Legislature(2007 - 2008)SENATE FINANCE 532

02/06/2008 09:00 AM Senate FINANCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 8 MENTAL HEALTH PATIENT RIGHTS:STAFF GENDER TELECONFERENCED
Heard & Held
+ SB 101 GUARDIANSHIP AND CONSERVATORS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
SENATE BILL NO. 101                                                                                                           
                                                                                                                                
     "An Act relating to private professional conservators                                                                      
     and private and public guardians."                                                                                         
                                                                                                                                
9:44:24 AM                                                                                                                    
                                                                                                                                
DANA OWEN, STAFF TO SENATOR ELLIS  AND STAFF TO THE LABOR AND                                                                   
COMMERCE COMMITTEE, provided an  overview commenting that the                                                                   
Labor and Commerce  Committee introduced this  bill on behalf                                                                   
of the Office  of Public Advocacy. He deferred  to Josh Fink,                                                                   
from  the Office  of Public  Advocacy to  provide the  larger                                                                   
overview of  the bill. Mr. Owen  described the intent  of the                                                                   
bill  to encourage  more private  professional guardians  and                                                                   
conservators and  to insure these individuals  are adequately                                                                   
and appropriately  licensed. The bill  has been heard  in the                                                                   
Labor and  Commerce Committee twice.  It was returned  to the                                                                   
Committee  to  incorporate  a rather  large  amendment.  This                                                                   
amendment is  the Uniform  Adult Guardianship and  Protective                                                                   
Proceedings Jurisdiction  Act. This  act of legislation  aims                                                                   
to  standardize  cases  and  bring   order  to  questions  of                                                                   
interstate jurisdiction.                                                                                                        
                                                                                                                                
9:46:51 AM                                                                                                                    
                                                                                                                                
JOSH FINK,  DIRECTOR, OFFICE  OF PUBLIC ADVOCACY,  DEPARTMENT                                                                   
OF  ADMINISTRATION,  presented   an  overview  of  bill.  The                                                                   
legislature enacted  HB 280  in 2004, establishing  licensure                                                                   
and regulatory  oversight of  private professional  guardians                                                                   
and conservators.  Prior to the  enactment of the  bill there                                                                   
was no state  oversight of private guardians  or conservators                                                                   
in Alaska.  This bill  corrects some unintended  consequences                                                                   
of the 2004 bill. The hope of  the licensure bill would be to                                                                   
regulate   the   profession   by   screening   more   capable                                                                   
individuals  less likely  to exploit  those whose lives  they                                                                   
assisted.   Mr.  Fink believed  the bill  would regulate  the                                                                   
formally unregulated  industry  and hopefully encourage  more                                                                   
development  of the  industry  in Alaska.  Mr. Fink  revealed                                                                   
that  the bill,  as  written, established  some  impediments,                                                                   
such  as  requiring  multiple  licenses  entering  into  this                                                                   
business.  He explained  that to  provide full  guardianship,                                                                   
four licenses  were required.  This bill eliminates  the need                                                                   
for multiple licenses and establishes  an individual license.                                                                   
Mr. Fink  informed the  Committee that  this legislation  was                                                                   
drafted  with  input  from the  Office  of  Public  Advocacy,                                                                   
Occupational Licensing  and the Alaska State  Association for                                                                   
Guardianship.  This  bill  clarifies,  in Section  2  and  4,                                                                   
criminal  convictions  that would  disqualify  an  individual                                                                   
from  obtaining a  license.  The legislation  eliminates  the                                                                   
requirement that an applicant  provide "proof of the ability"                                                                   
to be bonded and  insured. Mr. Fink pointed out  that when an                                                                   
appointment  is made, the  court can require  that a  bond be                                                                   
posted by the  private guardian or conservator  on a case-by-                                                                   
case  determination.  It  also  establishes  that  an  annual                                                                   
report  include  total  fees  collected  from  the  protected                                                                   
persons, total business expenses,  and documents necessary to                                                                   
establish the  financial solvency  of the licensee.  The bill                                                                   
also directs  that an  annual report  be submitted  to Office                                                                   
Public Advocacy rather than Occupational Licensing.                                                                             
                                                                                                                                
9:52:08 AM                                                                                                                    
                                                                                                                                
Mr.  Fink  continued  that this  legislation  clarifies  that                                                                   
Occupational Licensing  may refuse to renew  a license and/or                                                                   
take disciplinary  action  if there is  a determination  that                                                                   
the   licensee  failed   to  meet   any   of  the   licensure                                                                   
requirements listed.  The legislation further  clarifies that                                                                   
financial institutions,  regulated by the  federal government                                                                   
under  the  Alaska  Statute  Title 6,  are  exempt  from  the                                                                   
licensing  requirements.   This  legislation   requires  that                                                                   
public guardians  of the Office  of Public Advocacy  pass the                                                                   
same criminal background checks  that are required of private                                                                   
professional   guardians  and   possess  the  same   national                                                                   
certification.  Mr. Fink mentioned  that amendments  added by                                                                   
Labor  and Commerce  Committee  eliminated  the  need for  an                                                                   
expert  evaluation to  determine  whether  the respondent  is                                                                   
incapacitated  if the  respondent  agrees  to the  protective                                                                   
appointment. The court must also  make written findings if it                                                                   
appoints  someone   of  lower  priority  as   a  guardian  or                                                                   
conservator. Mr.  Fink informed the committee  that currently                                                                   
in Statute  there  is a list  for the  order of  guardianship                                                                   
appointments.  SB  101 asks  the  courts  to a  make  written                                                                   
response as  to why the  court chose to  make an "out  of the                                                                   
order" appointment.  This legislation  would also  exempt the                                                                   
respondent  from  inspection  or  copying  under  the  Public                                                                   
Records   Act  unless   the  records   are  relevant   to  an                                                                   
investigation  or formal  proceeding. Mr.  Fink related  that                                                                   
there may  be some  concern involving  the exploitation  of a                                                                   
family  member  obtaining  private information  that  is  not                                                                   
required for  them to  know. Finally a  new amendment  in the                                                                   
bill would  allow  OPA to collect  its monthly  fee from  the                                                                   
respondent  awards  funds  held  at trust  in  OPA  prior  to                                                                   
distributing   the   funds   at  the   termination   of   the                                                                   
appointment.                                                                                                                    
                                                                                                                                
9:56:14 AM                                                                                                                    
                                                                                                                                
DEBORAH BEHR,  CHIEF ASSISTANT ATTORNEY GENERAL,  LEGISLATION                                                                   
AND  REGULATION SECTION,  CIVIL DIVISION,  DEPARTMENT OF  LAW                                                                   
and UNIFORM LAW COMMISSIONERS  OF ALASKA recommended adoption                                                                   
of the Uniform  Adult Guardianship and  Protective Proceeding                                                                   
Act, Section  24 to the  end of the  bill.  This  uniform act                                                                   
has had experts for years developing  a law that works across                                                                   
state  lines  dealing  with  the   difficulties  of  multiple                                                                   
guardians residing  in different  states. This bill  makes it                                                                   
easier  and less  expensive  for the  courts  to address  the                                                                   
transfer of  guardianship of  an incapacitated adult  between                                                                   
families residing  in different states should  the particular                                                                   
need  arise. This  would require  the  courts to  communicate                                                                   
with  each other  and  determine the  best  interests of  the                                                                   
incapacitated  adult. This  bill  is supported  by AARP,  the                                                                   
Department  of  Health  and  Social  Services,  the  National                                                                   
College  of  Probate  Judges and  the  National  Guardianship                                                                   
Foundation. The  bill has no fiscal  impact for the  State of                                                                   
Alaska. Ms. Behr recommends the passage of this bill.                                                                           
                                                                                                                                
9:59:13 AM                                                                                                                    
                                                                                                                                
Senator  Thomas questioned  why this  was not  a more  simple                                                                   
issue if it involved transfer  of guardianship between family                                                                   
members in different states.                                                                                                    
                                                                                                                                
10:00:43 AM                                                                                                                   
                                                                                                                                
Ms.  Behr  responded  that  in  the  past,  guardianship  and                                                                   
conservatorship  laws  responded  to  a  time  when  families                                                                   
traveled much  less but in this  time of higher  mobility, it                                                                   
must  be addressed.  The  process can  be  expensive for  the                                                                   
family  hiring lawyers  from different  states  to deal  with                                                                   
different courts.                                                                                                               
                                                                                                                                
Senator  Elton  inquired  about   how  the  criminal  history                                                                   
component  was   performed.  Mr.  Fink  responded   that  the                                                                   
applicant  is   required  to   submit  fingerprints   in  the                                                                   
application   process  and  the   Division  of   Occupational                                                                   
Licensing runs a  criminal history check to  confirm if there                                                                   
was a  criminal history  within  the prior  ten years of  the                                                                   
application. Senator Elton asked  who pays for the background                                                                   
check. Mr. Fink  responded that an application  fee, paid for                                                                   
by  the  applicant, covers  the  criminal  background  check.                                                                   
Senator Elton  inquired why  a private professional  guardian                                                                   
must be  licensed but an  appointed public guardian  or staff                                                                   
person, in Section 22, p. 10-11,  has a year before they must                                                                   
apply for  and receive certification.  He inquired  why there                                                                   
would be different criteria for  a private individual and for                                                                   
someone  who  works  for  OPA. Mr.  Fink  responded  that  an                                                                   
individual working  for OPA will  be supervised  and mentored                                                                   
for the year before they are certified.                                                                                         
                                                                                                                                
10:04:10 AM                                                                                                                   
                                                                                                                                
Senator Elton  indicated that on  page 20 it talks  about the                                                                   
registration  of guardianship  orders  and protective  orders                                                                   
between the different courts.  He asked for an explanation on                                                                   
how bonding works.  Senator Elton used the example  that if a                                                                   
guardian  who  is  appointed in  another  state  applies  for                                                                   
jurisdiction  within  Alaska,   could  the  State  of  Alaska                                                                   
require a bond of that person  or would that be the privilege                                                                   
of the originating court.                                                                                                       
                                                                                                                                
Ms.  Behr responded  that  if the  courts  decided where  the                                                                   
individual should  be, the other state guardianship  would be                                                                   
registered in the  original home place of the  individual and                                                                   
the other  court would  monitor any  transactions and  follow                                                                   
that state's law.                                                                                                               
                                                                                                                                
Senator  Elton clarified  that  it is  the originating  court                                                                   
that applied  the standards  that the  guardian must  follow.                                                                   
Ms.  Behr  affirmed  that  this  bill  does  not  change  the                                                                   
guardianship standards requirements  of being a guardian that                                                                   
is monitored by the other state.                                                                                                
                                                                                                                                
10:05:52 AM                                                                                                                   
                                                                                                                                
Senator  Dyson commented  on being encouraged  that this  was                                                                   
being  patterned on  the Uniform  Child Custody  Jurisdiction                                                                   
Act. The  transitory nature of  the Alaskan population  makes                                                                   
it important  that  mutually respected  procedures exist  for                                                                   
cross  jurisdictional issues.  He encouraged  the passage  of                                                                   
this bill.                                                                                                                      
                                                                                                                                
10:07:12 AM                                                                                                                   
                                                                                                                                
PAT LUBY, ADVOCACY  DIRECTOR, AARP, ANCHORAGE,  considered SB
8 to  be  excellent and  needed legislation  from a  consumer                                                                   
perspective. He maintained that  the growing older population                                                                   
in  Alaska  makes it  important  for  the State  to  exercise                                                                   
oversight over what will only become an expanding                                                                               
guardianship issue. The AARP encouraged support of this                                                                         
bill.                                                                                                                           
                                                                                                                                
10:08:06 AM                                                                                                                   
                                                                                                                                
SB 101 was heard and HELD in Committee for further                                                                              
consideration.                                                                                                                  
                                                                                                                                

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