Legislature(2003 - 2004)
04/06/2004 03:10 PM House HES
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* first hearing in first committee of referral
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HB 427-PROTECTION OF PERSONS AND PROPERTY Number 0073 CHAIR WILSON announced that the first order of business would be HOUSE BILL NO. 427, "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 Rules 16(f) and 17(e), Alaska Rules of Probate Procedure; and providing for an effective date." Number 0118 CHAIR WILSON announced that Representative Kapsner has joined the meeting. Number 0184 JIM PARKER, Attorney, Public Guardian Section, Office of Public Advocacy, testified on HB 427 and answered questions from the committee. He told the members that Joshua Fink [Public Advocate, Office of Public Advocacy] sent a letter to the committee in response to comments that were made at the last hearing, and offered to review important points he addressed. CHAIR WILSON agreed that would be a good place to start because the information in the letter conflicts with testimony received last week. MR. PARKER said that the first point that Mr. Fink made is that this legislation is about regulation of professional guardians and conservators, not family members who are taking care of disabled relatives. This bill also exempts financial institutions who are already regulated sufficiently under existing Alaska law. MR. PARKER responded to a comment made by a testifier ["B" Jarvi] from Fairbanks who said that the rate set for private guardians is $40 per hour. This is not correct, OPA's has regulations which setout the fees. The majority of the clients' fees are about $40 per month, although the fees can go up as high as $145 per month, but not $40 per hour, he stated. MR. PARKER commented on a second suggestions by Ms. Jarvi that OPA public guardians should be subject to this legislation. He said that this suggestion ignores the fact that OPA's public guardians are state employees and are regulated by the processes of state government which has oversight by the state advocate, who serves at the pleasure of the governor, and is subject to oversight by the legislature. Mr. Parker said that if a public guardian were to take financial advantage of a client, that client would be protected as a risk management function of the Department of Law that would indemnify the client for all law suits. Number 0340 MR. PARKER told the committee that currently all public guardians have passed the examination and are registered with the National Guardian Foundation. He noted that four have received advanced certification. Mr. Parker admitted that criminal background checks are not done on public guardians, but when a person applies for work with state government that person must identify and explain criminal history. Mr. Parker added that OPA is considering background checks on all public guardians. Number 0512 MR. PARKER commented that Ms. Jarvi also testified that she believes court visitors should also be included in this legislation. He said that he believes her statement reflects a lack of understanding of the role of the court visitor. A court visitor is an uninterested third-party who does investigations and provides feedback to the court on whether guardianship should be approved, arranges evaluations, interviews the petitioner, family, friends, and care providers; and then provides a written report in guardianship cases. While court visitors have access to financial records, they do not have access to the resources, he explained. He said he does not see the need for the bonding requirement that was suggested. MR. PARKER said that his last point addresses the assertion that the OPA is in league with the court visitors to steer cases to OPA. He told the members that is not the case. The agency is required by statute to look at family, friends, or private alternatives. If there is someone available it is important that OPA be sure that the person will do a good job and protect OPA's client's interest, he said. MR. PARKER told the members that many organizations were involved in this process including Adult Protective Services, the Alaska Trust Company, the Alaska Court System, the Office of the Long Term Care Ombudsman, the Office of Public Advocacy, the Disability Law Center, private attorneys, court visitors, and private professional guardians such as Dave Shady, the principal at Professional Guardian Services Corporation who was invited to participate in this process. In summary he said he believes this is good legislation. Number 0571 CHAIR WILSON asked how many public guardian are employed with the state. She noted that four of the guardians had received advanced certification. Number 0595 MR. PARKER said he believes there are fourteen. Number 0707 SUSAN ARMSTRONG, Ombudsman, Office of Long Term Care, Older Alaskans Commission, testified in support of HB 427. She told the members that for the last one and a half years the office has participated in the task force that spearheaded this project. Ms. Armstrong said that the participants included the Alaska Court System, the Office of Public Advocacy, the Disability Law Center, and private professional guardian services among others, and achieved consensus on the foundation for this legislation. She emphasized that all private professional guardian services were invited to participate on this task force. At the center of the proposed legislation is the regulation of private professional guardians and conservators. MS. ARMSTRONG explained that the Office of Long Term Care investigates complaints concerning the health, safety, welfare, and rights of older Alaskans. Over the years the office has worked on a number of cases regarding the action or inaction of private professional guardians and conservators, she said. While there are dedicated people serving in this capacity, there are less principled counterparts that cast a shadow on this very necessary service. MS. ARMSTRONG told the members that currently there are no enforcement powers over private professional guardians that the office can turn to other than the court system. By contrast when a public guardian's actions are an issue there are a number of resources to ensure it is corrected properly. Ms. Armstrong pointed out that public guardians are subject to state laws governing their actions, and state ethics laws that direct the actions of any state employee. She said that the safety measures are in place for the acts of public guardians, although it is rarely necessary. Ms. Armstrong told the members that public guardians must meet minimum qualifications and have specific education and qualifications to be hired, which is not true for a professional private guardian. In summary, she said as the older population grows it is important to refine how they are served by creating a licensure and oversight agency which regulates private professional guardians and conservators. Number 0853 EDIE ZUKAUSKAS, Attorney, Disability Law Center of Alaska, testified in support of HB 427. She told the members that the Disability Law Center has been a party to this long overdue legislation. As the Alaskan population ages and life expectancy increases the need for more private professional guardians and conservators will also increase. Ms. Zukauskas said that she believes this bill will provide protection of the most vulnerable citizens. MS. ZUKAUSKAS pointed to page 5, lines 16 through 20, which reads: (3) a written waiver of confidentiality signed by the applicant allowing the department to access at any time relevant complaint information made about the applicant to adult protective services, the designated protection and advocacy agency, the long-term care ombudsman, or an entity that certifies or licenses private professional guardians or private professional conservators; MS. ZUKAUSKAS commented that the language in the bill strives to ensure the protection of the rights of the individuals needing a guardian or a conservator. This language clarifies that this particular section is intended to say that the privacy of the applicant is being waived and not those of the ward or other protected person. She urged the members to act upon this bill as soon as possible. Number 0952 SHARON WELLS, private professional guardian, Senior Care Services, testified in support of HB 427. She told the members that her organization actively participated with the group that drafted the bill that is before the committee for consideration. Senior Care Services has been providing professional guardianship services since December of 1999. In the past four years it has been appointed by the Superior Court to be a guardian and/or conservator for individuals with some type of incapacity. She added that Senior Care Services does not accept any clients except those appointed by the courts. MS. WELLS shared that her work experience reflects that her primary focus has been providing services for incapacitated elderly. She told the members that she was a social worker for 18 years at the Anchorage Pioneer's Home. As a court appointed guardian, Senior Care Services has been appointed to cases when the ward has funds to pay the fees and when the incapacitated person does not have friends or family who can serve in that role. The hourly fees that Senior Care Services' charges are based on the work that is done. Number 1097 MS. WELLS stated that at no time since the business started has she felt she was in competition with OPA or any other private professional guardians. She stated that making decisions for another person can be very difficult and a great responsibility. Managing another person's financial matters can be complicated, she said. For these reasons Senior Care Services supports the concept of licensure of private professional guardians. The requirements are not extensive and should not discourage people from entering this profession. However, it is important to ensure that those in the profession have the skills to make appropriate medical and financial decisions for vulnerable adults. She said it is her understanding that the proposed changes will provide that a professional guardian will estimate the average monthly fees that will be charged to the estate, and if additional fees are required due to a crisis, the guardian will need to seek court approval. This oversight will provide some assurance to the court. Ms. Wells urged support of HB 427. Number 1215 ROBERT PENZENIK testified in support of HB 427. He told the members that he is speaking on behalf of himself and his daughter. There are a small but very important group of Alaskans who need protection, he said. Mr. Penzenik explained that he has been both a provider and user of the guardianship services. His most recent experience of these services has been for his daughter who has been found to need a guardian or conservator. He shared that in order to provide a more comfortable family relationship it was decided to utilize the services of a paid professional guardian rather than a family member. He said that he could not have been more pleased with the outcome. Mr. Penzenik added that his daughter has a large and active support system in her life. MR. PENZENIK explained that the reason he is testifying today is for the concern of those vulnerable adults who do not have that support system in place. He told the members that a number of years ago he was a conservator for some children who lost their father in a plane accident and became aware of how easy it would be for someone acting as a guardian or conservatory to inappropriately utilize funds belonging to others. He said that while his experience goes back to the 1970s, he does not believe the situation has changed very much. The situation that happened recently in Fairbanks with Community [Advocacy Project of Alaska, Inc. (CAPA) is a case in point. Mr. Penzenik noted that if HB 427 had been law prior to CAPA's bankruptcy the clients would have been protected. He pointed out that even though CAPA had already been removed from guardianship of seven cases, it was still allowed to operate. Number 1325 MR. PENZENIK told the members that he believes there are a number of weaknesses in the present system which would be addressed by HB 427. For instance, there is no requirement of a criminal background check. The danger is obvious. Courts do not have a way of checking to see if a prospective guardian has been removed from any other case, he said. Another essential element is that there is no training or experience required to be a private professional guardian or conservator, he added. In summary, he said that there will be no cost to the taxpayers of Alaska since the licensing will be fully self-supporting. Number 1399 MARIEANN VASSAR, President, Alaska State Association for Guardianship and Advocacy, testified in support of HB 427. She told the members that she is a court visitor and worked on the task force to develop the legislation before the members. During that process it became obvious that another method of determining the viability of a private professional guardian is necessary. She explained that there was a very lengthy legal battle which could have been avoided had there been law in place to determine viability of an agency. In "B" Jarvi's testimony that CAPA had adequate insurance to cover the losses that were incurred due to its bankruptcy, Ms. Vassar commented that her recollection of that incident is that it is not a true statement. The $250,000 that CAPA had in no way covered the losses of its clients who were impacted. Ms. Vassar added that while the cases are not settle, she does not believe those people will ever be made whole. She recommended that the legislature support this bill. Number 1450 ELIZABETH LUCAS, State President, AARP, testified in support of HB 427. For several years AARP has supported the idea of implementing guidelines and statutes for guardianships and conservatorships. Unfortunately, currently many members of AARP need these services. All of us will be better off with HB 427 as part of Alaska law. She urged the members to pass HB 427. Number 1564 REPRESENTATIVE GATTO commented that in the sponsor statement it says the following: Under Alaska law, the court first looks to appoint guardians nominated by the incapacitated person if the choice is a reasonably intelligent one. REPRESENTATIVE GATTO said that in looking in the bill he does not see that protection provided for in HB 427. MS. LUCAS suggested that someone else might be able to address that point. JIM SHINE, Staff to Representative Tom Anderson, Alaska State Legislature, testified on HB 427. He recommended that the question be address to Mr. Parker or Mr. Fink. MR. PARKER asked for clarification of the questions. Number 1636 REPRESENTATIVE COGHILL said that he believes that point would be addressed in Section 16, on page 16. MR. PARKER agreed that this point is addressed on page 16, line 18, where the words "reasonably intelligent" were replaced with the words "informed choice." The idea here is that the person who is incapacitated should have some choice about who it is that should be making decisions for them, and the priority for respecting this choice is that the person be informed. Number 1671 CHAIR WILSON asked approximately how many people across the state need guardians. MR. PARKER responded that he has heard that there are about 2,500 individuals, but cannot confirm the accuracy of that number. CHAIR WILSON commented that is the number provided in the sponsor statement. Number 1697 REPRESENTATIVE CISSNA referred to page 2, line 13, where the term "trustworthy person" is used and asked if there is a definition [in statute]. MR. PARKER commented that Ms. Armstrong may have some input on that. He said that this statute comes from the Division of Occupational Licensing. He admitted that trustworthy is not a precise term of art or a legal term. Number 1774 CHAIR WILSON questioned whether the word trustworthy is defined in Alaska statute. MR. PARKER said he does not believe so. REPRESENTATIVE CISSNA referred to the word "degree" on page 2, lines 9 and 28. She asked if an associate's degree would meet these standards or is a bachelor's degree required. MR. PARKER replied that he believes it is referring to a bachelor's degree. REPRESENTATIVE CISSNA commented that the term "degree" should be clarified because an associate's degree is also a degree. REPRESENTATIVE CISSNA pointed to page 4, lines [19 through] 28, where there is discussion about temporary licenses. She asked if there is a required background check before a temporary license is issued. Number 1874 REPRESENTATIVE CISSNA said that on page 6, line 30, subsection (6), which addresses an annual report and reads as follows: (6) a list of all current employees of the licensee. REPRESENTATIVE CISSNA commented that this language says that all employees of the licensee must be listed. She asked if in the case where the licensee has a separate [unrelated] business, would this bill require that employees of the other businesses also have to be listed in the annual report. JIM SHINE, Staff to Representative Tom Anderson, Alaska State Legislature, testified on behalf of Representative Anderson, sponsor of HB 427, and answered questions from the committee. In response to Representative Cissna's question about background checks and temporary licenses, he asked the members to look at page 6, lines [11] through 14 which reads as follows: (b) The department may not issue a license to a person under this section unless the department receives the report required by (a)(3) of this section. MR. SHINE explained that this includes the issuance of a temporary license. He referred Representative Cissna's second question to Mr. Parker. Number 1927 MR. PARKER said that while Teresa Bannister drafted the language, he believes the employees that would be required to be listed are those who work in the business that provides guardian and conservator services. JOSH FINK, Director, Office of Public Advocacy, testified in support of HB 427 and answered questions from the members. He told the members that the language might be changed to read as follows: (6) a list of all current employees operating under the licensee. MR. PARKER clarified his belief that this language was not intended to cover other businesses. REPRESENTATIVE CISSNA pointed out that there needs to be two changes in the language of the bill. On page 2, line 9 [and 28], the kind of degree needs to be delineated. On page 2, line 13, the term "trustworthy" does not appear to be terms of art so specific wording needs to be used, she said. Number 2018 REPRESENTATIVE WOLF moved Amendment 1 as follows: On page 2, line 13, and page 3, lines 1 and 14 Delete the word "trustworthy" REPRESENTATIVE WOLF told the members that there needs to be a definitive language. CHAIR WILSON asked for a response from the sponsor on these points. She suggested that the bill be revised to addresses the points the committee brings forward. Number 2088 REPRESENTATIVE WOLF said that Sec. 08.28.020 sets requirements for those individuals who could be given an individual private professional guardian license. MR. SHINE agreed with Representative Wolf and said that he does not believe the sponsor would have any problem removing the term "trustworthy." Number 2148 REPRESENTATIVE SEATON objected to Amendment 1 for purposes of discussion. REPRESENTATIVE GATTO commented that he does not have a problem with the word trustworthy even though it is not defined. He said that a person, such as a judge, may get a gut feeling about a person even though that person may meet every requirement. Representative Gatto summarized that he does not believe this term either adds or detracts from the bill and would object to the amendment on that basis. REPRESENTATIVE SEATON agreed with Representative Wolf on this issue because the term "trustworthy" allows a huge amount of flexibility. He said he believes it is important to set out objective criteria upon which people are approved. The decision should not be based upon an impression, he stated. MR. FINK told the members that the Office of Public Advocacy has no problem with Amendment 1. He pointed out that other language is more objective. On page 2, line 16 [through 19], which reads as follows: (6) whose criminal history record checks under AS 08.26.070 show that the individual has not been convicted of a crime within 10 years of the application that would affect the individual's ability to provide the services of a guardian competently and safely for the ward; and MR. FINK believes that it will be necessary to determine by regulation what crimes would preclude an individual from serving. He said he believes those would be crimes of dishonesty or crimes against an individual. Mr. Fink summarized that is a more objective way to define character. Number 2240 REPRESENTATIVE GATTO replied that he does not believe it is possible to address all the qualifications necessary to serve as a guardian or conservator. He posed a hypothetical example where a person who had applied to be a guardian had filed two bankruptcies. Even though the person may have met all the other qualifications, he/she does not have the skills to be a guardian. Wouldn't it be something that should be considered when making the decision to appoint an individual as a guardian, he asked. The applicant could argue that past bankruptcies have nothing to do with the decision to appointment as guardian. Number 2274 REPRESENTATIVE COGHILL commented on the ability to determine if a person is trustworthy or not. He stated that he believes the qualifications for licensing should be based upon credentials. Number 2290 REPRESENTATIVE SEATON removed his objection. REPRESENTATIVE WOLF restated Amendment 1 to be a conforming amendment as follows: On page 2, lines 13, page 3, lines 1 and 14 Delete "trustworthy" Renumber appropriately There being no objection, Amendment 1 was adopted. Number 2357 REPRESENTATIVE CISSNA moved Amendment 2 as follows: On page 6, line 30, after "employees Delete "of" Insert "operating under" There being no objection, Amendment 2 was adopted. TAPE 04-28, SIDE B Number 2342 REPRESENTATIVE SEATON commented that on page 2, lines 9 and 28, refer to the requirement that a degree is necessary. He said he is not convinced that a bachelor's degree is necessary to be a licensed guardian. Representative Seaton told the members that if someone has an Associate of Arts degree in sociology or psychology he said he thinks that might be acceptable. He asked for the sponsor to comment. Number 2322 MR. SHINE replied that he would like to defer to the members of the task force who worked on crafting the language. BETTY WELLS, President, Alaska State Association for Guardianship Advocacy (ASAGA), testified in support of HB 427 and answered questions from the members. She told the member that she was involved with the drafting of this legislation and it was never their intent to have a bachelor's degree be a requirement. An associate's degree could meet the requirements, she stated. CHAIR WILSON asked if she is happy with the language as it is. MS. WELLS replied that it should be clarified to say "at least an associates degree." REPRESENTATIVE GATTO asked Ms. Wells if the terms "credential" or "certification" would be closer to the intent language of those working on this legislation. MS. WELLS responded that she does not understand Representative Gatto's question. She pointed out that currently there is a requirement that the guardian be certified as a registered guardian by a nationally recognized organization. This language just says there needs to be some schooling, she explained. REPRESENTATIVE SEATON moved Conceptual Amendment 3 as follows: Page 2, line 9, after "or" Insert "at least an associates" Page 2, line 28, after "has" Insert "at least an associates" There being no objection, Amendment 3 was adopted. Number 2185 REPRESENTATIVE WOLF moved Amendment 4 as follows: On page 3 Delete lines 24 through 27 Number 2171 CHAIR WILSON objected for purposes of discussion. REPRESENTATIVE WOLF told the members that he is concerned with the language that refers to limited liability companies. He pointed out that there are both for profit and nonprofit businesses providing guardianship services. Under a limited liability company the company is limited on the amount of funds for which it can be held accountable. He said he believes this is a loophole in the language. MS. WELLS replied that the language Representative Wolf is referring to was provided by Teresa Banister, Legislative Legal and Research Services. She commented that ASAGA does not have a strong opinion about this language. REPRESENTATIVE WOLF commented that a nonprofit organization has the ability to purchase insurance for its directors and officers. He reiterated his concerned that by allowing limited liability companies licenses to care for vulnerable adults could mean there would be little or no liability. REPRESENTATIVE SEATON commented that he believes this means that if an organization applies [to be a guardian] all the members and officers have to undergo a criminal background check. If this language is eliminated a limited liability company could apply and no background check would be required of anyone. REPRESENTATIVE WOLF asked if the committee could be provided a legal opinion on this language. Number 1916 MS. ZUKAUSKAS said that she is not familiar with the definition of a limited liability partnership. She said that the intent was to have every person that is making decisions in these organizations have to undergo a criminal background check. REPRESENTATIVE WOLF maintained his concern that limited liability companies that are involved in caring for vulnerable adults could do so with little to no liability. MR. SHINE pointed out that the next committee of referral is the House Judiciary Standing Committee. CHAIR WILSON stated that she would like that point addressed in the House Judiciary Standing Committee. REPRESENTATIVE WOLF withdrew Amendment 4. Number 1906 REPRESENTATIVE COGHILL referred to pages 16 and 17 where there is a list of priorities for appointment as a guardian. He pointed to page 17, lines 1 and 2, which reads: (e) The priorities established in (d) of this section are not binding, and the court shall select the individual REPRESENTATIVE COGHILL stated that he would like to see language inserted that would provide more binding language. He pointed out that there have been assertions that competition exists between public and private guardians. He said he does not believe this should be used as a tool to direct more work toward a state agency. Representative Coghill emphasized that he wants to see more private guardians. These rules are significant, he said. Number 1787 CHAIR WILSON replied that this point could be addressed in the House Judiciary Standing Committee. REPRESENTATIVE SEATON told the members that he is also concerned with this issue. His greatest concern is for the spouse of the person requiring a guardian. He pointed out that the department could determine that the more qualified individual is the professional guardian, and that could mean that the spouse would be superseded from serving. Representative Seaton said he does not want to see a situation where the state guardian takes the place of the spouse unless there is some detrimental effect or that the spouse is incapable of serving. Number 1731 PEGGY JO WHITTINGTON, Owner, Iliamna Services, testified in support of HB 427. She told the members that she is a licensed guardian. It is important to make guardians more accountable within the guidelines of the state, she said. Ms. Whittington explained that the passage of this bill will make bonding and insurance more easily accessible. She pointed out that the fees charged for guardian services need to be more accountable. REPRESENTATIVE CISSNA asked if a letter will accompany the bill to the House Judiciary Standing Committee which outlines the concerns of the members. Number 1597 MR. SHINE told the members that Douglas Wooliver, Administrative Attorney, Office of the Administrative Director, Alaska Court System, had planned on testifying, but was called away. He read the following statement into the record: The court strongly supports the creation of some kind of regulatory oversight of professional guardians or conservators. Such oversight will help judges make sure that the appointments they make will be in the best interests of the wards. MR. SHINE said he believes that someone from the OPA could address the concerns about the process that Representative Seaton mentioned, in that a professional guardian could be chosen over a spouse. REPRESENTATIVE SEATON commented that the House Judiciary Standing Committee may find that this language is fine. He said that he would be satisfied if that committee looked at the legal aspects of the "not binding" language. REPRESENTATIVE COGHILL said that he will be asking the House Judiciary Standing Committee to ensure that the courts to not go first to the public guardian who has a conflict of interest in the guardianship being awarded to private guardians. Number 1496 REPRESENTATIVE WOLF asked if he could be removed from voting on this bill since he serves as a guardian. He told the members that his son is 23 years old and has Down Syndrome. When reading this bill he came across language on page 16, lines 7 through 11, which brought to mind a personal nightmare that he and his wife experienced. He explained that when his son turned 18 years old, a court visitor came to their home and read his son his rights. His son collapsed on the floor because he did not understand. The court visitor explained that it was necessary to follow through with the informational session and she refused to stop. Representative Wolf told the committee it took an hour to calm his son down and convince him that he was not being taken away. The court appointed an attorney to determine that we were the appropriate people to take care of the son that God gave to us, he stated. This attorney told us that our son was worth X number of dollars, and that if we did not go after every benefit that he was entitled to in this state, the state would take him away from us. Representative Wolf stated that he would not want any parent, spouse, family, or friend to ever have to go through that. He said that when he saw this language, he was outraged. He told the members he considered doing an amendment, but was reminded that there is an issue of abuse going on. Number 1330 REPRESENTATIVE COGHILL objected to Representative Wolf's request to be removed from the requirement of voting. REPRESENTATIVE GATTO referred to page 17, line 1 through 6, which reads: (e) The priorities established in (d) of this section are not binding, and the court shall select the individual [PERSON, ASSOCIATION,] or organization [NONPROFIT CORPORATION] that is best qualified and willing to serve. The court shall also consider [GIVE CONSIDERATION TO] a nomination by a person described in (d) of this section and to a nomination in the will of a deceased parent or spouse of the incapacitated person. REPRESENTATIVE GATTO said he believes this subsection opens up the question of who can be appointed guardian. He stated he likes the order which was listed in the bill and believes there needs to be a compelling reason why this order would not be followed. Number 1272 CHAIR WILSON said she does not agree. She posed a hypothetical example where there is a car accident and the parents are killed. If these parents left a will directing who will care for their children should something happen to them, then she said she believes that request should be honored by the court. Number 1196 REPRESENTATIVE SEATON moved to report CSHB 427, Version D, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 427(HES) was reported out of the House Health, Education and Social Services Standing Committee.
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