Legislature(2003 - 2004)
04/14/2004 01:45 PM House JUD
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* first hearing in first committee of referral
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HB 427 - PROTECTION OF PERSONS AND PROPERTY Number 1160 CHAIR McGUIRE announced that the next 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." [Before the committee was CSHB 427(HES).] Number 1129 REPRESENTATIVE ANDERSON, sponsor, made a motion to adopt the proposed committee substitute (CS) for HB 427, Version 23- LS1627\I, Bannister, 4/14/04, as the work draft. There being no objection, Version I was before the committee. REPRESENTATIVE ANDERSON explained that Version I encompasses changes and recommendations made in the House Health, Education and Social Services Standing Committee. He offered his belief that HB 427 will go a long way towards preventing exploitation and mistreatment of vulnerable and incapacitated adults receiving the services of a private guardian or conservator, and relayed that it was drafted with input from the Alaska State Association for Guardianship and Advocacy (ASAGA) Inc., Office of Public Advocacy (OPA), Adult Protective Services, Office of the Long Term Care Ombudsman, Disability Law Center [of Alaska], Senior Advocacy Coalition, and [judicial branch of government]. REPRESENTATIVE ANDERSON mentioned that professional guardians - both private and public - and family guardians provide services to approximately 2,500 disabled, vulnerable, Alaskan adults. He noted that under current law, private guardians and conservators - individuals with the responsibility to make housing, legal, and medical decisions for the disabled, infirm mentally ill, and seniors - are completely unregulated by the state. Many other states regulate private guardians, he remarked, because vulnerable and incapacitated adults are easy prey for those wishing to exploit them. REPRESENTATIVE ANDERSON said that HB 427 grants the state regulatory authority over private guardians and conservators, and establishes minimum qualification standards. State oversight, he opined, will ensure that vulnerable and incapacitated adults receive the care that they deserve. Under the bill, the Division of Occupational Licensing would have the authority to revoke a private guardian's license if he/she is found to have abandoned, exploited, abused, or neglected someone in his/her care, or [is shown to be] unfit due to professional incompetence. In conclusion, he said he supports the bill. REPRESENTATIVE GRUENBERG asked whether HB 427 was modeled after legislation in other states. REPRESENTATIVE ANDERSON said he believed so. Number 0928 JOSHUA FINK, Public Advocate, Anchorage Office, Office of Public Advocacy (OPA), Department of Administration (DOA), thanked Representative Anderson for introducing HB 427, calling it important legislation. He went on to say: In this state we regulate barbers, hairdressers, acupuncturists, [and] ... concert promoters, but we don't regulate guardians and conservators who ... take care of incapacitated and vulnerable adults, who are in positions where they very easily could be exploited. And we've had some situations of concern over the past couple of years. This legislation, which was modeled off of pieces of Arizona's law [and] Washington [state's law] was put together with a number of groups .... I do want to say, I'm indebted to those people I worked with - I [only] ... took their product and brought it to Representative Anderson ..., [and] I am grateful that he introduced that. MR. FINK, in response to a question, explained that Arizona, Washington, California, and Texas have laws that require registration; those laws were looked at during the development of HB 427. REPRESENTATIVE GRUENBERG directed attention to Section 6, regarding the appointment of a guardian ad litem, and asked whether it modifies Rule 17(c) of the Alaska Rules of Civil Procedure. He opined that if it does, then there should be an amendment to the title reflecting that. MR. FINK offered his belief that the bill does not amend Rule 17(c) of the Alaska Rules of Civil Procedure, but offered to research that issue. REPRESENTATIVE GRUENBERG opined that the language on page 11, line 21, takes away the courts discretion regarding the appointment of a guardian ad litem. Number 0661 JAMES H. PARKER, Assistant Public Advocate, Anchorage Office, Office of Public Advocacy (OPA), Department of Administration (DOA), offered his belief that although Rule 17(c) allows the court to appoint a guardian ad litem to sue or defend on behalf of a infant or incompetent person, Section 6 is not creating a right for a guardian ad litem; instead, Section 6 modifies existing statute - Title 13 - regarding the process of appointing a guardian ad litem and his/her primary function. Additionally, Rule 17(c) says in part, "The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action". He offered his belief that the bill doesn't modify Rule 17(c). REPRESENTATIVE GRUENBERG pointed out, however, that Rule 17(c) also says in part "or shall make such other order as it deems proper", and opined that this language gives the court discretion. CHAIR McGUIRE and REPRESENTATIVE GRUENBERG mentioned that the committee would be requesting an opinion on this issue from Legislative Legal and Research Services. Number 0556 BETTY WELLS, Member, Alaska State Association for Guardianship and Advocacy, Inc. (ASAGA), relayed that she is chair of the task force that sought assistance from the various groups that developed HB 427, that she is affiliated with the National Guardianship Association, Inc., that she works as a "court visitor" in Anchorage and its surrounding area, and that she has been involved with the issue of adult guardianship for the last 15 years. She went on to say: I'm aware that Alaska is not alone in reviewing and changing the statutes to protect vulnerable adults. Although most of the changes proposed in this bill clarify current statutory language and practice, there is now legislation proposed to regulate private agencies, and I believe that to be a vital part of the bill. With some abuse that we uncovered in a court trial on the viability of a private agency in 2001 and in 2002, we discovered that we really couldn't continue to operate without some form of registration or licensure of private professional guardians. Our current statute leaves us vulnerable to a system where there is opportunity for corruption, as discovered in our own court case. And, as stated before, there are no regulations providing any oversight to private guardianship agencies. The court monitors individual guardianships, and our statutes have provisions for mandatory reporting; unfortunately, it's not adequate for the oversight that we need. Passing this legislation will assist the courts by licensing professional guardians. It will take the question of an agency's qualifications or viability out of [the] court system and allow them to concentrate on the merits of each case. I've learned that Alaska is a leader with respect to respondent's rights in adult guardianship cases: they have the right to an attorney, to a hearing, to a jury trial on the issue of incapacity; [and] we have a great public guardianship program for those indigent adults who qualify. There is room, however, for private agencies in Alaska, and [the] ASAGA supports the appointment of private agencies when appropriate. By mandating regulations and the establishment of professional standards, Alaska will continue to be a leader with respect to these issues. Passing this bill will go a long way in putting the trust back into the system. MS. WELLS concluded: [The] ASAGA anticipates only a small number of licenses will be issued, and anticipates no fiscal note, as the fees generated for obtaining the license will cover the costs. Licensure will ensure continuing education in the areas of guardianship, and [the] ASAGA already sponsors at least one conference each year, where people can get their continuing [education]. The bill also outlines minimum educational requirements for families and friends that wish to become appointed. I'd like to thank representative Anderson for sponsoring HB 427, and the [House Judiciary Standing Committee] for hearing this bill and [providing me with] the opportunity to voice my support. Number 0335 REPRESENTATIVE GRUENBERG gave an example of a case in which a woman's former attorney had been appointed as her guardian ad litem even though he had access to confidential information about her and ultimately used that information against her, and suggested that Section 6 might need to be altered to ensure that such a person would be removed as a guardian ad litem because of a conflict of interest. MR. PARKER offered: I can tell you what the thinking was behind [this proposed] amendment [to current statute]. The statute currently provides for the appointment of a guardian ad litem, but that is the first thing that occurs with the appointment of an attorney to represent the respondent, and the attorney is to act under the traditional attorney-client model, where the attorney advocates for the express wishes of [his/her] client. There has been, nationally, criticism of the effectiveness of representation of respondents in guardianship cases. I don't think we have a tremendous problem here, but ... it [has] been noted that at times there's been a tendency for attorneys, when they are representing incapacitated persons, to advocate, not for what the client says, but for what they believe is in the client's best interest. The feeling was that this statute, as it currently is written, is not clear enough that the attorney should act as an attorney unless it is impossible for the attorney to ascertain, or for the client to communicate, what their wishes or preferences or desires are concerning the issues at stake in the guardianship case. So the way we would hope this would work is that a person enter an appearance as an attorney or, more frequently, they would be appointed, because most attorneys for respondents in guardianship cases are appointed. When they visited with their client, they would certainly attempt to have a conversation about the issues at hand and what the client's position would be. But ... I can tell you, there are a certain number of cases where a person ... [is] going to be nonverbal or perhaps they're in a coma, and at that point, you simply cannot act as an attorney in the traditional sense, where you're advocating for your client's wishes. ... TAPE 04-65, SIDE A Number 0001 MR. PARKER continued: At that point, it would be appropriate for the attorney to request that they be treated as a guardian ad litem, and then the statute provides guidance as to how the analysis should take place [regarding] what the attorney, who's acting as guardian ad litem, is going to advocate for, and to make sure that it's not just a matter of saying, "Well, we agree with the visitor's report," that there is an inquiry. But the purpose of this legislation ... is to clarify that ... consistent with your ethical duties, you act as an attorney representing your client's wishes despite their incapacity. And as you know, the code of professional responsibility mandates that ... attorneys treat their clients, and act as attorneys to the greatest extent possible, in the ordinary way when they have clients with incapacities. It should be noted that in the sanity context, when [an] attorney is appointed to represent somebody who's the subject of an involuntary commitment petition, the attorney acts as an attorney and ... I've never heard of (indisc.) to guardian ad litem. I think this recognizes there are situations where there needs to be a guardian ad litem appointed, but also acknowledges that it's a slippery slope, and that there should be more objective standards about when you do that and it should be only when you cannot ascertain your client's position or your client [is], at that time, incapable of communicating [his/her] wishes. ... Number 0152 KENNETH C. KIRK, Attorney at Law, Kenneth Kirk & Associates, offered to address this issue as well. REPRESENTATIVE GRUENBERG suggested instead that the interested parties simply consider the issue, adding that he just wants to ensure that the court would not be able to appoint someone as a guardian ad litem if he/she intended to use confidential information against his/her client. MR. KIRK offered his belief that the Alaska Rules of Evidence would be the appropriate place to include language to that effect. After noting that he has been involved in a lot of conservatorship and guardianship appointments, he relayed that he has never used guardian ad litem powers except in situations where the client was really not able to express a preference, for example, the client was comatose or catatonic. Short of such an inability, he opined, a client has a constitutional right to be represented by an attorney that will act as the client wishes. MR. KIRK also pointed out that Rule 1.14 of the Alaska Rules of Professional Conduct speaks to "the decisions the attorney has to go through, ethically, when deciding whether to ask for a representative for the client ... in a guardianship or conservatorship context, where perhaps the main issue of the litigation is whether the person is competent." It would be problematical under Rule 1.14, he opined, to turn on one's client as portrayed in the example given earlier by Representative Gruenberg. Number 0362 MR. KIRK, speaking to the bill, said: I like this bill except for one aspect and that's ... Sections 1-4, which basically create a new regulatory regime for guardians and conservators. It's not a bad bill in isolation, and if we had a lot of people clamoring for this kind of work, I think it'd be an excellent idea. The problem is, we don't; we are very shorthanded. ... Basically we have two people who do private guardianship work in the greater Anchorage area and I think one other that does conservatorship work. ... To put up additional barriers to entry into that field is a real problem. These provisions are not only going to make it more difficult for people to get into ... this thing, ... [but] basically you have to come up with some money and jump into it whole hog; you wouldn't be able to go into it sort of bit by bit maybe while working at some other job and taking a few of these cases and eventually building up a clientele. And it applies even if there's only one client. For example, if [you] have somebody who needs a lot of guardianship assistance and has a friend who's willing to do that but the friend wants to be paid for the substantial commitment of time, as I read the bill, that person would have to go through and qualify as a private guardian if he's going to [get] paid for it. But even aside from that, I'm just really concerned about [the fact that] we have enough trouble getting people to do this kind of work; we already have a way - basically [via] the probate court - to make sure that people who are incompetent or unqualified or who (indisc.) need other necessities - such as posting a bond if necessary - are kept out. And so I'd really encourage taking out Sections 1-4 and the various other references in the other sections that are dependent on that. Thank you. CHAIR McGUIRE suggested that Sections 1-4 are "the crux of the bill." MR. FINK agreed, and said he opposes deleting Sections 1-4. Number 0500 MR. PARKER said he disagrees with the suggestion to delete Sections 1-4, but acknowledged that Mr. Kirk has a valid point regarding the need for more private guardians and conservators. He opined that Sections 1-4 are the crux of the bill and won't place onerous burdens on private professional guardians and conservators. He noted that proposed AS 08.26.010 says that a person may not engage in the business of providing services as a guardian or conservator unless the person has a license to do so, and said he did not think that receiving free room and board for taking care of a family member, for example, qualifies as a business, though if more specificity is needed regarding what constitutes a business, then that could be addressed. REPRESENTATIVE GRUENBERG turned attention to Section 6, subsection (c), and indicated that he still has concerns about a person's former attorney being appointed as his/her guardian ad litem, opining that such would be a direct conflict of interest if the person is still able to make his/her wishes known but the attorney didn't wish to follow those wishes as an attorney and so sought appointment as the person's guardian ad litem. He asked whether language precluding such ought to be added to that provision. MR. PARKER offered his belief that changing the standard of appointment from "when the ward or respondent cannot determine the ward or respondent's own interests without assistance", to "when the [ward, protected person, or] respondent is incapable of determining the ward's, protected person's, or respondent's position regarding the issues involved in the pending proceedings", will eliminate the possibility of a conflict of interest. MR. FINK said that if the respondent can, in any way, communicate with his/her attorney, then the appointment of a guardian ad litem is not appropriate, and such is the intent of the bill. REPRESENTATIVE GRUENBERG indicated that his concern has been satisfied by the remarks of Mr. Fink and Mr. Parker. Number 0845 REPRESENTATIVE SAMUELS moved to report the proposed CS for HB 427, Version 23-LS1627\I, Bannister, 4/14/04, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 427(JUD) was reported from the House Judiciary Standing Committee.
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