CSSB 86(JUD)(efd am): "An Act relating to the protection of property of persons under disability and minors; relating to the crime of violating a protective order concerning certain vulnerable persons; relating to aggravating factors at sentencing for offenses concerning a victim 65 years or older; relating to the protection of vulnerable adults; making conforming amendments; amending Rules 12(h) and 45(a), Alaska Rules of Criminal Procedure, Rule 77, Alaska Rules of Civil Procedure, Rule 17, Alaska Rules of Probate Procedure, and Rule 9, Alaska Rules of Administration; and providing for an effective date."
00 CS FOR SENATE BILL NO. 86(JUD)(efd am) 01 "An Act relating to the protection of property of persons under disability and minors; 02 relating to the crime of violating a protective order concerning certain vulnerable 03 persons; relating to aggravating factors at sentencing for offenses concerning a victim 65 04 years or older; relating to the protection of vulnerable adults; making conforming 05 amendments; amending Rules 12(h) and 45(a), Alaska Rules of Criminal Procedure, 06 Rule 77, Alaska Rules of Civil Procedure, Rule 17, Alaska Rules of Probate Procedure, 07 and Rule 9, Alaska Rules of Administration; and providing for an effective date." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. AS 08.29.200(b) is amended to read: 10 (b) Notwithstanding (a) of this section, a person licensed under this chapter 11 shall report incidents of 12 (1) child abuse or neglect as required by AS 47.17; 13 (2) harm or assaults suffered by a vulnerable [AN ELDERLY
01 PERSON OR DISABLED] adult as required by AS 47.24. 02 * Sec. 2. AS 08.63.200(b) is amended to read: 03 (b) Notwithstanding (a) of this section, a person licensed under this chapter 04 shall report incidents of 05 (1) child abuse or neglect as required by AS 47.17; 06 (2) harm or assaults suffered by a vulnerable [AN ELDERLY 07 PERSON OR DISABLED] adult as required by AS 47.24. 08 * Sec. 3. AS 11.56.740(a) is amended to read: 09 (a) A person commits the crime of violating a protective order if the person is 10 subject to a protective order 11 (1) issued or filed under AS 18.66 and containing a provision listed in 12 AS 18.66.100(c)(1) - (7) and knowingly commits or attempts to commit an act with 13 reckless disregard that the act violates or would violate a provision of the protective 14 order; [OR] 15 (2) issued under AS 18.65.850, 18.65.855, or 18.65.860 and knowingly 16 commits or attempts to commit an act that violates or would violate a provision listed 17 in AS 18.65.850(c)(1) - (3); or 18 (3) issued under AS 13.26.207 - 13.26.209 and knowingly commits 19 or attempts to commit an act with reckless disregard that the act violates or 20 would violate a provision of the protective order. 21 * Sec. 4. AS 11.56.740(c) is amended to read: 22 (c) In this section, "protective order" means an order issued or filed under 23 AS 13.26.207 - 13.26.209, AS 18.65.850 - 18.65.870, or AS 18.66.100 - 18.66.180. 24 * Sec. 5. AS 12.55.155(c) is amended by adding a new paragraph to read: 25 (35) the defendant knowingly directed the conduct constituting the 26 offense at a victim because that person was 65 years of age or older. 27 * Sec. 6. AS 13.26.165 is amended to read: 28 Sec. 13.26.165. Protective proceedings. Upon petition and after notice and 29 hearing in accordance with the provisions of AS 13.26.165 - 13.26.315, the court may 30 appoint a conservator or issue another [MAKE OTHER] protective order for cause as 31 follows:
01 (1) appointment of a conservator or other protective order may be 02 made in relation to the estate and affairs of a minor if the court determines that 03 (A) a minor owns money or property that requires management 04 or protection that [WHICH] cannot otherwise be provided; 05 (B) the minor [,] has or may have business affairs that 06 [WHICH] may be jeopardized or prevented by the status of being a minor; [,] 07 or 08 (C) [THAT] funds are needed for the minor's support and 09 education and [THAT] protection is necessary or desirable to obtain or provide 10 funds; 11 (2) appointment of a conservator or other protective order may be 12 made in relation to the estate and affairs of a person if the court determines that 13 (A) the person is unable to manage the person's property and 14 affairs effectively for reasons such as mental illness, mental deficiency, 15 physical illness or disability, advanced age, chronic use of drugs, chronic 16 intoxication, fraud, confinement, detention by a foreign power, or 17 disappearance; and 18 (B) the person has property that [WHICH] will be wasted or 19 dissipated unless proper management is provided, or that funds are needed for 20 the support, care, and welfare of the person or those entitled to be supported by 21 the person and [THAT] protection is necessary or desirable to obtain or 22 provide funds. 23 * Sec. 7. AS 13.26.180(a) is amended to read: 24 (a) The person to be protected, a person's attorney or other legal 25 representative, any person who is interested in the estate, affairs, or welfare of the 26 person to be protected, including a parent, guardian, [OR] custodian, or caregiver, the 27 Department of Health and Social Services, or any person who would be adversely 28 affected by lack of effective management of the property and affairs of the person to 29 be protected, may petition for the appointment of a conservator or for other 30 appropriate protective order. 31 * Sec. 8. AS 13.26.180 is amended by adding a new subsection to read:
01 (c) The petition may include a request for temporary conservatorship as 02 provided in AS 13.26.206 if it appears that the respondent's property is likely to be 03 wasted or dissipated during the pendency of the conservatorship proceeding. A request 04 for temporary conservatorship must specify the facts that cause the petitioner to 05 believe that a temporary conservatorship is necessary. 06 * Sec. 9. AS 13.26.185 is amended by adding a subsection to read: 07 (c) This section does not apply to a petition or order for an ex parte protective 08 order filed under AS 13.26.207 or a temporary protective order filed under 09 AS 13.26.208. 10 * Sec. 10. AS 13.26 is amended by adding new sections to read: 11 Sec. 13.26.206. Temporary conservators. (a) If, during the pendency of an 12 initial petition for conservatorship, it appears that the respondent is in need of a 13 protective order to protect the respondent against waste or dissipation of funds or 14 property, or to obtain funds that are needed for the immediate support, care, and 15 welfare of the respondent or persons entitled to be supported by the respondent, and 16 the respondent is not capable of protecting the respondent's funds or property or 17 obtaining the funds that are needed to support the respondent or persons whom the 18 respondent is required to support, the petitioner may request the appointment of a 19 temporary conservator to authorize the protection or to obtain the necessary funds. The 20 request must state the reasons and factual basis for the request. The petitioner shall 21 immediately file the request with the court and serve copies on the respondent and the 22 respondent's attorney and other persons as ordered by the court. The court shall 23 appoint an attorney for a respondent who is unrepresented to be at the hearing and 24 conduct a hearing within 72 hours after the filing. 25 (b) If the court determines that a temporary conservator should be appointed, 26 it shall make the appointment and grant to the temporary conservator only the 27 authority that is least restrictive upon the liberty of the respondent and that enables the 28 temporary conservator to provide the protection or authority necessary to protect the 29 respondent from waste or dissipation of funds or property or to obtain the funds 30 necessary for support. 31 (c) The temporary conservatorship expires at the time of the appointment of a
01 full or partial conservator or on the dismissal of the petition for conservatorship. 02 Sec. 13.26.207. Ex parte protective orders. (a) A person who is allowed to 03 file a petition for a protective order under AS 13.26.180(a) may file a petition for an 04 ex parte protective order against a person other than the protected person. A petition 05 filed on behalf of a protected person by a person other than the protected person must 06 be accompanied by proof of service of the petition on the protected person or the 07 person's attorney unless service would cause an immediate threat of harm to the best 08 interests of the protected person and the petition includes a written explanation of the 09 harm. If the court finds that the petition establishes probable cause that the respondent 10 is financially defrauding the petitioner or a person for whose benefit the petitioner 11 filed the petition and that, because of the fraud, there has been or is an immediate 12 threat of a waste or dissipation of the proposed protected person's funds or other 13 property, the court shall ex parte and without notice to the respondent issue a 14 protective order. The petitioner shall certify to the court in writing any effort that the 15 petitioner made to provide notice to the respondent. 16 (b) An ex parte protective order under this section may 17 (1) grant any protection described in AS 13.26.200; 18 (2) supersede an existing power of attorney; 19 (3) prohibit the respondent from having any direct or indirect contact 20 with the petitioner or other person for whose benefit the petitioner filed the petition; 21 and 22 (4) prohibit the respondent from taking any act with respect to the 23 funds or other property of the petitioner or other person for whose benefit the 24 petitioner filed the petition. 25 (c) An ex parte protective order expires 20 days after it is issued, unless 26 dissolved earlier by the court at the request of the petitioner or respondent and after 27 notice and, if requested, a hearing, or on the earlier appointment of a temporary or 28 permanent conservator. 29 Sec. 13.26.208. Temporary protective orders; conversions. On application 30 filed with the court before the expiration of a 20-day ex parte protective order issued 31 under AS 13.26.207, the court shall schedule a hearing on whether to convert the
01 protective order to a temporary order effective for up to six months. The court shall 02 provide to the protected person and the respondent at least 10 days' notice of the 03 hearing and the respondent's right to appear and be heard. If the court finds by a 04 preponderance of the evidence that the respondent has committed fraud against the 05 petitioner or the person for whose benefit the petition was filed, regardless of whether 06 the respondent appears at the hearing, the court may convert the ex parte protective 07 order to a temporary protective order effective for up to six months. 08 Sec. 13.26.209. Protective orders; modification; third-party compliance; 09 forms; fees. (a) The petitioner, respondent, or protected person, if the protected person 10 is a vulnerable adult, may request modification of a protective order issued under 11 AS 13.26.207 - 13.26.209. Except as provided in (b) of this section, if a request is 12 made for modification of 13 (1) an ex parte protective order issued under AS 13.26.207, the court 14 shall schedule a hearing on three days' notice or on shorter notice as the court may 15 prescribe; or 16 (2) a temporary protective order, after notice and hearing under 17 AS 13.26.208, the court shall schedule a hearing within 20 days after the date the 18 request is made, except that, if the court finds that the request is meritless on its face, 19 the court may deny the request without a hearing. 20 (b) If a request for a modification is made under this section and the 21 respondent raises an issue not raised by the petitioner, the court may allow the 22 petitioner additional time to respond. 23 (c) If the court modifies a protective order, the court shall issue a modified 24 order and shall make reasonable efforts to ensure that the order is understood by the 25 petitioner, the respondent, and the protected person who are present at the hearing. 26 (d) The court shall cause a copy of a protective order, any related orders, and a 27 scheduling order, if any, to be served on the respondent and the protected person and 28 have a protective order and any related order delivered to the appropriate local law 29 enforcement agency for expedited entry in the central registry under AS 18.65.540. 30 (e) A protective order issued under AS 13.26.207 - 13.26.209 is in addition to 31 any other civil or criminal remedy.
01 (f) A third party that has received actual or legal notice of a protective order 02 issued under AS 13.26.207 - 13.26.209 shall comply with the order. A third party who 03 does not comply with a protective order granted under AS 13.26.207 - 13.26.209 may 04 be liable in a civil action to the protected person or the protected person's heirs, 05 assigns, or estate for a civil penalty not to exceed $1,000, plus the actual damages, 06 costs, and fees associated with the failure to comply with the protective order. A third 07 party who does not comply with a protective order granted under AS 13.26.207 - 08 13.26.209 may also be criminally liable under AS 11.56.740 for violating a protective 09 order. As used in this section, "actual or legal notice" means delivery by mail or 10 facsimile at the most recently known place of residence or business of the third party. 11 (g) The Alaska Court System, after consulting with the Department of Health 12 and Social Services, the office of public advocacy, the office of elder fraud and 13 assistance, the long term care ombudsman, and other interested persons and 14 organizations, shall prepare forms for petitions and protective orders and instructions 15 for use of the forms by a person seeking a protective order under AS 13.26.207 - 16 13.26.209. The forms must conform to the Alaska Rules of Probate Procedure and 17 Alaska Rules of Civil Procedure, except that information on the forms may be filled in 18 by legible handwriting. The office of the clerk of each superior and district court shall 19 make available to the public the forms a person seeking a protective order may need 20 and instructions for the use of the forms. The clerk shall provide assistance in 21 completing and filing the forms. 22 (h) Filing fees may not be charged for a petition under AS 13.26.207, for an 23 application under AS 13.26.208, or for a request for modification of a protective order 24 under AS 13.26.209(a). 25 * Sec. 11. AS 13.26 is amended by adding a new section to article 4 to read: 26 Sec. 13.26.324. Definitions. In AS 13.26.165 - 13.26.324, unless the context 27 requires otherwise, "fraud" means 28 (1) robbery, extortion, and coercion under AS 11.41.500 - 11.41.530; 29 (2) offenses against property under AS 11.46.100 - 11.46.740; or 30 (3) exploitation of another person or another person's resources for 31 personal profit or advantage if no significant benefit accrues to the person who is
01 exploited. 02 * Sec. 12. AS 18.65.530(a) is amended to read: 03 (a) Except as provided in (b) or (c) of this section, a peace officer, with or 04 without a warrant, shall arrest a person if the officer has probable cause to believe the 05 person has, either in or outside the presence of the officer, within the previous 12 06 hours, 07 (1) committed domestic violence, except an offense under 08 AS 11.41.100 - 11.41.130, whether the crime is a felony or a misdemeanor; 09 (2) committed the crime of violating a protective order in violation of 10 AS 11.56.740(a)(1) or (2) [AS 11.56.740]; 11 (3) violated a condition of release imposed under AS 12.30.016(e) or 12 (f) or 12.30.027. 13 * Sec. 13. AS 18.65.540(a) is amended to read: 14 (a) The Department of Public Safety shall maintain a central registry of 15 protective orders issued by or filed with a court of this state under AS 13.26.207 - 16 13.26.209, AS 18.65.850 - 18.65.870, or AS 18.66.100 - 18.66.180. The registry must 17 include, for each protective order, the names of the petitioner and respondent, their 18 dates of birth, and the conditions and duration of the order. The registry shall retain a 19 record of the protective order after it has expired. 20 * Sec. 14. AS 18.65.540(b) is amended to read: 21 (b) A peace officer receiving a protective order from a court under 22 AS 13.26.207, 13.26.208, AS 18.65.850 - 18.65.855, or AS 18.66.100 - 18.66.180, a 23 modified order issued under AS 13.26.209, AS 18.65.860, or AS 18.66.120, or an 24 order dismissing a protective order shall [, MUST] take reasonable steps to ensure that 25 the order, modified order, or dismissal is entered into the central registry within 24 26 hours after being received. 27 * Sec. 15. AS 44.21.415(g) is amended to read: 28 (g) In this section, 29 (1) "fraud" means 30 (A) robbery, extortion, and coercion under AS 11.41.500 - 31 11.41.530;
01 (B) [THEFT AND RELATED] offenses against property 02 under AS 11.46.100 - 11.46.740; or 03 (C) exploitation of another person or another person's resources 04 for personal profit or advantage with no significant benefit accruing to the 05 person who is exploited; 06 (2) "older Alaskan" means a person residing in the state who is 60 07 years of age or older. 08 * Sec. 16. AS 47.24.010(a) is amended to read: 09 (a) Except as provided in (e) and (f) of this section, the following persons 10 who, in the performance of their professional duties, have reasonable cause to believe 11 that a vulnerable adult suffers from undue influence, abandonment, exploitation, 12 abuse, neglect, or self-neglect shall, not later than 24 hours after first having cause for 13 the belief, report the belief to the department's central information and referral service 14 for vulnerable adults in the office of the department that handles adult protective 15 services: 16 (1) a physician or other licensed health care provider; 17 (2) a mental health professional as defined in AS 47.30.915(11) and 18 including a marital and family therapist licensed under AS 08.63; 19 (3) a pharmacist; 20 (4) an administrator or employee of a nursing home, residential care, 21 or health care facility; 22 (5) a guardian or conservator; 23 (6) a police officer; 24 (7) a village public safety officer; 25 (8) a village health aide; 26 (9) a social worker; 27 (10) a member of the clergy; 28 (11) a staff employee of a project funded by the Department of 29 Administration for the provision of services to older Alaskans, the Department of 30 Health and Social Services, or the Council on Domestic Violence and Sexual Assault; 31 (12) an employee of a personal care or home health aide program;
01 (13) an emergency medical technician or a mobile intensive care 02 paramedic; 03 (14) a caregiver of the vulnerable adult; 04 (15) a certified nurse aide; 05 (16) an educator or administrative staff member of a public or 06 private educational institution. 07 * Sec. 17. AS 47.24.010(b) is amended to read: 08 (b) A report made under this section may include the name and address of the 09 reporting person and must include 10 (1) the name and contact information [ADDRESS] of the vulnerable 11 adult; 12 (2) information relating to the nature and extent of the undue 13 influence, abandonment, exploitation, abuse, neglect, or self-neglect; 14 (3) other information that the reporting person believes might be 15 helpful in an investigation of the case or in providing protection for the vulnerable 16 adult. 17 * Sec. 18. AS 47.24.010(c) is amended to read: 18 (c) The department or its designees shall report to the Department of Law any 19 person required by (a) of this section to report who fails to comply with this section. A 20 person listed in (a) of this section who, because of the circumstances, should have had 21 reasonable cause to believe that a vulnerable adult suffers from undue influence, 22 abandonment, exploitation, abuse, neglect, or self-neglect but who knowingly fails to 23 comply with this section is guilty of a class B misdemeanor. If a person convicted 24 under this section is a member of a profession or occupation that is licensed, certified, 25 or regulated by the state, the court shall notify the appropriate licensing, certifying, or 26 regulating entity of the conviction. 27 * Sec. 19. AS 47.24.010(d) is amended to read: 28 (d) This section does not prohibit a person listed in (a) of this section, or any 29 other person, from reporting cases of undue influence, abandonment, exploitation, 30 abuse, neglect, or self-neglect of a vulnerable adult that have come to the person's 31 attention in the person's nonoccupational capacity. This section does not prohibit
01 any other person from reporting a harm under this section. 02 * Sec. 20. AS 47.24.010(e) is amended to read: 03 (e) If a person making a report under this section believes that immediate 04 action is necessary to protect the vulnerable adult from imminent risk of serious 05 physical harm due to undue influence, abandonment, exploitation, abuse, neglect, or 06 self-neglect and the reporting person cannot immediately contact the department's 07 central information and referral service for vulnerable adults, the reporting person 08 shall [MAY] make the report to a police officer or a village public safety officer. The 09 police officer or village public safety officer shall take immediate action to protect the 10 vulnerable adult and shall, within 24 hours after receiving the report of harm [AT 11 THE EARLIEST OPPORTUNITY], notify the department. A person may not bring an 12 action for damages against a police officer, a village public safety officer, the state, or 13 a political subdivision of the state based on a decision under this subsection to take or 14 not to take immediate action to protect a vulnerable adult. If a decision is made under 15 this subsection to take immediate action to protect a vulnerable adult, a person may 16 not bring an action for damages based on the protective actions taken unless the 17 protective actions were performed with gross negligence or intentional misconduct; 18 damages awarded in the action may include only direct economic compensatory 19 damages for personal injury. 20 * Sec. 21. AS 47.24.010(f) is amended to read: 21 (f) A person listed in (a) of this section who reports to the long term care 22 ombudsman under AS 47.62.015, or to the Department of Health and Social Services, 23 that a vulnerable adult has been unduly influenced, abandoned, exploited, abused, or 24 neglected in an out-of-home care facility is considered to have met the duty to report 25 under (a) of this section. 26 * Sec. 22. AS 47.24.010 is amended by adding new subsections to read: 27 (i) A person required to report under this section who makes the report to the 28 person's job supervisor or to another individual working for the entity that employs the 29 person is not relieved of the obligation to make the report to the department as 30 required under (a) of this section. 31 (j) A person who recklessly makes a false report under this section is civilly
01 liable for actual damages suffered by the person who is the subject of the report. 02 * Sec. 23. AS 47.24.013(a) is amended to read: 03 (a) If a report received under AS 47.24.010 pertains to [REGARDS] the 04 undue influence, abandonment, exploitation, abuse, neglect, or self-neglect of a 05 vulnerable adult who is 60 years of age or older that is alleged to have been committed 06 by or to have resulted from the negligence of the staff or a volunteer of an out-of- 07 home care facility, including a facility licensed under AS 47.32, in which the 08 vulnerable adult resides, the department shall transfer the report for investigation to 09 the long term care ombudsman under AS 47.62.015. 10 * Sec. 24. AS 47.24.013(b) is amended to read: 11 (b) The department shall investigate a report received under AS 47.24.010 12 regarding the undue influence, abandonment, exploitation, abuse, neglect, or self- 13 neglect of a vulnerable adult who is less than 60 years of age that is alleged to have 14 been committed by or to have resulted from the negligence of the staff or a volunteer 15 of an out-of-home care facility in which the vulnerable adult resides. 16 * Sec. 25. AS 47.24.013(c) is amended to read: 17 (c) Upon receipt of a report under (a) or (b) of this section, the long term care 18 ombudsman and the department shall 19 (1) conduct an investigation as appropriate under AS 47.62.015 or this 20 title, respectively; 21 (2) coordinate and cooperate in their responses to and investigations of 22 the report if their jurisdictions overlap; 23 (3) provide the results of their actions or investigations to the central 24 information and referral service of the office of the department that handles adult 25 protective services within 60 days after the receipt of the report. 26 * Sec. 26. AS 47.24.013(d) is amended to read: 27 (d) If the long term care ombudsman receives directly a report regarding the 28 undue influence, abandonment, exploitation, abuse, neglect, or self-neglect of a 29 vulnerable adult in an out-of-home care facility, the ombudsman shall provide the 30 report, and the results of the ombudsman's actions or investigations regarding the 31 report, to the central information and referral service of the office of the department
01 that handles adult protective services. The department may investigate the report as 02 described in AS 47.24.015 if the department determines that action is appropriate. 03 * Sec. 27. AS 47.24.015(a) is amended to read: 04 (a) Upon the department's receipt of a report under AS 47.24.010 that is not 05 transferred under AS 47.24.013, the department, or its designee, shall promptly initiate 06 an investigation to determine whether the vulnerable adult who is the subject of the 07 report suffers from undue influence, abandonment, exploitation, abuse, neglect, or 08 self-neglect. The department, or its designee, shall conduct a face-to-face interview 09 with the subject of the report unless that person is unconscious or the department, or 10 its designee, has determined that a face-to-face interview could further endanger the 11 vulnerable adult. 12 * Sec. 28. AS 47.24.015(c) is amended to read: 13 (c) The department [,] or its designee [,] shall immediately terminate an 14 investigation under this section upon the request of the vulnerable adult who is the 15 subject of the report made under AS 47.24.010. However, the department or its 16 designee may not terminate the investigation if the investigation to that point has 17 resulted in probable cause to believe that the vulnerable adult is in need of protective 18 services and the request is made personally by the vulnerable adult and the vulnerable 19 adult is not competent to make the request on the adult's own behalf, or the request is 20 made by the vulnerable adult's guardian, attorney-in-fact, or surrogate decision maker 21 and that person is the alleged perpetrator of the undue influence, abandonment, 22 exploitation, abuse, or neglect of the vulnerable adult and is being investigated under 23 this chapter. If the department has probable cause to believe that the vulnerable adult 24 is in need of protective services, 25 (1) the department may petition the court as set out in AS 47.24.019; 26 (2) the department or its designee may refer the report made to the 27 department under AS 47.24.010 to a police officer for criminal investigation; or 28 (3) in cases involving fraud, the department or its designee may refer 29 the report made to the department under AS 47.24.010 to the office of public advocacy 30 for investigation; in this paragraph, "fraud" has the meaning given in AS 13.26.324 31 [AS 44.21.415].
01 * Sec. 29. AS 47.24.015 is amended by adding new subsections to read: 02 (h) In conducting an investigation under this section, the department may issue 03 subpoenas, conduct interviews, and examine any health care or financial records 04 related to a vulnerable adult. The department may seek a court order to enforce a 05 subpoena. 06 (i) A person may not interfere with the department in the performance of its 07 investigation under this section, including interfering with the department's access to 08 the vulnerable adult. 09 (j) Notwithstanding any other provision of law, the office of the department 10 that handles adult protective services shall have access to any information compiled or 11 retained by other divisions in the department, regardless of the nature of the 12 information or whether the information is considered confidential, to assist in 13 administering the provisions of this chapter. 14 (k) The department may audiotape or videotape an interview of a vulnerable 15 adult if the adult has the capacity to consent and gives that consent. The department 16 shall document the consent in its investigative file. The department may not audiotape 17 or videotape an interview of a vulnerable adult who lacks the capacity to consent. 18 (l) The department shall provide for the training of investigators who 19 investigate reports of harm under this section. Training must include instruction in 20 federal, state, and local laws and policies of the department related to vulnerable 21 adults, and in investigative techniques. The department may require other appropriate 22 training. 23 (m) In this section, "financial records" include financial records related to the 24 vulnerable adult that are maintained by any person. 25 * Sec. 30. AS 47.24.016(a) is amended to read: 26 (a) If the department determines under AS 47.24.015 that a vulnerable adult is 27 in need of protective services, but the department cannot obtain the vulnerable adult's 28 consent to receive the services because the vulnerable adult is unable to consent or 29 lacks decision making capacity, and has no guardian, conservator, [OR] attorney-in- 30 fact, trustee, or surrogate for health care decisions under AS 13.52.030 to serve as 31 the vulnerable adult's surrogate decision maker, the department may select from the
01 following list, in the order of priority listed, an individual who is willing to be the 02 vulnerable adult's surrogate decision maker for the purpose of deciding whether to 03 consent to the vulnerable adult's receipt of protective services: 04 (1) the vulnerable adult's spouse, unless 05 [(A) THE VULNERABLE ADULT AND THE SPOUSE 06 HAVE SEPARATE DOMICILES; OR 07 (B)] the vulnerable adult or the spouse have initiated divorce, 08 [OR] dissolution, or legal separation proceedings; 09 (2) an individual who lives with the vulnerable adult in a spousal 10 relationship or as a domestic partner and who is 18 years of age or older; 11 (3) a son or daughter of the vulnerable adult who is 18 years of age or 12 older; 13 (4) a parent of the vulnerable adult; 14 (5) a brother or sister of the vulnerable adult who is 18 years of age or 15 older; or 16 (6) a close friend or relative of the vulnerable adult who is 18 years of 17 age or older. 18 * Sec. 31. AS 47.24.016(b) is amended to read: 19 (b) An individual from the list in (a) of this section may not be selected as a 20 surrogate decision maker if 21 (1) the department determines that individual does not possess decision 22 making capacity; or 23 (2) there are allegations that individual is a perpetrator of the undue 24 influence, abandonment, exploitation, abuse, or neglect of the vulnerable adult. 25 * Sec. 32. AS 47.24.016(d) is amended to read: 26 (d) The department may not continue to provide protective services to a 27 vulnerable adult based on the consent of a surrogate decision maker serving under this 28 section or AS 13.52.030 if the department determines that the vulnerable adult has 29 become able to consent or has regained decision making capacity since the surrogate's 30 consent was given. The department may continue protective services to a vulnerable 31 adult who has become able to consent or has regained decision making capacity only
01 if the vulnerable adult consents. 02 * Sec. 33. AS 47.24.017(a) is amended to read: 03 (a) If the department determines under AS 47.24.015 that a vulnerable adult is 04 in need of protective services and [EITHER] the vulnerable adult, the vulnerable 05 adult's guardian, conservator, [OR] attorney-in-fact, trustee, [OR] a surrogate 06 decision maker selected under AS 47.24.016, or a surrogate for health care 07 decisions under AS 13.52.030 consents to receipt of the protective services, and to 08 the extent that resources are available, the department shall ensure that the protective 09 services for the vulnerable adult are provided by the department, or its designee, 10 within 10 working days after the department received the report under AS 47.24.010 11 regarding the undue influence, abandonment, exploitation, abuse, neglect, or self- 12 neglect of the vulnerable adult. However, if circumstances beyond the control of the 13 department or the department's designee make it impossible to provide the protective 14 services within the 10 working days, the department shall ensure that the services are 15 provided as soon as possible after that time. 16 * Sec. 34. AS 47.24.019(c) is amended to read: 17 (c) If a vulnerable adult who has consented to receive protective services, or 18 on whose behalf consent to receive protective services has been given, is prevented by 19 any person [A CAREGIVER, GUARDIAN, ATTORNEY-IN-FACT, OR 20 SURROGATE DECISION MAKER] from receiving those services, the department 21 may petition the superior court for an injunction restraining the person 22 [CAREGIVER, GUARDIAN, ATTORNEY-IN-FACT, OR SURROGATE 23 DECISION MAKER] from interfering with the provision of protective services to the 24 vulnerable adult. 25 * Sec. 35. AS 47.24.050 is amended to read: 26 Sec. 47.24.050. Confidentiality of reports. (a) Investigation reports and 27 reports of the undue influence, abandonment, exploitation, abuse, neglect, or self- 28 neglect of a vulnerable adult filed under this chapter are confidential and are not 29 subject to public inspection and copying under AS 40.25.110 - 40.25.125. However, 30 under [IN ACCORDANCE WITH] this chapter and regulations adopted under this 31 chapter, investigation reports may be used by appropriate agencies or individuals
01 inside and outside the state, in connection with investigations or judicial proceedings 02 involving the undue influence, abandonment, exploitation, abuse, neglect, or self- 03 neglect of a vulnerable adult. 04 (b) The department shall disclose a report of the undue influence, 05 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult if the 06 vulnerable adult who is the subject of the report or the vulnerable adult's guardian, 07 conservator, attorney-in-fact, trustee, or surrogate decision maker consents in 08 writing. The department may not disclose a report of the undue influence, 09 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult to the 10 vulnerable adult's guardian, conservator, attorney-in-fact, trustee, or surrogate 11 decision maker if that person is an alleged perpetrator of the undue influence, 12 abandonment, exploitation, abuse, or neglect of the vulnerable adult and is being 13 investigated under this chapter. The department shall, upon request, disclose the 14 number of verified reports of undue influence, abandonment, exploitation, abuse, 15 neglect, or self-neglect of a vulnerable adult that occurred at an institution that 16 provides care for vulnerable adults or that were the result of actions or inactions of a 17 public home care provider. 18 * Sec. 36. AS 47.24.130 is amended to read: 19 Sec. 47.24.130. Treatment through spiritual means. This chapter may not be 20 construed to mean that a person is unduly influenced, abused, neglected, self- 21 neglected, vulnerable, unable to consent, abandoned, exploited, or in need of 22 emergency or protective services for the sole reason that the person relies on or is 23 being furnished treatment by spiritual means through prayer alone under [IN 24 ACCORDANCE WITH] the tenets and practices of a church or religious 25 denomination of which the person is a member or adherent, if [PROVIDED THAT] 26 the person consents to the treatment through spiritual means only and the treatment is 27 administered by an accredited practitioner of the church or religious denomination. In 28 this section, "church or religious denomination" has the meaning given to "religious 29 organization" in AS 05.15.690. 30 * Sec. 37. AS 47.24.900(2) is amended to read: 31 (2) "abuse" means
01 (A) the [WILFUL,] intentional, knowing, or reckless 02 nonaccidental [,] and nontherapeutic infliction of physical pain, injury, [OR] 03 mental or emotional distress, or fear, including coercion and intimidation; 04 or 05 (B) sexual assault under AS 11.41.410 or 11.41.420; 06 * Sec. 38. AS 47.24.900(3) is amended to read: 07 (3) "caregiver" means 08 (A) a person who is providing care to a vulnerable adult as a 09 result of a family relationship, or who has assumed some or all responsibility 10 for the care of a vulnerable adult voluntarily, by contract, as an employee of a 11 business that provides care in an adult's home, or by court order; or 12 (B) an employee of an out-of-home care facility who provides 13 care to one or more vulnerable adults; 14 * Sec. 39. AS 47.24.900(4) is amended to read: 15 (4) "decision making capacity" means the ability to understand and 16 appreciate the nature and consequences of a decision and the ability to reach and 17 communicate an informed decision; in this paragraph, "informed decision" 18 includes a decision made by the vulnerable adult that is free from undue 19 influence; 20 * Sec. 40. AS 47.24.900(7) is amended to read: 21 (7) "exploitation" 22 (A) means unjust or improper use of another person or another 23 person's resources for one's own profit or advantage, with or without the 24 person's consent; and 25 (B) includes acts by a person who stands in a position of 26 trust or confidence with a vulnerable adult or who knows or should know 27 that the vulnerable adult lacks the capacity to consent that involve 28 obtaining profit or advantage through undue influence, deception, fraud, 29 intimidation, or breach of fiduciary duty; in this paragraph, "fraud" has 30 the meaning given in AS 13.26.324(1) and (2); 31 * Sec. 41. AS 47.24.900(9) is amended to read:
01 (9) "neglect" means the intentional, knowing, or reckless failure by a 02 caregiver to provide essential care or services or access to essential care or services 03 or to carry out a prescribed treatment plan necessary to maintain the physical and 04 mental health of the vulnerable adult when the vulnerable adult is unable to provide 05 or obtain the essential care or services or to carry out the prescribed treatment 06 plan on the vulnerable adult's own behalf; in this paragraph, "essential care or 07 services" includes food, clothing, shelter, medical care, and supervision; 08 * Sec. 42. AS 47.24.900(11) is amended to read: 09 (11) "protective services" means services that are intended to prevent 10 or alleviate harm resulting from undue influence, abandonment, exploitation, abuse, 11 neglect, or self-neglect and that are provided to a vulnerable adult in need of 12 protection; in this paragraph, "services" ["PROTECTIVE SERVICES"] includes 13 (A) protective placement; 14 (B) applying for or obtaining public benefits; 15 (C) obtaining health care services and supplies; 16 (D) staying financial transactions; 17 (E) petitioning for a protective order under AS 13.26.165 - 18 13.26.209; 19 (F) assisting with personal hygiene; 20 (G) obtaining food and clothing; 21 (H) protection from physical and emotional abuse; 22 (I) obtaining representative payee services; and 23 (J) coordinating protective services; 24 * Sec. 43. AS 47.24.900(15) is amended to read: 25 (15) "unable to consent" means refusal to, or inability to, accept 26 services because 27 (A) the person is an incapacitated person or apparently is an 28 incapacitated person; 29 (B) of coercion by or fear of reprisal from the perpetrator of 30 undue influence, abandonment, exploitation, abuse, or neglect; 31 (C) of dependency on the perpetrator of undue influence,
01 abandonment, exploitation, abuse, or neglect for services, care, or support; or 02 (D) of an inability to perceive that refusal to consent results in 03 an imminent and substantial danger of loss, waste, or dissipation of income 04 or assets, eviction, physical or mental harm to self or others, or death [OR 05 IRREPARABLE HARM TO SELF OR OTHERS]; 06 * Sec. 44. AS 47.24.900(16) is amended to read: 07 (16) "vulnerable adult" means a person 18 years of age or older who, 08 because of incapacity, mental illness, mental deficiency, physical illness or 09 disability, advanced age, chronic use of drugs, chronic intoxication, fraud, 10 confinement, or disappearance [PHYSICAL OR MENTAL IMPAIRMENT], is 11 unable to meet the person's own needs or to seek help without assistance. 12 * Sec. 45. AS 47.24.900 is amended by adding new paragraphs to read: 13 (17) "deception" means creating, reinforcing, or failing to correct a 14 false impression or preventing another person from acquiring information that would 15 affect the person's judgment regarding a transaction; 16 (18) "fiduciary duty" means the duty of a third party who stands in a 17 position of trust or confidence with another person, including a vulnerable adult, to act 18 with due regard for the benefit and interest of that person; 19 (19) "financial institution" means an institution subject to state or 20 federal banking or financial regulations, including 21 (A) a broker-dealer; 22 (B) a commercial bank; 23 (C) a savings bank; 24 (D) a credit union; 25 (E) a premium finance company; 26 (F) a small loan company; 27 (G) a bank holding company; 28 (H) a financial holding company; 29 (I) a trust company; 30 (J) a savings and loan association; 31 (K) a deferred deposit advance licensee;
01 (L) an investment bank; 02 (M) an insurance company subject to regulation by AS 21; 03 (N) a licensee subject to regulation by AS 21; and 04 (O) an investment adviser; 05 (20) "person who stands in a position of trust or confidence" means a 06 person who 07 (A) is a relative by blood or marriage; 08 (B) is a joint tenant or tenant in common; 09 (C) has a legal or fiduciary relationship; or 10 (D) is a person who has been entrusted with or has assumed 11 responsibility for the use or management of the vulnerable adult's assets or 12 income; 13 (21) "undue influence" means the use by a person who stands in a 14 position of trust or confidence of the person's role, relationship, or authority to 15 wrongfully exploit the trust, dependency, or fear of a vulnerable adult to gain control 16 over the decision making of the vulnerable adult, including decision making related to 17 finances, property, residence, and health care. 18 * Sec. 46. The uncodified law of the State of Alaska is amended by adding a new section to 19 read: 20 DIRECT COURT RULE AMENDMENT. Rule 12(h), Alaska Rules of 21 Criminal Procedure, is amended to read: 22 (h) Continuance of Trial. A motion for continuance of a trial date will be 23 granted by the court only for cause shown. In deciding whether to grant the motion, 24 the court shall consider the victim's circumstances and the effect the delay would 25 have on the victim, particularly a victim of advanced age or extreme youth. The 26 court shall place its findings on the record. The presiding judge of a judicial district 27 may require that a visiting or pro tem judge obtain approval from the presiding judge 28 before granting any continuance of trial. 29 * Sec. 47. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 DIRECT COURT RULE AMENDMENT. Rule 45(a), Alaska Rules of
01 Criminal Procedure, is amended to read: 02 (a) Priorities in Scheduling Criminal Cases. The court shall provide for 03 placing criminal proceedings upon appropriate calendars. Preference shall be given to 04 criminal proceedings and the trial of defendants in custody shall be given preference 05 over other criminal cases. The court shall consider the circumstances of the victim, 06 particularly a victim of advanced age or extreme youth, in setting the trial date. 07 Trial dates in criminal cases in the superior court shall be set at the time of 08 arraignment, and if a trial date is thereafter vacated, the trial shall be immediately set 09 for a date certain. 10 * Sec. 48. The uncodified law of the State of Alaska is amended by adding a new section to 11 read: 12 INDIRECT COURT RULE AMENDMENTS. (a) AS 13.26.207, 13.26.208, and 13 13.26.209(a) - (g), enacted by sec. 10 of this Act, have the effect of amending Rule 17, Alaska 14 Rules of Probate Procedure, relating to conservatorships and protective proceedings, by 15 allowing ex parte and temporary orders and modifications of orders to be issued related to 16 protecting the assets of a person otherwise subject to AS 13.26.165 from financial 17 exploitation. 18 (b) AS 13.26.209(h), enacted by sec. 10 of this Act, has the effect of amending Rule 19 9, Alaska Rules of Administration, by requiring that filing fees may not be charged for a 20 petition for an ex parte protective order under AS 13.26.207 for an application for a temporary 21 order under AS 13.26.208, or for modification of a protective order under AS 13.26.209(a), 22 enacted by sec. 10 of this Act. 23 (c) AS 13.26.206, enacted by sec. 10 of this Act, has the effect of amending Rule 77, 24 Alaska Rules of Civil Procedure, by requiring a hearing within 72 hours of the filing of a 25 petition for the appointment of a temporary conservator. 26 (d) AS 13.26.208, enacted by sec. 10 of this Act, has the effect of amending Rule 77, 27 Alaska Rules of Civil Procedure, by providing for a hearing on an application for a temporary 28 protective order on 10 days' notice. 29 (e) AS 13.26.209(a) and (b), enacted by sec. 10 of this Act, have the effect of 30 amending Rule 77, Alaska Rules of Civil Procedure, by providing for a hearing on a request 31 for modification of a protective order on 20 days' notice and for modification of an ex parte
01 protective order on three days' notice. 02 * Sec. 49. The uncodified law of the State of Alaska is amended by adding a new section to 03 read: 04 APPLICABILITY. Sections 3 - 5, 46, and 47 of this Act apply to offenses committed 05 on or after the effective date of secs. 3 - 5 of this Act. 06 * Sec. 50. The uncodified law of the State of Alaska is amended by adding a new section to 07 read: 08 REVISOR'S INSTRUCTIONS. The revisor of statutes is instructed to change the 09 catch line of 10 (1) AS 47.24.010 from "Reports of harm" to "Persons required to report; 11 reports of harm"; 12 (2) AS 47.24.013 from "Reports of abandonment, exploitation, abuse, neglect, 13 or self-neglect of vulnerable adults in out-of-home care facilities" to "Reports of undue 14 influence, abandonment, exploitation, abuse, neglect, or self-neglect of vulnerable adults in 15 out-of-home care facilities." 16 * Sec. 51. The uncodified law of the State of Alaska is amended by adding a new section to 17 read: 18 CONDITIONAL EFFECT. (a) AS 13.26.207 and 13.26.209(a) - (g), enacted by sec. 19 10 of this Act, take effect only if sec. 48(a) of this Act receives the two-thirds vote of each 20 house required by art. IV, sec. 15, Constitution of the State of Alaska. 21 (b) AS 13.26.209(h), enacted by sec. 10 of this Act, takes effect only if sec. 48(b) of 22 this Act receives the two-thirds vote of each house required by art. IV, sec. 15, Constitution of 23 the State of Alaska. 24 (c) AS 13.26.206, enacted by sec. 10 of this Act, takes effect only if sec. 48(c) of this 25 Act receives the two-thirds vote of each house required by art. IV, sec. 15, Constitution of the 26 State of Alaska. 27 (d) AS 13.26.208, enacted by sec. 10 of this Act, takes effect only if sec. 48(a) and (d) 28 of this Act receive the two-thirds vote of each house required by art. IV, sec. 15, Constitution 29 of the State of Alaska. 30 (e) AS 13.26.209(a) and (b), enacted by sec. 10 of this Act, take effect only if sec. 31 48(e) of this Act receive the two-thirds vote of each house required by art. IV, sec. 15,
01 Constitution of the State of Alaska. 02 * Sec. 52. Sections 16 and 20 of this Act take effect September 1, 2012. 03 * Sec. 53. Except as provided in sec. 52 of this Act, this Act takes effect July 1, 2012.