HB 139: "An Act relating to guardians, guardianships, successor guardians, incapacitated guardians, incapacitated individuals, and testamentary appointments of guardians; and relating to withholding or withdrawing life-sustaining procedures."
00 HOUSE BILL NO. 139 01 "An Act relating to guardians, guardianships, successor guardians, incapacitated 02 guardians, incapacitated individuals, and testamentary appointments of guardians; and 03 relating to withholding or withdrawing life-sustaining procedures." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 13.26.211 is amended by adding a new subsection to read: 06 (f) The guardian of an incapacitated person may by will appoint a person to 07 act as the guardian for the incapacitated person after the guardian dies. A testamentary 08 appointment by the guardian becomes effective when the appointed person has given 09 notice under AS 13.26.296 and files an acceptance of the appointment in the court in 10 which the will is informally or formally probated. 11 * Sec. 2. AS 13.26.281(a) is amended to read: 12 (a) Subject to (c) of this section, the [THE] authority and responsibility of a 13 guardian for an incapacitated person terminates upon the death of the guardian or 14 ward, the determination of incapacity of the guardian, the removal or resignation of
01 the guardian as provided in AS 13.26.286, or upon the expiration of the period 02 specified by court order as the duration of the guardianship. Testamentary 03 appointment under an informally probated will terminates if the will is later denied 04 probate in a formal proceeding. Termination does not affect a guardian's liability for 05 prior acts nor an obligation to account for assets of the ward over which the guardian 06 exercised control. 07 * Sec. 3. AS 13.26.281 is amended by adding a new subsection to read: 08 (c) The guardian of an incapacitated person, while having capacity, may name 09 a person to be the successor guardian for the incapacitated person if the guardian 10 becomes incapacitated. Notwithstanding AS 13.26.311, the person named by the 11 guardian has priority to be the successor guardian of the incapacitated person. The 12 appointment of the person named as the successor guardian under this subsection 13 becomes effective when the guardian becomes incapacitated and the named person has 14 given notice under AS 13.26.296 and accepted the appointment. 15 * Sec. 4. AS 13.26.316(c) is amended to read: 16 (c) A full guardian of an incapacitated person has the same powers and duties 17 respecting the ward that a parent has respecting an unemancipated minor child except 18 that the guardian is not liable for the care and maintenance of the ward and is not 19 liable, solely by reason of the guardianship, to a person who is harmed by acts of the 20 ward. Except as modified by order of the court, a full guardian's powers and duties 21 include, but are not limited to, the following: 22 (1) the guardian is entitled to custody of the person of the ward and 23 shall ensure [ASSURE] that the ward has a place of abode in the least restrictive 24 setting consistent with the essential requirements for the ward's physical health and 25 safety; 26 (2) the guardian shall ensure [ASSURE] the care, comfort, and 27 maintenance of the ward; 28 (3) the guardian shall ensure [ASSURE] that the ward receives the 29 services necessary to meet the essential requirements for the ward's physical health 30 and safety and to develop or regain, to the maximum extent possible, the capacity to 31 meet the ward's needs for physical health and safety;
01 (4) the guardian shall ensure [ASSURE] through the initiation of court 02 action and other means that the ward enjoys all personal, civil, and human rights to 03 which the ward is entitled; 04 (5) the guardian may give consents or approvals necessary to enable 05 the ward to receive medical or other professional care, counsel, treatment, or services 06 except as otherwise limited by (e) of this section; 07 (6) the guardian has the powers and duties of a conservator under this 08 chapter; however, the guardian may not apply the ward's money or property for the 09 services as guardian or for room and board that the guardian or the guardian's spouse, 10 parent, or child has furnished the ward unless, before payment, the court finds that the 11 ward is financially able to pay and that the charge is reasonable; notice of a request for 12 payment approval shall be provided to at least one relative of the ward if possible; the 13 guardian shall exercise care to conserve any excess money or property for the ward's 14 needs; 15 (7) if a conservator of the estate of the ward has also been appointed, 16 the guardian shall pay all of the ward's estate received by the guardian to the 17 conservator for management as provided in AS 13.26.401 - 13.26.575; 18 (8) the guardian may determine under AS 13.52.045 that life- 19 sustaining procedures may be withheld or withdrawn from the ward if in the best 20 interest of the ward. 21 * Sec. 5. AS 13.52.045 is amended to read: 22 Sec. 13.52.045. Withholding or withdrawing [OF] life-sustaining 23 procedures. Notwithstanding any other provision of this chapter, an agent, a 24 guardian of an incapacitated person under AS 13.26, or a surrogate may determine 25 that life-sustaining procedures may be withheld or withdrawn from a patient with a 26 qualifying condition when there is 27 (1) a durable power of attorney for health care or other writing that 28 clearly expresses the patient's intent that the procedures be withheld or withdrawn; or 29 (2) no durable power of attorney for health care or other writing that 30 clearly expresses the patient's intent to the contrary, the patient has a qualifying 31 condition as determined under AS 13.52.160, and withholding or withdrawing the
01 procedures would be consistent with the patient's best interest.