Legislature(2007 - 2008)BELTZ 211
04/07/2008 02:15 PM JUDICIARY
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CSHB 196(JUD) - HANDLING MATTERS AFTER A PERSON'S DEATH CHAIR FRENCH announced the consideration of HB 196. [The committee was working from SCS CSHB 196(L&C).] 2:27:17 PM REPRESENTATIVE JAY RAMRAS, Sponsor of HB 196, said this legislation updates the statutes on wills and addresses the subject of anatomical gifts JANE PIERSON, Staff to Representative Ramras, explained that the estate portion of HB 196 is in Sections 1-5 and Section 37. It provides a penalty clause for contesting a will or instituting other proceedings even if there is probable cause, which is in alignment with provisions in revocable trusts. Also, it amends AS 13.16.680(a) to change the statement in an affidavit to be used by a decedent's successor to collect personal property in a small estate to say that The statement says that the estate does not consist of vehicles worth more than $100,000 or personal property worth more than $100,000. The bill also lays out protections for benefits paid under life insurance and retirement plans. 2:29:22 PM MS. PIERSON highlighted an issue that the committee might wish to consider. Section 2, page 2, line 10, says that a small estate can be passed to a successor via an affidavit if the personal property is valued at less than $100,000. Initially the bill increased the amount from the current $15,000 to $25,000 and then the Senate Labor and Commerce Committee amended it to $100,000. The attorneys working on the bill believe $50,000 would be more in line with Alaska's other statute on small estate administration, which allows a short probate if the estate is less than $55,000 and assuming there is a spouse or minor children. REPRESENTATIVE RAMRAS noted that the figure was raised at the request of Senator Bunde. MS. PIERSON relayed that the trust attorneys believe this may be problematic. In the circumstance of two successors of interest, one could write an affidavit that he or she was the successor of interest and remove $100,000 from the estate. That's a lot of money that couldn't be recouped, she said. REPRESENTATIVE RAMRAS restated that all the parties worked cooperatively and they suggest that a fair accommodation is to roll the amount back to $50,000. CHAIR FRENCH flagged that as a point for further discussion and noted the individuals who would be testifying on the trust principles and the anatomical gifts. MS. PIERSON said the rest of the bill clarifies and updates statutes dealing with anatomical gifts. That portion of the bill was drafted cooperatively with the Department of Law, the Department of Health and Social Services, the Office of the State Medical Examiner, Life Alaska Donor Services, and representatives from the National Conference on Commissioners on Uniform State Laws to ensure a sound piece of legislation. The provisions are drawn from the Uniform Anatomical Gift Act (UAGA) that aims to harmonize anatomical gift laws in all 50 states. Similarly, HB 196 aims to facilitate organ and tissue donation and transplants. It removes obstacles in the donation process and hopefully it will increase participation in organ donor programs. MS PIERSON said that there have been significant changes in this field over the years and HB 196 will bring Alaska into line with these changes. Close to thirty percent of the state's population participate in the Alaska donor registry program, but more can be done. Currently in this state 180 patients are awaiting life-saving transplants and many more are awaiting tissue transplants. This bill improves the anatomical gift laws in Alaska and encourages badly needed organ donations that will save and improve lives statewide and throughout the country. 2:33:42 PM SENATOR THERRIAULT joined the meeting. REPRESENTATIVE RAMRAS added that in spite of the strides that hospitals across the state have made, Alaska currently does not have the breadth of services available to do anything but harvest organs. Alaska does have an intrastate compact with other states to accommodate organ and tissue donations, but it's important to update these laws so that Alaska conforms with other states and can continue to facilitate this life-giving service, he said. 2:36:16 PM SENATOR THERRIAULT asked if the wills and probate subcommittee of the Alaska Bar had reviewed the bill. MS. PIERSON replied it has been vetted through them. CHAIR FRENCH said that Section 1 seems to flip current law with respect to the ability of a person to challenge a will. Current law says: A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings. Under that law a person would not be penalized for challenging a will as long as there is probable cause. As currently drafted HB 196 says that the penalty clause is in effect and enforceable even if probable cause exists for instituting proceedings. He asked if that is a huge change and if it's becoming the majority rule. 2:38:20 PM ROBERT MANLEY, Attorney at Law, said he is part of the group of estate planning attorneys who work on keeping Alaska trust law current and efficient so that Alaskans can have their wishes implemented with a minimum of expense and tax cost. He explained that Section 1 brings the law governing wills into conformity with current law governing revocable trusts. Those are the two primary vehicles used in estate planning and there are various reasons for using one versus the other. Trust law currently provides that a no-contest clause is effective regardless of probable cause for bringing a challenge to the trust. CHAIR FRENCH asked if it's a uniform provision or the majority rule with respect to trusts, that you can not institute challenge proceedings penalty free if that clause is in the trust. MR. MANLEY replied he believes that from a statutory point of view it's the minority rule, and probably the minority rule from a general judicial point of view where the issue isn't specifically addressed by the statute. CHAIR FRENCH asked about the will side of the equation. MR. MANLEY explained that the will provision provides that if there is a no-contest clause and there is probable cause to bring a contest, then the penalty set forth wouldn't be effective or enforceable. A no-contest clause simply indicates that a beneficiary is provided something under a will or trust, but if the beneficiary objects to the gift or to the other provisions he or she is at risk of losing that gift. For example, if a decedent wanted to favor his children and stepchildren equally, in the absence of an effective no-contest clause, the children who might gain greater benefit if the will was ineffective could challenge the capacity of the individual making the will without any risk of loss. There may be very good reasons for excluding or favoring one person or entity over another, and without this provision it makes it too easy for the person who benefits less, to leverage the risk of litigation and the potential challenge and extract some sort of settlement. He noted that this isn't applicable with respect to spouses; they are protected under different provisions. This applies to children, shirttail relatives and the like, but if there is a true case of undue influence, then the no-contest clause is ineffective because the entire instrument is ineffective. This is simply a way for testators to preserve their plan, he said. 2:42:50 PM MR. MANLEY said that the trust provision makes Alaska a more favored jurisdiction to administer trusts. The no- contest provision was added to bring the laws governing wills into conformity with the laws governing trusts and allow people to do, with simpler les expensive wills, what they could do with trusts, he said. CHAIR FRENCH responded that that's the source of his concern. He thinks of trusts as belonging to a more sophisticated class of testators while wills fall on the lower end of the sophistication scale. This statute has been on the books for a long time and he sees probable cause as the barrier to bad challenges. If there is probable cause, he questions whether a person should be penalized for bringing a challenge. He asked how many jurisdictions have a clause that's similar to the one that's being proposed in Section 1. MR. MANLEY said he doesn't know, but he could get the information and forward it to the committee. CHAIR FRENCH said that's important to him. Alaska has adopted an aggressive set of trust laws to attract sophisticated investors nationwide, but he's had a lingering concern about this provision. MR. MANLEY observed that if Alaska laws on wills and trusts don't conform, that allows the person wishing to provide for a no-contest clause to do so by spending more money on lawyers. It doesn't seem reasonable to deny that ability to less sophisticated people, he said. Also, we usually have a good indication of what a testator or decedent wanted to do because that's what's in the trust or will. Anyone challenging that is trying to defeat their intent rather than figuring it out. CHAIR FRENCH said those are good points. Acknowledging that it's somewhat weak to make a decision by counting jurisdictions with a similar provision, he relayed that at some level he needs to know how prevalent this is in will and trust law across the country. MR. MANLEY agreed to get the information, hopefully by the end of day. 2:47:21 PM SENATOR McGUIRE said she respects the right of an individual to put what they want in their will, but there's a healthy tension in current law that allows people to challenge wills and she'd hate to quash or chill any healthy debate. CHAIR FRENCH turned to Section 2 and clarified that the suggestion that was made pertains to subparagraph (B). Current statute allows a person to use an affidavit to pass their personal property if the entire estate is worth less than $15,000. The current draft proposes that an affidavit can be used if vehicles in the estate are not worth more than $100,000 and the personal property does not exceed $100,000. The suggestion was to reduce the value of the personal property to not exceed $50,000. MS. PIERSON agreed that was the suggestion. CHAIR FRENCH asked for an explanation for keeping the total value of vehicles at $100,000 and dropping personal property to $50,000. REPRESENTATIVE RAMRAS commented that this accommodates motor homes and campers. MS. PIERSON added that vehicles are titled and won't be dissipated. CHAIR FRENCH moved Amendment 1. AMENDMENT 1 Page 2, line 10 following "exceed" Delete "$100,000" Insert "$50,000" SENATOR McGUIRE objected for discussion purposes. She asked what year the underlying statute was crafted that came to the $15,000 figure. MS. PIERSON replied she isn't sure, but believes it was in the '60s. MR. MANLEY clarified that in 1962 the amount was $6,000 and in 1984 it was adjusted to $15,000. SENATOR McGUIRE removed her objection and said that this is a good provision; probate can be onerous. CHAIR FRENCH announced that without objection Amendment 1 is adopted. CHAIR FRENCH turned to the anatomical gift portion of the bill beginning with Section 5 and asked Mr. Geraghty to explain those provisions. MICHAEL C. GERAGHTY, Attorney at Law, and State Law Commissioner to the National Conference of Commissioners on Uniform State Laws (NCCUSL), explained that NCCUSL drafts appropriate uniform legislation for consideration by the 50 states. One area NCCUSL has worked is organ donation. The original Uniform Anatomical Gift Act was promulgated by the NCCUSL in 1968 and quickly enacted by all 50 states and the District of Columbia. Minor revisions were made in 1957 and those were adopted in 26 states. The current revisions found in HB 196 bring the original act up to date with the advances in medical technology, the widespread use of electronic records, and evolving practices in transplantation. HB 196 is the revised Uniform Anatomical Gift Act. It was promulgated in 2006 and has already been adopted in over 20 states. Because it's very common for a decedent, the donor, and the donor's family to be in different states, this is an area where uniformity is critical. 2:54:27 PM MR. GERAGHTY explained that the revised act strengthens the first-person consent to make a donation of an individual's organs, eyes and tissue to bar others from amending or revoking a gift made by the donor. Likewise, the revised act strengthens the provision of a person who refuses to donate and prevents others from interfering. Absent first- person consent, gifts by family members and agents are facilitated if the deceased hasn't acted to make or refused to make an anatomical gift. This is done by expanding the roster of people who can make a gift on that person's behalf to include a health-care agent, a grandchild or another family member who has exhibited special care. Also, it clarifies the manner in which the consent must be obtained in those circumstances. Gifts on donor registries and state-issued identification cards are specifically authorized under HB 196, registries are encouraged, and standards are provided for their operation. Alaska has a donor program through the division of motor vehicles (DMV) and it's been very successful. Finally, it provides for coordination between procurement organizations and medical examiners, particularly with regard to procuring organs and tissue from donors under the jurisdiction of the medical examiner. Doctors Butler and Fallico went over the changes and at their suggestion some minor tweaks were made, he said. The goal, of course, is to expand the opportunity for gifts of organs and tissue to be taken from donors. MR. GERAGHTY said the revised act, which is embodied in HB 196, is endorsed by the American Medical Society, the American Bar Association, the American Academy of Ophthalmology, the American Association of Tissue Banks, the American Society of Cataract and Refractive Surgery, the Association of Organ Procurement Organizations, the federal Health and Human Services Advisory Committee on Organ Transplantation, the Cornea Society, and the Eye Bank Association of America. He encouraged the committee to act on HB 196 and join the other states that have adopted the revised Uniform Anatomical Gift Act. 2:57:31 PM CHAIR FRENCH commented that it gives him some comfort that the doctors and lawyers are in agreement on the bill. He asked if the model provisions begin in Section 18 and go on for several sections. MR. GERAGHTY said that's right. CHAIR FRENCH asked if the small tweaks that the doctors suggested are in preceding sections where references are inserted in statute to those model provisions. For example, Section 6 takes up a DMV statute. MR. GERAGHTY replied that's where some of the changes occur, but the major changes occur on page 18, Sec. 13.52.255 - Cooperation between coroner, state medical examiner, and procurement organization. Although based on the model act some accommodations were made to acknowledge the vast jurisdiction of the medical examiner and the limitations on his services. Those minor changes were reviewed by and agreed upon by the National Conference of Commissioners and the original drafters. 2:59:49 PM SHERRY BADILLO-MARINO (ph), Life Alaska Volunteer, said she's a donor mom; her 17-year-old daughter died in an auto accident in 2003 while on her way to work. She became a tissue, heart valve, skin, and bone donor and has helped 48 people across the country, including a six-year-old boy and a 65-year-old woman. Her heart valve will become lifesaving to either an infant or young child, her skin has been used in burn and reconstructive surgeries, her bone and tissue could used be in joint and back surgeries. She referenced a poem her daughter wrote when she was 12 called, "Cherish the Moments" that speaks about living every moment to its fullest and not taking anyone in you life for granted. You never know when someone will be gone and you'll never be able to relive a moment that's passed. When Life Alaska called and asked about tissue and organ donation, she didn't hesitate because she knew that's what her daughter would want. "That is part of why I continually offer to help and to encourage others to consider tissue and organ donation, because it has helped me and her sister immensely to move forward," she said. MS. BADILLO-MARINO said she and her daughter had never discussed becoming a donor, but after her death she found a signed tissue and organ donation card in her room. As a grieving mother that solidified the decision she had already made for her daughter to become a tissue and organ donor. In her heart she knew she'd done the right thing and that's part of what she says to everyone she contacts. "Share your wishes with your family." She relayed that her father was so proud of his granddaughter and the fact that she became a tissue donor, that he changed his stand and become a donor as well. He is now helping others along with his granddaughter, she said. 3:06:06 PM CHAIR FRENCH thanked her for her very moving testimony. Finding no one else who wished to testify on behalf of HB 196, he closed public testimony. SENATOR McGUIRE said we spend time in these meetings and you wonder if anything you do makes a difference. This is one of the circumstances that makes her think it does. She reminded the committee that 2004 she sponsored a bill that created the Alaska donor registry. At that time she thought it was something that would make a difference, but it's overwhelming to see that over 330,000 Alaskans have joined and between 800 and 1,000 new registrants are added each week. She described HB 196 as a step to continue those efforts, and then declared a conflict and asked to refrain from voting on the bill. her father is the founder and chair of Life Alaska Donation Services, one of the groups supporting this bill. CHAIR FRENCH noted her conflict and said that while the meeting is in recess he'd find out if that's in order. He thanked the sponsor for accommodating two bills into one and set HB 196 aside. CSHB 196(JUD)-HANDLING MATTERS AFTER A PERSON'S DEATH CHAIR FRENCH announced the consideration of HB 196. [Before the committee was CSHB 196(JUD).] He said he understands that the sponsor and the interested parties are willing to drop Section 1. JANE PIERSON, Staff to Representative Jay Ramras, sponsor of HB 196, said that's correct. CHAIR FRENCH moved Amendment 2. AMENDMENT 2 Page 1, lines 6-10 Delete all material Renumber sections accordingly. CHAIR FRENCH, hearing and seeing no objection, announced that Amendment 2 is adopted. 4:58:08 PM SENATOR THERRIAULT asked what Amendment 1 was. CHAIR FRENCH replied Amendment 1 changed on page 2, line 10, $100,000 to $50,000. SENATOR McGUIRE motioned to report SCS CSHB 196, as amended today, from committee with individual recommendations and attached fiscal note(s). CHAIR FRENCH announced that without objection, SCS CSHB 196(JUD) is moved from the Senate Judiciary Committee. SENATOR McGUIRE moved the Senate concurrent title resolution to accompany HB 196 from the Senate Judiciary Committee. There being no objection, it was so ordered.