civil Procedure, and Rules 16(f) and 17(e), Alaska Rules of Probate Procedure; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 427(JUD) 01 "An Act relating to guardianships and conservatorships, to the public guardian and the 02 office of public advocacy, to private professional guardians and private professional 03 conservators, to court visitors, court-appointed attorneys, guardians ad litem, and 04 fiduciaries, and to the protection of the person or property of certain individuals, 05 including minors; amending Rule 17(c), Alaska Rules of Civil Procedure, and Rules 06 16(f) and 17(e), Alaska Rules of Probate Procedure; and providing for an effective 07 date." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. AS 08.01.010 is amended by adding a new paragraph to read: 10 (38) regulation of private professional guardians and private 11 professional conservators (AS 08.26). 12 * Sec. 2. AS 08 is amended by adding a new chapter to read: 13 Chapter 26. Private Professional Conservators and Guardians.
01 Article 1. Licensing. 02 Sec. 08.26.010. License required. Except as provided by AS 08.26.180, a 03 person may not engage in the business of providing services as a guardian or a 04 conservator unless the person has a license issued under this chapter. 05 Sec. 08.26.020. Requirements for individual private professional guardian 06 license. The department shall issue an individual private professional guardian license 07 to an individual 08 (1) who is at least 21 years of age; 09 (2) who has two or more years of professional client casework 10 experience or at least an associate degree in human services, social work, psychology, 11 sociology, gerontology, special education, or a closely related field; 12 (3) who is certified as a guardian by a nationally recognized 13 organization in the field of guardianships; 14 (4) who provides proof satisfactory to the department that the 15 individual is able to be bonded and insured; 16 (5) whose criminal history record checks under AS 08.26.070 show 17 that the individual has not been convicted of a crime within 10 years of the application 18 that would affect the individual's ability to provide the services of a guardian 19 competently and safely for the ward; and 20 (6) who satisfies the application requirements of AS 08.26.060. 21 Sec. 08.26.030. Requirements for individual private professional 22 conservator license. The department shall issue an individual private professional 23 conservator license to an individual 24 (1) who is at least 21 years of age; 25 (2) who has obtained a high school diploma, or a general education 26 development diploma or its equivalent; 27 (3) who has six months' employment experience in a position 28 involving financial management, or has at least an associate degree in accounting or a 29 closely related field; 30 (4) who is certified as a guardian by a nationally recognized 31 organization in the field of guardianships;
01 (5) who provides proof satisfactory to the department that the 02 individual is able to be bonded and insured; 03 (6) whose criminal history record checks under AS 08.26.070 show 04 that the person has not been convicted of a crime within 10 years before the 05 application that would affect the individual's ability to provide the services of a 06 conservator competently and safely for the protected person; and 07 (7) who satisfies the application requirements of AS 08.26.060. 08 Sec. 08.26.040. Requirements for organizational license. (a) The 09 department shall issue an organizational license to a person who is not an individual if 10 (1) the person maintains a place of business in this state; 11 (2) the person is in compliance with the state and federal requirements 12 that apply to the organization; 13 (3) the person submits proof satisfactory to the department that the 14 person is able to be bonded and insured; 15 (4) the results of the criminal history record checks of the person under 16 AS 08.26.070 show that the person or following individuals have not been convicted 17 of a felony within the 10 years before the application that would affect the person's or 18 individuals' ability to provide the services of a guardian or conservator, whichever is 19 applicable, competently and safely for the ward or protected person: 20 (A) the officers of the organization, if the organization is a for- 21 profit corporation or a nonprofit corporation; 22 (B) the members or manager of the organization, if the 23 organization is a limited liability company; or 24 (C) the partners of the organization, if the organization is a 25 partnership, limited partnership, or limited liability partnership; 26 (5) the person designates in writing one of the following individuals to 27 be responsible within the organization for monitoring the organization's compliance 28 with this chapter and the other laws of this state: 29 (A) an officer of the organization, if the organization is a for- 30 profit corporation or a nonprofit corporation; 31 (B) a member or manager of the organization, if the
01 organization is a limited liability company; 02 (C) a partner of the organization, if the organization is a 03 partnership, limited partnership, or limited liability partnership; 04 (6) all of the individuals employed by the person to provide the 05 services of a private professional guardian or private professional conservator for the 06 organization have licenses under this chapter; and 07 (7) the person satisfies the application requirements of AS 08.26.060. 08 (b) If the organization's employees have licenses under both AS 08.26.020 and 09 08.26.030, the license issued under (a) of this section shall cover providing the 10 services of a guardian and a conservator. 11 (c) If the organization's employees have licenses only under AS 08.26.020 but 12 not under AS 08.26.030, the license issued under (a) of this section is limited to 13 providing the services of a guardian. 14 (d) If the applicant's employees have licenses under AS 08.26.030 but not 15 under AS 08.26.020, the license issued under (a) of this section is limited to providing 16 the services of a conservator. 17 Sec. 08.26.050. Temporary license. (a) The department shall issue a 18 temporary license to an individual under AS 08.26.020 or 08.26.030 who 19 (1) is not certified by a nationally recognized organization in the field 20 of guardianships at the time of the application but is likely to become certified within 21 one year from the date of the license, and otherwise satisfies the licensing 22 requirements of AS 08.26.020 or 08.26.030; and 23 (2) satisfies the application requirements of AS 08.26.060. 24 (b) If the individual with a temporary license under (a) of this section submits 25 proof of certification by a nationally recognized organization in the field of 26 guardianships within one year from the date of the issuance of the temporary license, 27 the department shall issue the individual a license under AS 08.26.020 or 08.26.030 28 without requiring a new application. 29 (c) A temporary license issued under this section may not be renewed. 30 Sec. 08.26.060. Application requirements. To apply for a license under this 31 chapter, a person shall submit an application on a form provided by the department
01 and submit 02 (1) two complete fingerprint cards containing fingerprints and other 03 information required by the Department of Public Safety to obtain state and national 04 criminal history record information under AS 12.62 and AS 12.64; the fingerprints 05 must be the fingerprints of the applicant if the applicant is an individual, or, if the 06 applicant is an organization, fingerprints of the 07 (A) officers of the organization, if the applicant is a 08 corporation; 09 (B) members of the organization, if the applicant is a limited 10 liability company; 11 (C) partners of the organization, if the applicant is a 12 partnership; 13 (2) proof of the ability to be insured and bonded; 14 (3) a written waiver of confidentiality signed by the applicant allowing 15 the department to access at any time relevant complaint information made about the 16 applicant to adult protective services, the designated protection and advocacy agency, 17 the long-term care ombudsman, or an entity that certifies or licenses private 18 professional guardians or private professional conservators; 19 (4) a written statement signed by the applicant that the applicant will 20 allow immediate access at any time to the department to the file of a ward or protected 21 person and to financial information regarding the applicant, including corporate or 22 other business records; 23 (5) a detailed resume, including relevant experience, for each 24 employee and contractor of the applicant who may provide services to a ward or 25 protected person; 26 (6) payment of the application fee, any criminal history record 27 information checks fee charged under AS 12.62.160(d), and any other fees required by 28 the department; and 29 (7) if the applicant is not an individual, a copy of the documents under 30 which the applicant was formed, including articles of incorporation and bylaws if the 31 applicant is a corporation.
01 Sec. 08.26.070. Criminal history record information checks. (a) For each 02 applicant for a license under this chapter, the department shall submit the fingerprint 03 cards and other relevant information received with the application to the Department 04 of Public Safety and request the Department of Public Safety to 05 (1) submit the fingerprints to the Federal Bureau of Investigation for a 06 national criminal history record information check on the applicant; 07 (2) perform a state criminal history record information check on the 08 applicant; and 09 (3) provide the department with the results of the criminal history 10 record information checks made under (1) and (2) of this subsection. 11 (b) The department may not issue a license to a person under this section 12 unless the department receives the report required by (a)(3) of this section. 13 Article 2. Reports. 14 Sec. 08.26.080. Annual report. Within 30 days following the end of each 15 calendar year, a licensee shall submit to the department 16 (1) evidence of the initial and continuing existence of a bond and 17 professional liability insurance required by a court to be maintained by the guardian or 18 conservator; 19 (2) a list, including case numbers, of the wards and protected persons 20 for whom the licensee is acting as a private professional guardian or private 21 professional conservator; 22 (3) an accurate financial statement of the licensee; 23 (4) a letter stating that the licensee has filed all required court reports 24 in the previous calendar year; 25 (5) a copy of all of the licensee's federal tax documents filed with the 26 Internal Revenue Service and all of the licensee's correspondence with the Internal 27 Revenue Service; and 28 (6) a list of all persons currently employed by the licensee in the 29 business for which the license was issued. 30 Sec. 08.26.090. Submission of court reports to department. Upon request 31 of the department, a licensee shall submit to the department a copy of the reports that
01 the licensee is required to submit to a court under AS 13.26. 02 Article 3. Practices. 03 Sec. 08.26.100. Court appointment. A person who engages in the business 04 of providing services as a guardian or conservator may not be appointed a guardian or 05 a conservator in a court proceeding unless the person is licensed under this chapter or 06 exempt under AS 08.26.180. 07 Sec. 08.26.110. Fees. (a) A licensee may not receive a payment for services 08 rendered to a ward or a protected person until the licensee obtains court approval of a 09 proposed fee schedule. The fee schedule must include a statement of the hourly fee 10 for professional and administrative services and a monthly maximum amount that the 11 licensee can charge the ward or protected person. 12 (b) A payment requested by a licensee that exceeds the established monthly 13 maximum amount identified under (a) of this section may not be made unless the 14 payment is approved by the court. A request for court approval of a fee that exceeds 15 the established monthly maximum amount must include the following information for 16 the services covered by the fee: 17 (1) the name of the person who provided the service; 18 (2) the date when the service was provided; 19 (3) the hourly rate of compensation for the service; 20 (4) a description of the service; and 21 (5) the amount of time used to perform the service. 22 Sec. 08.26.120. Required notification. A licensee shall notify the department 23 immediately if 24 (1) the licensee fails to file a report to the court required by this 25 chapter; 26 (2) the licensee has been removed as a guardian or conservator for a 27 ward or protected person; 28 (3) the licensee has received a gift with a value of more than $100 29 from a ward or protected person during the two years before the appointment; 30 (4) the licensee has an interest in an enterprise that provides services to 31 the ward or protected person;
01 (5) an employee or contractor of the licensee is arrested for any 02 offense; or 03 (6) the licensee has filed for bankruptcy. 04 Article 4. Discipline. 05 Sec. 08.26.130. Grounds for disciplinary action. The department may take 06 disciplinary action against a person under AS 08.01.075 if the department determines 07 that the person 08 (1) obtained or attempted to obtain a license under this chapter through 09 deceit, fraud, or intentional misrepresentation; 10 (2) has not complied with the standards of conduct established by the 11 department under AS 13.26.001; 12 (3) forfeited a license in this or another jurisdiction as a result of 13 deceit, fraud, intentional misrepresentation, or professional incompetence; 14 (4) has been found by a court in this state to have engaged in 15 professional misconduct or incompetence; 16 (5) has advertised its services in a false or misleading manner; 17 (6) has been convicted, including a conviction based on a guilty plea or 18 plea of nolo contendere, of a felony or other crime that affects the person's ability to 19 provide the licensee's services competently and safely for the ward or protected 20 person; 21 (7) has been found to have abandoned, exploited, abused, or neglected 22 a vulnerable adult; in this paragraph, "vulnerable adult" has the meaning given in 23 AS 47.24.900; 24 (8) has failed to comply with this chapter or with a regulation adopted 25 under this chapter; 26 (9) has continued or attempted to practice after becoming unfit due to 27 professional incompetence; 28 (10) has failed to maintain certification by a nationally recognized 29 organization in the field of 30 (A) guardianships, if the person was issued an individual 31 private professional guardian license; or
01 (B) conservatorships, if the individual was issued an individual 02 private professional conservator license; 03 (11) the licensee is not able to be bonded and insured; or 04 (12) if the licensee has an organizational license, 05 (A) does not maintain a place of business in this state; 06 (B) is not in compliance with the state and federal requirements 07 that apply to the organization; or 08 (C) has an employee who provides the services of a private 09 professional guardian or private professional conservator for the organization 10 and is not licensed under this chapter. 11 Sec. 08.26.140. Petition by department. In addition to the disciplinary 12 actions allowed under AS 08.01.075, the department may petition a court to review the 13 conduct of a licensee if the department determines that the conduct of the licensee may 14 not be in the best interests of the ward or protected person. 15 Article 5. General Provisions. 16 Sec. 08.26.180. Exemption. A financial institution regulated by the federal 17 government or a financial institution regulated under AS 06 by the division in the 18 department that regulates banking, securities, and corporations, is not required to be 19 licensed under this chapter in order to engage in the business of providing services as a 20 guardian or a conservator or be appointed as a private professional guardian or a 21 private professional conservator by a court. In this subsection, "financial institution" 22 does not include a person who is exempt under AS 06.26.020 or who has received an 23 exemption under AS 06.26.200. 24 Sec. 08.26.190. Definitions. In this chapter, 25 (1) "conservator" has the meaning given in AS 13.06.050; 26 (2) "department" means the Department of Community and Economic 27 Development; 28 (3) "guardian" has the meaning given in AS 13.06.050; 29 (4) "licensee" means a person licensed under this chapter; 30 (5) "organizational license" means a license issued under 31 AS 08.26.040;
01 (6) "private professional conservator" means a person who acts as a 02 conservator under AS 13.26.165 - 13.26.320 and receives compensation for acting in 03 that capacity; 04 (7) "private professional conservator license" means a license issued 05 under AS 08.26.030; 06 (8) "private professional guardian" means a person who acts as a 07 guardian under AS 13.26.030 - 13.26.155 and receives compensation for acting in that 08 capacity; 09 (9) "private professional guardian license" means a license issued 10 under AS 08.26.040; 11 (10) "protected person" has the meaning given in AS 13.26.005; 12 (11) "ward" has the meaning given in AS 13.26.005. 13 * Sec. 3. AS 13.26 is amended by adding a new section to article 1 to read: 14 Sec. 13.26.001. Adoption of standards of practice. It is the policy of the 15 state that all guardians and conservators, when making decisions for their wards or 16 protected persons, shall abide by the highest ethical standards of decision making and 17 shall consider the standards of practice adopted by the department by regulation. The 18 department shall adopt standards of practice for guardians and conservators and, 19 before doing so, shall review the standards of practice adopted by a national 20 organization with expertise in the area of standards of practice for guardians and 21 conservators, such as the National Guardianship Association. 22 * Sec. 4. AS 13.26.005 is amended by adding new paragraphs to read: 23 (11) "department" means the Department of Community and 24 Economic Development; 25 (12) "private professional conservator" means a person, other than the 26 public guardian, who is licensed under AS 08.26 or exempt under AS 08.26.180; 27 (13) "private professional guardian" means a person, other than the 28 public guardian, who is licensed under AS 08.26 or exempt under AS 08.26.180. 29 * Sec. 5. AS 13.26.013(a) is amended to read: 30 (a) A notice of the filing of a petition, a summary of all formal proceedings, 31 and a dispositional order or modification or termination of a dispositional order
01 relating to a proceeding under this chapter shall be available for public inspection. All 02 other information contained in the court records relating to a proceeding under this 03 chapter is confidential and available only upon court order for good cause shown or to 04 the following persons: 05 (1) the person who is the subject of the court record, the person's 06 attorney, or the person's guardian ad litem; 07 (2) a person designated by the person who is the subject of the court 08 record; 09 (3) the guardian of the person who is the subject of the court record or 10 the attorney of the guardian; 11 (4) the conservator of the estate of the person who is the subject of the 12 court record or the attorney of the conservator; 13 (5) a party to the proceeding and the person's attorney; 14 (6) the judge or judges hearing or reviewing the matter; [AND] 15 (7) a member of the clerical or administrative staff of the court if 16 access is essential for authorized internal administrative purposes; and 17 (8) the department when a private professional guardian or a 18 private professional conservator is involved in the proceeding. 19 * Sec. 6. AS 13.26 is amended by adding a new section to article 1 to read: 20 Sec. 13.26.025. Appointment of a guardian ad litem. (a) Upon the request 21 of a ward, protected person, or respondent, or the attorney of a ward, protected person, 22 or respondent, the court shall appoint a guardian ad litem to protect the rights of the 23 ward, protected person, or respondent in proceedings under AS 13.26.090 - 13.26.320. 24 The court shall make the appointment if the court is satisfied that, because of impaired 25 ability effectively to receive and evaluate information regarding the proceedings or 26 because of impaired ability to communicate decisions regarding the proceedings, the 27 ward, protected person, or respondent is incapable of determining the ward's, protected 28 person's, or respondent's position regarding the issues involved in the pending 29 proceedings, and 30 (1) a guardian or conservator has not been appointed; 31 (2) the interests of the ward, protected person, or respondent conflict
01 with those of the ward's, protected person's, or respondent's guardian or conservator; 02 or 03 (3) the appointment is otherwise in the interests of justice. 04 (b) The guardian ad litem shall assist the ward, protected person, or 05 respondent in determining the ward's, protected person's, or respondent's interests in 06 regard to the legal proceedings that involve the ward, protected person, or respondent. 07 If the ward, protected person, or respondent is entirely incapable of determining those 08 interests, the guardian ad litem shall make the determination of those interests and 09 advise the court and counsel for all parties accordingly. The guardian ad litem shall 10 (1) inquire thoroughly into all the circumstances that a prudent ward, 11 protected person, or respondent would consider in determining the ward's, protected 12 person's, or respondent's own interests in the proceedings, including any prior relevant 13 statements made or actions taken by the ward, protected person, or respondent; and 14 (2) encourage the ward, protected person, or respondent to participate, 15 to the maximum extent possible, in all decisions and to act on the ward's, protected 16 person's, or respondent's own behalf on all matters in which the ward, protected 17 person, or respondent is able. 18 (c) The attorney for the ward, protected person, or respondent may be 19 appointed as the guardian ad litem for the ward, protected person, or respondent if 20 there is no other party readily available and able to serve as a guardian ad litem and 21 the court determines that the appointment is appropriate under the standards set out in 22 (a) of this section. When a person who has been appointed by the court as the attorney 23 for the ward, protected person, or respondent is appointed to act as the guardian ad 24 litem for the ward, protected person, or respondent under this subsection, the 25 appointment of the person as the attorney ends, and the person appointed as the 26 guardian ad litem shall act exclusively as a guardian ad litem for the ward, protected 27 person, or respondent. 28 (d) The office of public advocacy shall provide guardian ad litem services to 29 persons who would suffer financial hardship or become dependent upon a government 30 agency or a private person or agency if the services were not to be provided at state 31 expense.
01 * Sec. 7. AS 13.26.111(b) is amended to read: 02 (b) To the maximum extent possible, the ward or respondent shall remain 03 responsible for determining the interests of the ward or respondent. However, the 04 attorney for the ward or respondent may seek appointment of a guardian ad litem if the 05 circumstances of AS 13.26.025 [AS 13.26.112] apply. 06 * Sec. 8. AS 13.26.117 is amended to read: 07 Sec. 13.26.117. Guardianship implementation report. Within 90 days after 08 distribution of the order of appointment as guardian, the guardian shall submit to the 09 court a report. The report must describe the guardian's program for implementing the 10 guardianship plan. The primary goal of the program described in the report must be, 11 to the maximum extent possible, to develop or regain the ward's abilities to handle the 12 ward's own affairs. The report must consider housing, medical care, and educational 13 and vocational needs and resources. In developing the report, the guardian shall 14 consult with the ward to the maximum extent possible. [THE OFFICE OF PUBLIC 15 GUARDIAN SHALL CONTACT THE GUARDIAN TO OFFER ASSISTANCE IN 16 PREPARING THE REPORT.] The report must specify the services that are necessary 17 to meet the essential requirements for the ward's physical health or safety and the 18 means for obtaining the services. The report must specify the manner in which the 19 guardian will exercise and share decision-making authority and other items that will 20 assist in fulfilling the needs of the ward, the terms of the guardianship order, and the 21 duties of the guardian. 22 * Sec. 9. AS 13.26.118 is amended to read: 23 (a) A guardian shall submit a report to the court [OR REQUEST THAT A 24 VISITOR BE APPOINTED TO PREPARE AND SUBMIT A REPORT] at least 25 annually. In addition, every third year, the court shall appoint a visitor to file a 26 report reviewing the guardianship during the period since the last visitor's 27 report, if any [A COURT-APPOINTED VISITOR SHALL PREPARE THE 28 REPORT AT LEAST ONCE IN EACH THREE-YEAR PERIOD]. The guardian 29 shall submit an additional report to the court when 30 (1) the court orders it; 31 (2) there is a significant change in the capacity of the ward to meet the
01 essential requirements for health and safety or to protect the ward's rights; 02 (3) the guardian resigns or is removed; 03 (4) the guardianship is terminated; or 04 (5) the ward requests it. 05 (b) The report of the guardian must contain, but is not limited to, the 06 following information: 07 (1) the name and address of the ward and the guardian; 08 (2) the ward's present mental, physical, and social conditions and 09 present living arrangements and the ward's opinion of these arrangements; 10 (3) changes in the capacity of the ward to meet essential requirements 11 for physical health and safety; 12 (4) the services being provided to the ward; 13 (5) the significant actions taken by the guardian during the reporting 14 period in regard to the ward; 15 (6) a financial accounting of the estate that has been subject to the 16 possession or control of the guardian; 17 (7) a list of the number and nature of the contacts between the guardian 18 and ward if the ward does not reside with the guardian; 19 (8) any other information requested by the court or necessary or 20 desirable in the opinion of the guardian [OR VISITOR]. 21 * Sec. 10. AS 13.26.118 is amended by adding a new subsection to read: 22 (c) The visitor report required by (a) of this section must include 23 (1) the name and address of the ward and the guardian; 24 (2) the services being provided to the ward by or through the guardian; 25 (3) the significant actions taken by the guardian during the reporting 26 period in regard to the ward; 27 (4) a financial accounting of the estate that has been subject to the 28 possession or control of the guardian; 29 (5) a list of the number and nature of the contacts between the 30 conservator and the ward if the ward does not reside with the guardian; 31 (6) any other information requested by the court or necessary or
01 desirable in the opinion of the visitor. 02 * Sec. 11. AS 13.26.120 is amended by adding a new subsection to read: 03 (b) Notwithstanding (a) of this section, if a deceased ward does not have a 04 living family member or if an individual interested in the ward is not available, the 05 guardian of a ward who dies may arrange for the body of the ward to be transported to 06 a funeral home and may make funeral and burial arrangements for the deceased ward. 07 The guardian may also apply for assistance with burial expenses from the state or a 08 municipality if the estate of the ward does not have sufficient money to pay for burial. 09 * Sec. 12. AS 13.26.125(a) is amended to read: 10 (a) On petition of the ward, the guardian, or any person interested in the 11 ward's welfare, or on the court's own motion, the court may (1) review and amend a 12 decision of a guardian; or (2) if alternatives that are less restrictive than guardianship 13 or less restrictive than the existing guardianship plan would assist the ward in meeting 14 essential requirements for physical health and safety, modify the provisions of its 15 order to (A) amend the guardianship plan or the responsibilities of the guardian; (B) 16 remove a guardian and appoint a successor; or (C) terminate the guardianship. On 17 petition of the guardian, the court may accept a resignation and make any other order 18 that may be appropriate. 19 * Sec. 13. AS 13.26.131(b) is amended to read: 20 (b) Subject to (c) and (d) of this section, the respondent shall bear the costs of 21 the attorney appointed under AS 13.26.106(b), of the expert appointed under 22 AS 13.26.109(d), of the guardian ad litem appointed under AS 13.26.025 23 [AS 13.26.112], and of other court and guardianship costs incurred under this chapter. 24 * Sec. 14. AS 13.26.145(a) is amended to read: 25 (a) The court may appoint a competent person, including a private 26 professional guardian, or the public guardian, [OR A PRIVATE ASSOCIATION 27 OR NONPROFIT CORPORATION WITH A GUARDIANSHIP PROGRAM FOR 28 INCAPACITATED PERSONS,] as the guardian of an incapacitated person. 29 * Sec. 15. AS 13.26.145(c) is amended to read: 30 (c) A person may be appointed as the guardian of an incapacitated person 31 notwithstanding the provisions of (b) of this section if the person is the spouse, adult
01 child, parent, or sibling of the incapacitated person and the court determines that the 02 potential conflict of interest is insubstantial and that the appointment would clearly be 03 in the best interests of the incapacitated person. When appointing a relative or 04 friend of the incapacitated person as the guardian of an incapacitated person, the 05 court shall require that the proposed guardian complete one hour of mandatory 06 education on the basics of guardianship before the appointment or within 30 days 07 after the appointment. 08 * Sec. 16. AS 13.26.145(d) is amended to read: 09 (d) Subject to (e) and (f) of this section, qualified persons have priority for 10 appointment as guardian in the following order: 11 (1) an individual [A PERSON, ASSOCIATION,] or organization 12 [PRIVATE NONPROFIT CORPORATION] nominated by the incapacitated person 13 [,] if, at the time of the nomination, the incapacitated person had, in the opinion of the 14 court, sufficient mental capacity to make an informed [A REASONABLY 15 INTELLIGENT] choice; 16 (2) the spouse of the incapacitated person; 17 (3) an adult child or parent of the incapacitated person; 18 (4) a relative of the incapacitated person with whom the incapacitated 19 person has resided for more than six months during the year before the filing of the 20 petition; 21 (5) a relative or friend who has demonstrated a sincere, longstanding 22 interest in the welfare of the incapacitated person; 23 (6) a private professional guardian [ASSOCIATION OR 24 NONPROFIT CORPORATION WITH A GUARDIANSHIP PROGRAM FOR 25 INCAPACITATED PERSONS]; 26 (7) the public guardian. 27 * Sec. 17. AS 13.26.145(e) is repealed and reenacted to read: 28 (e) When more than one person has equal priority under (d) of this section, the 29 court shall select the person it considers to be the best qualified. 30 * Sec. 18. AS 13.26.145 is amended by adding a new subsection to read: 31 (f) When in the best interest of the incapacitated person, a court may decline
01 to appoint a person who has priority under (d) of this section as guardian of an 02 incapacitated person and may appoint as guardian a person who has a lower priority 03 than another person or who does not have a priority. 04 * Sec. 19. AS 13.26.150(c) is amended to read: 05 (c) A full guardian of an incapacitated person has the same powers and duties 06 respecting the ward that a parent has respecting an unemancipated minor child except 07 that the guardian is not liable for the care and maintenance of the ward and is not 08 liable, solely by reason of the guardianship, to a person who is harmed by acts of the 09 ward. Except as modified by order of the court, a full guardian's powers and duties 10 include, but are not limited to, the following: 11 (1) the guardian is entitled to custody of the person of the ward and 12 shall assure that the ward has a place of abode in the least restrictive setting consistent 13 with the essential requirements for the ward's physical health and safety; 14 (2) the guardian shall assure the care, comfort, and maintenance of the 15 ward; 16 (3) the guardian shall assure that the ward receives the services 17 necessary to meet the essential requirements for the ward's physical health and safety 18 and to develop or regain, to the maximum extent possible, the capacity to meet the 19 ward's needs for physical health and safety; 20 (4) the guardian shall assure through the initiation of court action and 21 other means that the ward enjoys all personal, civil, and human rights to which the 22 ward is entitled; 23 (5) the guardian may give consents or approvals necessary to enable 24 the ward to receive medical or other professional care, counsel, treatment, or services 25 except as otherwise limited by (e) of this section; 26 (6) the guardian has the powers [IF A CONSERVATOR FOR THE 27 ESTATE OF THE WARD HAS NOT BEEN APPOINTED, THE GUARDIAN MAY 28 RECEIVE MONEY] and duties of a conservator under this chapter [PROPERTY 29 DELIVERABLE TO THE WARD AND APPLY THE MONEY AND PROPERTY 30 FOR SUPPORT, CARE, AND EDUCATION OF THE WARD]; however, the 31 guardian may not apply the ward's money or property for the services as guardian or
01 for room and board that the guardian[,] or the guardian's spouse, parent, or child has 02 furnished the ward unless, before payment, the court finds that the ward is financially 03 able to pay and that the charge is reasonable; notice of a request for payment approval 04 shall be provided to at least one relative of the ward if possible; the guardian shall 05 exercise care to conserve any excess money or property for the ward's needs; 06 (7) if a conservator of the estate of the ward has also been appointed, 07 the guardian shall pay all of the ward's estate received by the guardian [IN EXCESS 08 OF THE MONEY EXPENDED TO MEET CURRENT EXPENSES FOR SUPPORT, 09 CARE, AND EDUCATION OF THE WARD,] to the conservator for management as 10 provided in AS 13.26.165 - 13.26.315 [, AND THE GUARDIAN SHALL 11 ACCOUNT TO THE CONSERVATOR FOR MONEY EXPENDED]. 12 * Sec. 20. AS 13.26.195(b) is amended to read: 13 (b) Upon receipt of a petition for appointment of a conservator or other 14 protective order for reasons other than minority, the court shall set a date for hearing. 15 Unless the person to be protected has counsel of the person's own choice, the court 16 must appoint a lawyer to represent the person [WHO THEN HAS THE POWERS 17 AND DUTIES OF A GUARDIAN AD LITEM]. If the alleged disability is mental 18 illness, mental deficiency, physical illness or disability, advanced age, chronic use of 19 drugs, or chronic intoxication, the court may direct that the person to be protected be 20 examined by a physician designated by the court, preferably a physician who is not 21 connected with any institution in which the person is a patient or is detained. The 22 court may send a visitor to interview the person to be protected. The visitor may be a 23 guardian ad litem or an officer or employee of the court. 24 * Sec. 21. AS 13.26.210 is repealed and reenacted to read: 25 Sec. 13.26.210. Who may be appointed conservator; priorities. (a) The 26 court may appoint a competent person, including a private professional guardian or the 27 public guardian, as the conservator of the estate of a protected person. 28 (b) The court may not appoint a person to be a conservator of a protected 29 person if the person 30 (1) provides, or is likely to provide during the conservatorship, 31 substantial services to the protected person in a professional or business capacity,
01 other than in the capacity of conservator; 02 (2) is or is likely to become, during the conservatorship, a creditor of 03 the protected person, other than in the capacity of conservator; 04 (3) is likely to have, during the conservatorship, interests that may 05 conflict with those of the protected person; or 06 (4) is employed by a person who would be disqualified under (1) - (3) 07 of this subsection. 08 (c) A person may be appointed as the conservator of a protected person even if 09 (b) of this section applies if the person is the spouse, adult child, parent, or sibling of 10 the protected person and if the court determines that the potential conflict of interest is 11 not substantial and that the appointment would clearly be in the best interests of the 12 protected person. 13 (d) Subject to (e) and (f) of this section, qualified persons have priority for 14 appointment in the following order: 15 (1) an individual or qualified conservator nominated by the protected 16 person if the protected person is 14 or more years of age and had, in the opinion of the 17 court, sufficient mental capacity to make an informed choice; 18 (2) the spouse of the protected person; 19 (3) an adult child or a parent of the protected person; 20 (4) a relative of the protected person with whom the protected person 21 has resided for more than six months during the year before the filing of the petition; 22 (5) a relative or friend of the protected person who has demonstrated a 23 sincere and longstanding interest in the welfare of the protected person; 24 (6) a private professional conservator; 25 (7) the public guardian. 26 (e) When more than one person has equal priority under (d) of this section, the 27 court shall select the person it considers to be the best qualified. 28 (f) When in the best interest of the protected person, a court may decline to 29 appoint a person who has priority under (d) of this section as conservator of the 30 protected person and may appoint as conservator a person who has a lower priority 31 than another person or who does not have a priority.
01 (g) In addition to any other requirement of this section, when appointing a 02 relative or friend of the incapacitated person as the conservator of a protected person, 03 the court shall require that the proposed conservator complete one hour of mandatory 04 education on the basics of conservatorship before the appointment or within 30 days 05 after the appointment. If the person is appointed based on the person's agreement to 06 complete the mandatory education and the person fails to complete the mandatory 07 education within the 30 days, the court shall remove the conservator and appoint a 08 successor. 09 * Sec. 22. AS 13.26.250 is amended to read: 10 Sec. 13.26.250. Inventory, implementation report, and records. Within 90 11 days after distribution of the order of appointment, every conservator shall prepare 12 and file with the appointing court a conservator implementation report and a 13 complete inventory of the estate of the protected person together with an oath or 14 affirmation that it is complete and accurate so far as the conservator is informed. The 15 conservator shall provide a copy of it to the protected person if the protected person 16 can be located, has attained the age of 14 years, and has sufficient mental capacity to 17 understand these matters, and to any parent or guardian with whom the protected 18 person resides. The conservator shall keep suitable records of the administration and 19 exhibit them on request of any interested person. 20 * Sec. 23. AS 13.26.255 is amended to read: 21 Sec. 13.26.255. Accounts. A conservator shall submit a report to the court 22 at least every year. In addition, a [EVERY] conservator shall [MUST] account to 23 the court for administration of the trust upon resignation or removal [,] and at other 24 times as the court may direct. On termination of the protected person's minority or 25 disability, a conservator may account to the court or to the former protected person or 26 the protected person's personal representative. Subject to appeal or vacation within 27 the time permitted, an order, made upon notice and hearing, allowing an intermediate 28 account of a conservator, adjudicates as to the conservator's liabilities concerning the 29 matters considered in connection with it; and an order, made upon notice and hearing, 30 allowing a final account, adjudicates as to all previously unsettled liabilities of the 31 conservator to the protected person or the protected person's successors relating to the
01 conservatorship. In connection with any account, the court may require a conservator 02 to submit to a physical check of the estate in the conservator's control, to be made in 03 any manner the court may specify. 04 * Sec. 24. AS 13.26 is amended by adding a new section to read: 05 Sec. 13.26.257. Visitor reports. (a) The initial visitor report of a visitor 06 appointed under AS 13.26.195(b) must include 07 (1) the results and analyses of medical and other tests and 08 examinations performed that describe the proposed protected person's mental, 09 emotional, physical, and educational condition, adaptive behavior, and social skills, 10 and that specify the data on which the description is based; 11 (2) recommendations regarding the types and extent of assistance, if 12 any, necessary to meet the essential requirements for managing the property and 13 affairs of the proposed protected person; 14 (3) an evaluation of the proposed protected person's need for mental 15 health treatment and whether there is a substantial probability that available treatment 16 will significantly improve the proposed protected person's mental condition; 17 (4) an evaluation of the proposed protected person's need for 18 educational or vocational assistance and whether the assistance can be made available 19 to the protected person; 20 (5) an evaluation of the probability that the incapacity may 21 significantly lessen, and the type of services or treatment that will facilitate 22 improvement in the condition or skills of the proposed protected person; 23 (6) a list of the names and addresses of all individuals who examined, 24 interviewed, or investigated the proposed protected person, and the names and 25 addresses of all persons contacted in preparation of the visitor report; 26 (7) a summary of the information that 27 (A) was supplied by the person described in (6) of this 28 subsection; and 29 (B) supports the conclusions of the visitor report; 30 (8) a description of the alternatives to conservatorship that were 31 considered and not recommended and an explanation of why they are not feasible to
01 meet the needs of the proposed protected person; 02 (9) a specification of the financial resources of the proposed protected 03 person, the proposed protected person's entitlements to insurance benefits, and 04 publicly operated or sponsored health, mental health, and welfare assistance that might 05 be employed in the provision of services to the proposed protected person; and 06 (10) if conservatorship is recommended, a conservatorship outline that 07 identifies 08 (A) potential conservators; 09 (B) the specific services necessary and available to protect the 10 proposed protected person from serious damage to the proposed protected 11 person's property and affairs; 12 (C) the means by which the services described in (B) of this 13 paragraph may be financed; 14 (D) the specific, least restrictive authority needed by the 15 conservator to provide the services described in (B) of this paragraph. 16 (b) In addition to any initial visitor report provided under (a) of this section, 17 every third year, the court may appoint a visitor to file a report reviewing the 18 conservatorship during the period since the last visitor report, if any. 19 (c) In addition to the reports under (a) and (b) of this section, at any time 20 during a conservatorship, a court may appoint a visitor to file a report reviewing the 21 conservatorship during the period since the last visitor report, if any. 22 (d) A visitor report provided under (b) or (c) of this section must include 23 (1) the name and address of the protected person and the conservator; 24 (2) the services being provided to the protected person by or through 25 the conservator; 26 (3) the significant actions taken by the conservator during the reporting 27 period in regard to the protected person; 28 (4) a financial accounting of the estate that has been subject to the 29 possession or control of the conservator; 30 (5) a list of the number and nature of the contacts between the 31 conservator and the protected person if the protected person does not reside with the
01 conservator; 02 (6) any other information requested by the court or necessary or 03 desirable in the opinion of the visitor. 04 * Sec. 25. AS 13.26.285(e) is amended to read: 05 (e) If a protected person dies, the conservator shall deliver to the court for 06 safekeeping any will of the deceased protected person that [WHICH] may have come 07 into the conservator's possession and [,] inform the executor or a beneficiary named in 08 the will that the will has been so delivered. Once a conservator knows that the 09 protected person has died, the conservator may not exercise authority over the 10 protected person's affairs and estate except to pay reasonable burial expenses 11 and to preserve, account for, and transfer control of assets to a personal 12 representative, a temporary property custodian appointed by the court, or a 13 person authorized to take custody of personal property by affidavit under 14 AS 13.16.680 [, AND RETAIN THE ESTATE FOR DELIVERY TO A DULY 15 APPOINTED PERSONAL REPRESENTATIVE OF THE DECEDENT OR OTHER 16 PERSONS ENTITLED TO IT]. If, after 40 days from the death of the protected 17 person, no other person has been appointed personal representative and no application 18 or petition for appointment is before the court, the conservator may apply to exercise 19 the powers and duties of a personal representative in order to proceed with 20 administering and distributing the decedent's estate without additional or further 21 appointment. Upon application for an order granting the powers of a personal 22 representative to a conservator, after notice to any person demanding notice under 23 AS 13.16.070 and to any person nominated executor in any will of which the applicant 24 is aware, the court may order the conferral of the power upon determining that there is 25 no objection, and endorse the letters of the conservator to note that the formerly 26 protected person is deceased and that the conservator has acquired all of the powers 27 and duties of a personal representative. The making and entry of an order under this 28 section has the effect of an order of appointment of a personal representative as 29 provided in AS 13.16.115 and 13.16.245 - 13.16.655 [AS 13.16.245 - 13.16.655] 30 except that estate in the name of the conservator, after administration, may be 31 distributed to the decedent's successors without prior retransfer to the conservator as
01 personal representative. 02 * Sec. 26. AS 13.26.300(a) is amended to read: 03 (a) A conservator shall pay from the estate all just claims against the estate 04 and against the protected person arising before or after the conservatorship was 05 established but before the protected person dies, upon their presentation and 06 allowance. A claim is considered presented on the first to occur of receipt of the 07 written statement of claim by the conservator [,] or the filing of the claim with the 08 court. A presented claim is allowed if it is not disallowed by written statement mailed 09 by the conservator to the claimant within 60 days after its presentation. The 10 presentation of a claim tolls any statute of limitations relating to the claim until 30 11 days after its disallowance. A claim may be presented by either of the following 12 methods: 13 (1) the claimant may deliver or mail to the conservator a written 14 statement of the claim indicating its basis, the name and address of the claimant, and 15 the amount claimed; 16 (2) the claimant may file a written statement of the claim, in the form 17 prescribed by rule, with the clerk of the court and deliver or mail a copy of the 18 statement to the conservator. 19 * Sec. 27. AS 13.26.380(b) is amended to read: 20 (b) The public guardian, when appointed as guardian or conservator, shall 21 endeavor, for as long as practical, to find a suitable private guardian or conservator for 22 the public guardian's ward or protected person. For each ward and protected person, 23 the public guardian shall include in its annual report under AS 13.26.118(a) to the 24 court having jurisdiction of the ward or protected person information on the 25 availability of [, AT LEAST ONCE EVERY SIX MONTHS, EFFORTS TO FIND] a 26 private guardian or conservator. 27 * Sec. 28. AS 44.21.410(a) is amended to read: 28 (a) The office of public advocacy shall 29 (1) perform the duties of the public guardian under AS 13.26.360 - 30 13.26.410; 31 (2) provide visitors and experts in guardianship proceedings under
01 AS 13.26.131; 02 (3) provide guardian ad litem services to children in child protection 03 actions under AS 47.17.030(e) and to wards and respondents in guardianship 04 proceedings who will suffer financial hardship or become dependent upon a 05 government agency or a private person or agency if the services are not provided at 06 state expense under AS 13.26.025 [AS 13.26.112]; 07 (4) provide legal representation in cases involving judicial bypass 08 procedures for minors seeking abortions under AS 18.16.030, in guardianship 09 proceedings to respondents who are financially unable to employ attorneys under 10 AS 13.26.106(b), to indigent parties in cases involving child custody in which the 11 opposing party is represented by counsel provided by a public agency, to indigent 12 parents or guardians of a minor respondent in a commitment proceeding concerning 13 the minor under AS 47.30.775; 14 (5) provide legal representation and guardian ad litem services under 15 AS 25.24.310; in cases arising under AS 47.15 (Uniform Interstate Compact on 16 Juveniles); in cases involving petitions to adopt a minor under AS 25.23.125(b) or 17 petitions for the termination of parental rights on grounds set out in 18 AS 25.23.180(c)(3); in cases involving petitions to remove the disabilities of a minor 19 under AS 09.55.590; in children's proceedings under AS 47.10.050(a) or under 20 AS 47.12.090; in cases involving appointments under AS 18.66.100(a) in petitions for 21 protective orders on behalf of a minor; and in cases involving indigent persons who 22 are entitled to representation under AS 18.85.100 and who cannot be represented by 23 the public defender agency because of a conflict of interests; 24 (6) develop and coordinate a program to recruit, select, train, assign, 25 and supervise volunteer guardians ad litem from local communities to aid in delivering 26 services in cases in which the office of public advocacy is appointed as guardian ad 27 litem; 28 (7) provide guardian ad litem services in proceedings under 29 AS 12.45.046; 30 (8) establish a fee schedule and collect fees for services provided by 31 the office, except as provided in AS 18.85.120 or when imposition or collection of a
01 fee is not in the public interest as defined under regulations adopted by the 02 commissioner of administration; 03 (9) provide visitors and guardians ad litem in proceedings under 04 AS 47.30.839; 05 (10) provide legal representation to an indigent parent of a child with a 06 disability; in this paragraph, "child with a disability" has the meaning given in 07 AS 14.30.350. 08 * Sec. 29. AS 44.21.440 is amended by adding a new subsection to read: 09 (b) The office of public advocacy may not use improper pressure to influence 10 the professional judgment of a person who is paid by the office of public advocacy to 11 act as an attorney, a guardian ad litem, or a visitor for a guardianship or 12 conservatorship established AS 13.26. 13 * Sec. 30. AS 44.62.330(a) is amended by adding a new paragraph to read: 14 (61) the Department of Community and Economic Development as to 15 the licensing and regulation of private professional guardians and conservators under 16 AS 08.26. 17 * Sec. 31. AS 13.26.105(d), 13.26.112, and 13.26.135(a)(8) are repealed. 18 * Sec. 32. The uncodified law of the State of Alaska is amended by adding a new section to 19 read: 20 INDIRECT COURT RULE AMENDMENTS. (a) AS 08.26.100, enacted by sec. 2 of 21 this Act, has the effect of changing Rule 17(c), Alaska Rules of Civil Procedure, by restricting 22 the persons that the court may appoint as guardians or conservators in some situations and, 23 therefore, has the effect of limiting the orders that the court is authorized to make under Rule 24 17(c) with regard to the protection of infants or incompetent persons. 25 (b) AS 13.26.120(b), enacted by sec. 11 of this Act, has the effect of changing Rule 26 16(f), Alaska Rules of Probate Procedure, by giving guardians additional authority to perform 27 certain acts for a deceased ward. 28 (c) AS 13.26.250, as amended by sec. 22 of this Act, has the effect of changing Rule 29 17(e), Alaska Rules of Probate Procedure, by changing when a report is due and by adding 30 additional material to be included in the report. 31 * Sec. 33. The uncodified law of the State of Alaska is amended by adding a new section to
01 read: 02 TRANSITION. (a) The court shall appoint a visitor under AS 13.26.118(a), amended 03 by sec. 9 of this Act, for a guardianship that was in existence on and before the effective date 04 of sec. 9 of this Act within 90 days after the effective date of sec. 9 of this Act if the 05 guardianship has been in existence for three or more years on the effective date of sec. 9 of 06 this Act. 07 (b) A person who, before the effective date of sec. 2 of this Act, has been appointed 08 by the court under AS 13.26 to be a guardian or a conservator, whose appointment is still in 09 effect on the effective date of sec. 2 of this Act, and who are required to be licensed under 10 AS 08.26, enacted by sec. 2 of this Act, shall comply with the licensing requirements of 11 AS 08.26 within 60 days after the date when the regulations for sec. 2 of this Act are adopted 12 under sec. 34 of this Act. If the person does not comply within the 60 days, the court may 13 remove the guardian or conservator and appoint a successor. 14 * Sec. 34. The uncodified law of the State of Alaska is amended by adding a new section to 15 read: 16 TRANSITION: REGULATIONS. The Department of Community and Economic 17 Development may proceed to adopt regulations necessary to implement the changes made by 18 secs. 1 and 2 of this Act. The regulations take effect under AS 44.62 (Administrative 19 Procedure Act), but not before the effective date of secs. 1 and 2 of this Act. 20 * Sec. 35. The uncodified law of the State of Alaska is amended by adding a new section to 21 read: 22 CONDITIONAL EFFECT. Each of AS 08.26.100, as enacted by sec. 2 of this Act, 23 AS 13.26.120(b), as enacted by sec. 11 of this Act, and AS 13.26.250, as amended by sec. 22 24 of this Act, takes effect only if the applicable subsection of sec. 32 of this Act receives the 25 two-thirds majority vote of each house required by art. IV, sec. 15, Constitution of the State of 26 Alaska. 27 * Sec. 36. Section 34 of this Act takes effect immediately under AS 01.10.070(c). 28 * Sec. 37. Except for sec. 34 of this Act, this Act takes effect January 1, 2005.