Legislature(2011 - 2012)SENATE FINANCE 532
01/18/2012 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB104 | |
| SB86 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 104 | TELECONFERENCED | |
| + | SB 86 | TELECONFERENCED | |
| + | SB 2 | TELECONFERENCED | |
| + | SB 16 | TELECONFERENCED | |
| + | TELECONFERENCED |
SENATE BILL NO. 86
"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; amending Rule 12(h),
Alaska Rules of Criminal Procedure; amending Rule 45(a),
Alaska Rules of Criminal Procedure; amending Rule 65,
Alaska Rules of Civil Procedure; amending Rule 17, Alaska
Rules of Probate Procedure; amending Rule 9, Alaska Rules
of Administration; and providing for an effective date."
9:54:35 AM
KIMBERLI POPPE-SMART, DEPUTY COMMISSIONER, MEDICAID AND
HEALTHCARE POLICY, DEPARTMENT OF HEALTH AND SOCIAL SERVICES,
testified in support and introduced the bill and stated that the
legislation was a collaborative, cross-agency effort.
9:57:38 AM
JOANNE GIBBENS, DEPUTY DIRECTOR, SENIOR DISABILITY SERVICES,
DEPARTMENT OF HEALTH AND SOCIAL SERVICES, testified in support
of SB 86 and highlighted important elements of the legislation,
which covered existing gaps in the services provided to
vulnerable adults. She stated that the most important element of
the bill created a process for appointing a temporary
conservator to someone at risk of eminent harm to their
financial status or healthcare decision making. The legislation
allowed the court to impose emergency conservatorships which
could be removed or renewed as needed. She furthered that the
bill assisted in protecting financial assets, managing financial
affairs, and preventing eminent waste or fraudulent dissipation
of assets. She declared that the second most important element
of the bill created a process for the imposition of financial
protective orders. The legislation imparted the ability to apply
for a 20-day ex parte protective order that gave courts the
tools to stop or prevent financial exploitation. She noted that
these tools were not currently available to Adult Protective
Services or others who assist with vulnerable adults. She added
that another notable element of the legislation was that it
mandated that anyone working at a healthcare or educational
facility must report suspected abuse of vulnerable adults. She
expounded that currently, only administrators were mandated
reporters. Under SB 86, the mandate would be expanded to apply
to educational facilities. The legislation also defined "undue
influence" as a reportable harm. Undue influence meant that a
person of trust was abusing or misusing their power and applying
undue influence to a vulnerable adult in order to gain control
over their healthcare decision making, assets, or finances. She
felt that the addition of undue influence and mandated reporters
would give the state earlier detection and intervention for
individuals who were vulnerable to loss of their property or
decision making. The bill enabled earlier protective orders,
facilitated more thorough and successful investigations,
provided protection of assets during an investigation, and
enhanced criminal penalties when the victim was elderly. She
concluded that in broad summary, the bill would provide Alaska
the additional tools necessary to combat the growing problem of
financial abuse among elderly and disabled populations.
10:01:16 AM
Ms. Gibbens explained the financial exploitation issues among
vulnerable adults. She indicated that Adult Protective Services
had experienced a slow increase in the number of calls regarding
the financial exploitation of vulnerable adults. She stated that
the majority of the calls were regarding adults over 60-years-
old, but some calls were concerning developmentally disabled or
traumatic brain injury victims. She remarked that in FY 10
Senior & Disability Services (SDS) substantiated 100 cases of
financial exploitation; that number rose to 125 in FY 11 and
during the current fiscal year, SDS had already substantiated 85
cases. She indicated there was a trend developing in the rising
number of cases of financial exploitation and that most
instances of exploitation involved family members taking
advantage of other family members. In many abuse cases, the
offender had Power of Attorney (POA) over the victim. She
discussed the ways inner-family financial abuse occurs. She
continued that under SB 86, the undue influence statute, the
ability to impose financial protective orders, and the ability
appoint temporary conservators enabled the state to respond
faster and more effectively to abuse. She related the reasons
that caused people to give up their POA and explained the
dynamics between the offender and the victim.
10:06:57 AM
Co-Chair Hoffman wondered if any of the 210 cases the prior year
and a half had involved the identity theft of vulnerable adults.
Ms. Barrans indicated that she did not have the exact numbers
with her, but confirmed that there were cases involving identity
theft. She agreed to provide the exact numbers at a later date.
Co-Chair Hoffman inquired how the legislation addressed identify
theft. Ms. Barrans deferred the question to one of the
attorneys, but added that she did not believe that SB 86
mentioned identity theft specifically.
Senator Egan observed that when vulnerable adults relinquished
their POA, they may not have had the reasoning capacity
necessary to recognize that someone was taking advantage of
them. He wondered how cases where the victim was unaware of
being taken advantage of were dealt with. Ms. Gibbens explained
that there was a process through which an evaluation was done to
determine the victim's cognitive ability and added that when the
victim was unaware of being abused, a phone call was needed for
SDS to act
Senator Egan asked if SB 86 required employees of an assisted
living facility to report the abuse of seniors. Ms. Gibbens
responded that under the bill, employees of an assisted living
facility were mandated to report any possible abuse.
10:09:58 AM
Senator Thomas noted that SB 86 required temporary conservators
to fill out an annual reporting form that detailed how funds
were spent. He furthered that the annual reporting increased
accountability and he thought it made fraud unlikely. He
wondered what documents a conservator signed regarding their
responsibilities and if abuse was substantiated, what penalties
were enforced. Ms. Gibbens replied that she was not familiar
with the conservatorship process, but indicated that Kelly
Henriksen was present to discuss the specifics of the bill.
10:11:24 AM
Co-Chair Stedman addressed the updated fiscal notes attached to
SB 86. He introduced a zero fiscal note from the Department of
Health and Social Services (DHSS), a zero fiscal note the
Department of Administration (DOA), a zero fiscal note from the
Department of Law (DOL), a zero fiscal note from the Department
of Public Safety (DPS), Alaska State Troopers Detachment, a zero
fiscal note from the Department of Corrections (DOC), and a zero
fiscal note from the Alaska Court System (COURT). He discussed a
fiscal impact note from DPS, Statewide Support, in the amount of
$48,000 in General Funds for the purposes of developing new
protective order forms, updating the Alaska Public Safety
Information Network (APSIN), and training.
10:13:37 AM
AT EASE
10:16:23 AM
RECONVENED
10:19:20 AM
Co-Chair Hoffman noted that there were no provisions in SB 86
that dealt with how the state interfaced with tribal courts
regarding the protection of vulnerable adults. He wondered how
Ms. Russo saw the relationship between the two courts and
queried if she believed, as he did, that it needed to be
specifically addressed in the legislation. Ms. Russo responded
that it was her experience that tribal courts had not actively
taken a role in conservatorship proceedings. She furthered that
the reason it was not included in the bill was because the
tribal courts had not participated in the past. Co-Chair Hoffman
stressed that the relationship between Alaska and tribal courts
should be spelled out before it became a problem.
Senator Thomas reiterated his prior question regarding the
accountability of conservators and expanded it to encompass
children in the foster care system. Ms. Russo replied that SB 86
did not specifically address the issue of children in the foster
care system. She related that not all fiduciaries were required
to report finances, but that only appointed guardians and
conservators were subject to reporting responsibilities. She
indicated that the gap in accountability was the reason SB 86
had addressed the POA issue. Appointed guardians and
conservators were required to undergo training, an hour of
education, and to sign a letter of acceptance that stated they
understood the reporting requirements. Guardians and
conservators could be held liable if it had been determined that
they had acted outside their fiduciary responsibilities. Senator
Thomas asked if there was a statute that gave consideration to
other persons that might have fiduciary responsibilities over
vulnerable individuals, particularly regarding the foster care
system. Ms. Russo deferred to Mr. Sterling and noted that he
would be better able to answer the question. She concluded that
SB 86 focused on vulnerable adults and not on the foster care
system.
10:25:02 AM
SCOTT STERLING, SUPERVISING ATTORNEY, OFFICE OF ELDER FRAUD AND
ASSISTANCE, OFFICE OF PUBLIC ADVOCACY, DEPARTMENT OF
ADMINISTRATION (via teleconference), began a sectional analysis
of SB 86(copy on file). He reviewed the following sections:
• Section 3 makes the knowing violation or attempted
violation of a financial protective order (introduced in
section 10 of this legislation to protect vulnerable adults
and elders) a crime.
• Section 4 amends AS 11.56.740(c), which defines "protective
orders," by including financial protective orders issued
under AS 13 .26.207 -13 .26.209 to that definition. This
change brings financial protective orders within the class
of protective orders subject to sanction under the criminal
code.
• Section 5 amends AS 12.55.155(c) by adding a new paragraph
(35) which makes the fact that a defendant knowingly
directed criminal conduct at a person 65 years of age or
older an aggravating factor at sentencing.
• Section 6 amends AS 13.26.165(1) by substantively adding
several new paragraphs and changes or additions in
definitions to enhance protection of vulnerable persons in
conservatorship proceedings as follows:
• amends AS 13.26.165 by deleting the words "make another"
and inserting the words "issue another" regarding the
authority of the court to issue a protection order for a
protected person in conservatorship proceedings;
• creates new paragraph (A) to authorize the court to issue
orders protecting a minor with money or property that
needs protection or who otherwise needs protection and
substitutes the word "that" for the word "which" in the
authorizing language;
• creates a new paragraph (B) specifying that the authority
of the court to issue protective orders extends to minors
with business affairs that may be in jeopardy and
substitutes the word "that" for the word "which" in the
authorizing language;
• creates a new paragraph (C) ensuring that protection
extends to any need to protect a minor's funds or obtain
funds for a minor and deletes the unnecessary use of the
word "that" twice in the authorizing language;
• Section 7 amends AS 13.16.lS0(a) by adding "a person's
attorney or other legal representative." to the list of
persons who may petition for a conservatorship and further
adds "or caregiver, the Department of Health and Social
Services" to that list. This change is necessary to broaden
the list of specific persons authorized to petition for a
conservatorship in aid of a vulnerable adult and
specifically to ensure that the Department of Health and
Social Services is authorized to do so when necessary.
10:28:10 AM
Mr. Sterling summarized the remaining sections and explained
that they added financial protective orders, which would operate
similarly to domestic violence protective orders. The
legislation also added ex parte relief that would enable a
vulnerable adult or an intermediary, without a lawyer, to go to
any court and apply for protection to stop ongoing abuse. He
explained that it had become easy to steal someone's money and
identity through technology, and when people became aware of the
problem, they needed help immediately. He furthered that the
rationale behind the ex parte relief provision was to enable
victims to get immediate help and added that other sections
allowed for temporary conservators. Currently, the statutes
allowed for temporary guardians but not conservators. He related
that it was his experience that courts were reluctant to grant
conservatorships because they were not expressly permitted by
statute. The legislation authorized by law the appointment of
temporary conservators. He stated that the clarification would
enhance the ability of victims and DHSS to obtain immediate
relief for victims of financial abuse. He explained that other
portions of bill, which were largely definitional, expanded or
added the definition of things such as fraud, while other
sections added "undue influence" into statue. Under the undue
influence statute, there were specific grounds to assert that a
fiduciary was abusing their responsibility.
10:30:56 AM
Mr. Sterling responded to Senator Thomas's earlier question, and
indicated that the only fiduciaries in Alaska that were required
to be vetted by a court were guardians and conservators. He
stated that trusts were a private matter and furthered that
although there was a section in Title 13 that dealt with trusts,
there were no requirements that a trustee be vetted in any way.
He described Alaska's POA statute, found in Section 13, as "a
maximum utility, minimal regulation, and minimal liability
statute." There were currently no requirements for serving as
POA and there were no standards, licensing, or liability
provisions to deal with abuse. He explained that "maximum
utility" resulted in a greater risk of abuse of fiduciary
responsibility from POA.
In response to an earlier question from Co-Chair Hoffman, Mr.
Sterling indicated that he was not looking at how the tribal
courts interfaced with state courts when he drafted SB 86. He
felt that taking a look at this aspect was a "meritorious" idea
and furthered that he would be "happy" to take a look at it.
10:33:19 AM
KELLY HENRIKSEN, ASSISTANT ATTORNEY GENERAL, HUMAN SERVICES,
DEPARTMENT OF LAW, introduced herself. She stated that half of
SB 86 dealt with Adult Protective Services, which was the office
she represented. She indicated that Mr. Sterling had presented
the part of bill that dealt with conservatorships and financial
protective orders, which is found in Title 13. The part that she
had drafted, found in Title 47, dealt with Adult Protective
Services. The highlights of the Adult Protective Services
Sections, which began at Section 16 of the bill, added the
concept of "undue influence" to the entire Adult Protective
Services code. The legislation updated the Adult Protective
Services code to meet the practical needs of the time. She
stated that because it permeated what Adult Protective Services
did, the term "undue influence" was added anyplace in the
statutes where it specified what kinds of activities someone
might make a report of harm about, such as abuse, neglect, or
self-neglect. She related that most of the Sections in the Adult
Protective Services part of the bill simply added the term
"undue influence", but that there were no other substantive
changes in those Sections. She remarked that another important
thing the Adult Protective Services portion of SB 86 did was
that it updated and added definitions in the statutes to more
accurately reflect reality.
Ms. Henriksen offered that the final element worthy of note from
the portion of SB 86 that she had drafted was that it expanded
the list of what services Adult Protective Services was able to
provide, short of a guardian or conservator being appointed. She
cited examples of these services as follows: staying a financial
transaction at a bank, assistance with a rental application,
providing food, and providing other care services an adult
needed. She indicated that instead of doing a guardian's duties,
Adult Protective Services had discovered a need to have a
clearer definition of what they could do as an intermediary. She
concluded by stating that other than the three elements she had
pointed out, there was not anything significant in the Alaska
Protective Services portion of the sectional.
Senator Olsen stated that he assumed the victimization of elders
represented the minority of cases of financial abuse. Ms.
Henriksen responded that she was unsure if that statement was
correct, but indicated that Ms. Gibbens might be able to respond
to the question. Senator Olsen queried if there was strain being
placed on individuals who were complying with the law and were
legitimately trying to obtain guardianship or conservatorship.
He expressed concern that responsible children could have a
difficult time obtaining guardianship or conservatorship from
parents who were not being abused. Ms. Gibbens replied that she
did not believe that to be true and furthered that the process
followed to gain guardianship or conservatorship was the same
whether or not an individual was attempting to take advantage of
an elder.
10:37:31 AM
Senator Thomas referenced a 25 percent increase in the abuse
rate on the system over the last year and asked if anything in
SB 86 specifically addressed the issue. Ms. Henriksen specified
that the ability to impose financial protective orders and
temporary conservators were two additions that addressed the
increase in abuse.
Senator Thomas queried if Ms. Henriksen thought there should be
a more thorough vetting process, such as a background check,
when a guardian or conservator was appointed. Ms. Henriksen
responded that if Adult Protective Services received a report of
harm, their investigation was "very thorough". She mentioned
that during an investigation informal background checks were
performed, so that when the case was heard any issue about a
potential guardian or conservator would be raised in open court.
She concluded that in her experience, Adult Protective Services
did not take chances when allegations of abuse had been raised.
She furthered that Adult Protective Services gathered as much
information as possible, so that the judge could make the
decision on who was appropriate.
Ms. Henriksen revealed that the transfer of POA was a private
matter that did not require any state involvement or time before
a judge and explained that because of this, the state was
unaware and unable to affect that process. She continued that
Adult Protective Services could only get involved when they
received a report of harm, but that once they were involved, the
process was thorough.
Senate Bill 86 was HEARD and HELD in Committee for further
consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 104 - CSHB104(EDC)Sectional ACPE 3 21 11.pdf |
SFIN 1/18/2012 9:00:00 AM |
HB 104 |
| HB 104 - SBOE Letter on APS Resolution to HEDC.pdf |
SFIN 1/18/2012 9:00:00 AM |
HB 104 |
| HB 104 NEW Sectional (RLS).pdf |
SFIN 1/18/2012 9:00:00 AM |
HB 104 |
| HB104 AWIBAPSResolution.pdf |
SFIN 1/18/2012 9:00:00 AM |
HB 104 |
| SB 86 AARP Support.pdf |
SFIN 1/18/2012 9:00:00 AM |
SB 86 |
| SB 86 OLTCO letter of support.PDF |
SFIN 1/18/2012 9:00:00 AM |
SB 86 |
| SB 86 Sectional Analysis.pdf |
SFIN 1/18/2012 9:00:00 AM |
SB 86 |
| SB 86 Sponsor Statement.pdf |
SFIN 1/18/2012 9:00:00 AM |
SB 86 |
| SB 86 summary of changes 4-15-11.pdf |
SFIN 1/18/2012 9:00:00 AM |
SB 86 |
| CS SB 2 Support Letters.PDF |
SFIN 1/18/2012 9:00:00 AM |
SB 2 |
| CS SB 2 DMV Letter.pdf |
SFIN 1/18/2012 9:00:00 AM |
SB 2 |
| CSSB 2 Sponsor Statement.pdf |
SFIN 1/18/2012 9:00:00 AM |
SB 2 |
| SB 2 Explanation of Changes.pdf |
SFIN 1/18/2012 9:00:00 AM |
SB 2 |
| SB 2 Special Request Plates-Fact Sheet.pdf |
SFIN 1/18/2012 9:00:00 AM |
SB 2 |
| SB 86 Support Letter-Office of Long Term Care.pdf |
SFIN 1/18/2012 9:00:00 AM |
SB 86 |
| SB 86 Support Letter-ACoA.pdf |
SFIN 1/18/2012 9:00:00 AM |
SB 86 |
| HB 104 ACPE Letter.pdf |
SFIN 1/18/2012 9:00:00 AM |
HB 104 |
| HB 104 APS Outcomes Report.pdf |
SFIN 1/18/2012 9:00:00 AM |
HB 104 |
| HB 104 DOR Response.pdf |
SFIN 1/18/2012 9:00:00 AM |
HB 104 |
| HB 104 Rodell to SFC 1-30-2012.pdf |
SFIN 1/18/2012 9:00:00 AM |
HB 104 |