Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/21/2011 01:30 PM JUDICIARY


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 86 PROTECTION OF VULNERABLE ADULTS/MINORS TELECONFERENCED
Heard & Held
+ SB 17 SYNTHETIC CANNABINOIDS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
         SB  86-PROTECTION OF VULNERABLE ADULTS/MINORS                                                                      
                                                                                                                                
1:31:27 PM                                                                                                                    
CHAIR FRENCH  announced the  consideration of  SB 86  relating to                                                               
the protection of vulnerable adults and minors.                                                                                 
                                                                                                                                
1:32:08 PM                                                                                                                    
DUANE  MAYES,  Director,  Division  of  Senior  and  Disabilities                                                               
Services  (DSDS),  Department  of   Health  and  Social  Services                                                               
(DHSS), said  SB 86 will  strengthen Alaska laws and  address the                                                               
growing  problem of  financial  exploitation of  the elderly  and                                                               
other vulnerable  people. He noted  that the Department  of Labor                                                               
and Workforce Development estimates  that Alaska's 50,000 seniors                                                               
will likely number 80,000 by 2017.                                                                                              
                                                                                                                                
SB 86  has two components.  First is a  temporary conservatorship                                                               
procedure  that  will  work  much   the  same  as  the  temporary                                                               
guardianship   procedure  that   is  already   in  statute.   The                                                               
vulnerable   victim   will   retain  autonomy   while   receiving                                                               
assistance. Second is  the ex parte relief  from fraud procedure,                                                               
which is  similar to existing  domestic violence  protection law.                                                               
This  will  allow  vulnerable   adults  to  independently  obtain                                                               
straightforward, expedited relief from a magistrate or judge.                                                                   
                                                                                                                                
This bill  will amend the  adult protective services  statutes to                                                               
enhance  DHSS's investigatory  authority and  expand the  list of                                                               
mandatory  reporters to  include employees  of nursing  homes. It                                                               
will add  the concept of undue  influence when a person  of trust                                                               
uses their  role to  exploit and gain  control over  a vulnerable                                                               
adult,  and it  will enhance  penalties in  criminal cases  where                                                               
there is abuse of an elderly victim.                                                                                            
                                                                                                                                
1:37:57 PM                                                                                                                    
KELLY  HENRIKSEN,  Assistant  Attorney General,  Civil  Division,                                                               
Human  Services  Section,  Department  of  Law  (DOL),  said  she                                                               
represents the Department of Health  and Social Services. In this                                                               
role  she does  guardianships and  conservatorships in  Southeast                                                               
Alaska when Adult Protective Services brings a petition.                                                                        
                                                                                                                                
CHAIR FRENCH asked her to  explain the basic difference between a                                                               
guardianship and a conservatorship.                                                                                             
                                                                                                                                
MS. HENRIKSEN explained  that a guardianship is  basically what a                                                               
parent would be for a child.  They do things to protect the well-                                                               
being  and  welfare  of  a   person  in  terms  of  health  care,                                                               
transportation,  and   appointments,  although  it   can  include                                                               
finances.  A conservator  is strictly  financial  and deals  with                                                               
assets  and property.  She agreed  with Senator  French that  the                                                               
guardianship  covers   a  broader  panoply  of   needs  than  the                                                               
conservatorship.                                                                                                                
                                                                                                                                
MS. HENRIKSEN said  the bill has three main parts.  The first has                                                               
the  provisions  that  deal with  temporary  conservatorship  and                                                               
financial  protective  orders.  The   second  part  includes  new                                                               
criminal   provisions   when   somebody  violates   a   financial                                                               
protective  order. The  third part  clarifies and  augments Adult                                                               
Protective  Services powers  in Title  47. Basically,  the phrase                                                               
"undue influence" has  been added in all the  different places in                                                               
Title 47  where "vulnerable adult"  is described to  clarify that                                                               
this is another way that a person can be made vulnerable.                                                                       
                                                                                                                                
1:40:33 PM                                                                                                                    
MS. HENRIKSEN provided the following sectional analysis:                                                                        
                                                                                                                                
Section 1  makes a  knowing violation  of a  financial protective                                                               
order a crime.                                                                                                                  
                                                                                                                                
Section  2  amends the  definition  of  protective orders  in  AS                                                               
11.56.740  to  include  financial protective  orders.  These  are                                                               
criminal provisions.                                                                                                            
                                                                                                                                
Section 3 makes the fact  that a defendant would knowingly direct                                                               
criminal  conduct at  a person  age  65 or  older an  aggravating                                                               
factor at sentencing.                                                                                                           
                                                                                                                                
Section 4 adds being a victim  of fraud as a basis for appointing                                                               
a conservator by amending AS  13.26.165(2)(a). Two standards must                                                               
be met for a conservator to  be appointed. First, there has to be                                                               
some reason  why a  person is being  exploited. Second,  a person                                                               
has to  be in danger of  having some of their  property wasted or                                                               
dissipated. Being  a victim of  fraud doesn't mean that  a person                                                               
necessarily suffers from some mental or physical deficiency.                                                                    
                                                                                                                                
CHAIR FRENCH asked if Section 4  is describing a court process by                                                               
which a conservator is appointed.                                                                                               
                                                                                                                                
MS.  HENRIKSEN agreed  that this  section sets  out the  standard                                                               
that needs to be met in  order to have a conservator appointed by                                                               
the court.                                                                                                                      
                                                                                                                                
CHAIR FRENCH  reviewed the reasons  that a court would  appoint a                                                               
conservator starting on page 2  and opined that adding "fraud" as                                                               
a  reason seems  unusual because  there  is no  showing that  the                                                               
person is in any way disabled. He  asked if the intent is to give                                                               
the court the  ability to use the power to  appoint a conservator                                                               
in that circumstance.                                                                                                           
                                                                                                                                
MS.  HENRIKSEN  said  yes;  there  are more  and  more  cases  of                                                               
individuals, usually  older individuals, who don't  have a mental                                                               
or  physical  deficiency,  but   somebody  is  tricking  them  or                                                               
cheating  them or  using  undue influence.  These  people are  in                                                               
effect perpetrating a  fraud and the victim  doesn't realize that                                                               
it's  happening. The  Office of  Public  Advocacy suggested  this                                                               
addition and APS is fully supportive.                                                                                           
                                                                                                                                
CHAIR  FRENCH  asked  if  the person  being  defrauded  would  be                                                               
present at the hearing.                                                                                                         
                                                                                                                                
MS. HENRIKSEN  answered that would  typically be the  case unless                                                               
there is a physical reason for not attending.                                                                                   
                                                                                                                                
CHAIR FRENCH asked if it would  be dispositive if the person said                                                               
he or she did not want the conservatorship.                                                                                     
                                                                                                                                
MS.  HENRIKSEN replied  the court  oftentimes will  have colloquy                                                               
with  the   respondent  to  gauge   whether  the   person  really                                                               
understands.                                                                                                                    
                                                                                                                                
1:46:03 PM                                                                                                                    
SENATOR PASKVAN asked if these  cases are typically one-on-one or                                                               
if a class of elderly is targeted.                                                                                              
                                                                                                                                
MS. HENRIKSEN  replied it's typically  one-on-one and  more often                                                               
than not  it's a family member  who is perpetrating the  fraud or                                                               
exerting undue influence. She cited  examples of fraudulent calls                                                               
from Jamaica, supposedly from family members.                                                                                   
                                                                                                                                
SENATOR PASKVAN  asked if Alaska's  criminal laws  segregate this                                                               
type of fraudulent activity.                                                                                                    
                                                                                                                                
MS.  HENRIKSEN said  she didn't  know other  than what  this bill                                                               
adds. Both  the FBI and  the police  were alerted in  the Jamaica                                                               
fraud and neither could do anything.                                                                                            
                                                                                                                                
SENATOR  COGHILL asked  if proceedings  to appoint  a conservator                                                               
could commence based solely on adding fraud to section .165.                                                                    
                                                                                                                                
MS. HENRIKSEN said that's correct.                                                                                              
                                                                                                                                
1:48:33 PM                                                                                                                    
Section  5  adds attorneys,  caregivers,  and  the Department  of                                                               
Health and  Social Services (DHSS)  as entities who  may petition                                                               
for conservatorship for an individual.                                                                                          
                                                                                                                                
Section 6 creates  a procedure for requesting  the appointment of                                                               
a  temporary conservator  just  like  the guardianship  statutes.                                                               
This would be used when a  petition for a regular conservator was                                                               
pending.                                                                                                                        
                                                                                                                                
Section  7  adds  two  new  statutes to  deal  with  a  temporary                                                               
conservator.  The   first  provides   the  statutory   basis  for                                                               
temporary  conservators  to  protect  the victims  of  fraud  and                                                               
financial abuse  and to  ensure that funds  are obtained  to meet                                                               
the needs of the respondent and their dependents.                                                                               
                                                                                                                                
1:49:55 PM                                                                                                                    
CHAIR  FRENCH  asked   if  Section  4  deals   with  a  temporary                                                               
conservatorship or a regular, permanent conservatorship.                                                                        
                                                                                                                                
MS. HENRIKSEN replied it's about either one.                                                                                    
                                                                                                                                
CHAIR FRENCH asked if there's a definition for "temporary."                                                                     
                                                                                                                                
MS.  HENRIKSEN  explained  that   this  tracks  the  guardianship                                                               
language  so  it  will  last until  a  permanent  conservator  is                                                               
appointed or the petition in dismissed.                                                                                         
                                                                                                                                
SENATOR  PASKVAN  asked what  standard  the  judge follows  under                                                               
either the temporary or permanent conservator.                                                                                  
                                                                                                                                
MS. HENRIKSEN  said she  believes it's  the clear  and convincing                                                               
evidence standard just as it  is for guardianships, but she would                                                               
find out.                                                                                                                       
                                                                                                                                
SENATOR COGHILL asked who is present at the 72 hour hearing.                                                                    
                                                                                                                                
MS.   HENRIKSEN   replied   the  petitioner,   the   petitioner's                                                               
attorneys,  the respondent,  the  respondent's  attorney, and  if                                                               
there's an allegation  of incapacity it's possible  that a doctor                                                               
would attend.  Oftentimes family members  are there as  well. The                                                               
notice requirements for a temporary  conservator aren't as strict                                                               
as those for a regular, permanent conservator.                                                                                  
                                                                                                                                
SENATOR COGHILL said he pays  attention to this because he's seen                                                               
instances  where  people weren't  included  due  to oversight  or                                                               
deliberate action.                                                                                                              
                                                                                                                                
MS. HENRIKSEN  said her experience  has been that the  court will                                                               
not proceed  if it's  apparent that the  respondent hasn't  had a                                                               
chance to talk to an attorney.                                                                                                  
                                                                                                                                
1:53:07 PM                                                                                                                    
The second part of Section  7 establishes a process for obtaining                                                               
a  financial  protective  order  to  immediately  stop  suspected                                                               
financial   abuse.  It   is  modeled   after  domestic   violence                                                               
protective orders.  A person may  directly petition the  court to                                                               
obtain  a 20-day  ex parte  protective  order. This  can be  done                                                               
without giving  notice to the  person the petitioner  believes is                                                               
defrauding  or financially  harming  him or  her. The  protective                                                               
order may  be extended up to  six months, but this  requires both                                                               
notice  and a  hearing. It's  a probable  cause standard  and the                                                               
petitioner must show he or she  has been defrauded and that there                                                               
will be an  immediate wasting or dissipation of  their assets. In                                                               
that sense  it tracks the regular  conservatorship legal standard                                                               
requirements.                                                                                                                   
                                                                                                                                
CHAIR  FRENCH  asked if  other  states  use ex  parte  protective                                                               
orders for matters of financial loss and fraud.                                                                                 
                                                                                                                                
MS.  HENRIKSEN  deferred the  question  to  Mr. Sterling  or  Ms.                                                               
Russo.                                                                                                                          
                                                                                                                                
1:55:07 PM                                                                                                                    
ELIZABETH  RUSSO,  Supervising  Attorney, Civil  Section,  Public                                                               
Guardian,    Office   of    Public   Advocacy,    Department   of                                                               
Administration (DOA),  said she  believes that other  states have                                                               
ex  parte protective  orders for  financial loss  and fraud.  She                                                               
deferred to Mr. Sterling as to which states do this.                                                                            
                                                                                                                                
CHAIR FRENCH deferred the question until Mr. Sterling testified.                                                                
                                                                                                                                
SENATOR  COGHILL  reviewed  the proposed  Sec.  13.26.209(a)  and                                                               
filing a  protective order  under AS  13.26.180(a) and  said he's                                                               
trying to figure out the  circumstances under which this could be                                                               
misused.                                                                                                                        
                                                                                                                                
CHAIR FRENCH asked  if the department could file for  an ex parte                                                               
order.                                                                                                                          
                                                                                                                                
MS. HENRIKSEN answered yes.                                                                                                     
                                                                                                                                
CHAIR  FRENCH  added that  it  could  be  a police  detective  or                                                               
someone  who  is   aware  of  fraud  being   perpetrated  in  the                                                               
community.                                                                                                                      
                                                                                                                                
MS. HENRIKSEN agreed.                                                                                                           
                                                                                                                                
SENATOR COGHILL reiterated  that he was trying to  figure out how                                                               
this could be misused.                                                                                                          
                                                                                                                                
CHAIR  FRENCH said  it will  be  brought into  sharper relief  in                                                               
later sections.                                                                                                                 
                                                                                                                                
1:57:16 PM                                                                                                                    
MS. HENRIKSEN continued the sectional analysis.                                                                                 
                                                                                                                                
Section  8 adds  a  definition of  fraud  to the  conservatorship                                                               
statutes. It's the same definition  that's in the Office of Elder                                                               
Fraud and Assistance statutes.                                                                                                  
                                                                                                                                
Section 9 excludes the crime  of violating a financial protective                                                               
order from the crimes that are subject to warrantless arrest.                                                                   
                                                                                                                                
Sections  10  and  11  add financial  protective  orders  to  the                                                               
registry  of protective  orders maintained  by the  Department of                                                               
Public Safety (DPS) and updated by law enforcement officers.                                                                    
                                                                                                                                
Section 12  adds the concept  of undue  influence to the  list of                                                               
reportable harms  to a vulnerable  adult. It also  adds employees                                                               
of nursing homes, residential care  or health care facilities and                                                               
the staff  of educational institutions  to the list of  those who                                                               
are mandated reporters.                                                                                                         
                                                                                                                                
Section  13 clarifies  what  information may  be  contained in  a                                                               
report  of  harm to  include  contact  information regarding  the                                                               
vulnerable   adult   [and   information   regarding   any   undue                                                               
influence.]                                                                                                                     
                                                                                                                                
Section  14 adds  "undue  influence" to  the  list of  reportable                                                               
harms that  subject a reporter  to a  class B misdemeanor  if not                                                               
reported.                                                                                                                       
                                                                                                                                
Section  15 adds  "undue  influence" to  the  list of  reportable                                                               
harms and clarifies  that a mandatory reporter  is not prohibited                                                               
from reporting  harm in their non-occupational  capacity. It also                                                               
clarifies that  no person is  prohibited from making a  report of                                                               
harm. This  language comes from  the Office of  Children Services                                                               
statutes.                                                                                                                       
                                                                                                                                
Section   16  requires   mandated   reporters   to  contact   law                                                               
enforcement  in  situations  where they  believe  the  vulnerable                                                               
adult is at imminent risk of  serious physical harm and it is not                                                               
possible to  contact the department.  "Undue influence"  is added                                                               
to  the  list  of  reportable  harms.  Law  enforcement  is  then                                                               
required  to  contact  DHSS  within 24  hours  of  receiving  the                                                               
report.                                                                                                                         
                                                                                                                                
2:00:38 PM                                                                                                                    
SENATOR COGHILL  said he understands  that a class  B misdemeanor                                                               
is attached to  a mandatory reporter, but  he'd like confirmation                                                               
there no penalty is attached to the timeliness provision.                                                                       
                                                                                                                                
MS. HENRIKSEN  said she  believes that's  correct, but  she would                                                               
follow up.                                                                                                                      
                                                                                                                                
CHAIR  FRENCH  said it's  interesting  because  page 9,  line  5,                                                               
changes the requirement to report  from "may" to "shall" and that                                                               
implies some sort of consequence.                                                                                               
                                                                                                                                
MS. HENRIKSEN reiterated that she would follow up.                                                                              
                                                                                                                                
2:01:39 PM                                                                                                                    
Section 17 adds  "undue influence" and "abandonment"  to the list                                                               
of  harms  that can  be  reported  regarding a  vulnerable  adult                                                               
residing in an out-of-home care  facility. Reporting to the long-                                                               
term care ombudsman satisfies the reporting requirement.                                                                        
                                                                                                                                
Section  18 adds  two new  subsections. The  first states  that a                                                               
mandatory reporter  is not relieved  of the obligation  to report                                                               
to DHSS  by reporting  to their  supervisor or  another employee.                                                               
The  second  subsection  makes an  individual  who  willfully  or                                                               
recklessly makes a false report liable for civil damages.                                                                       
                                                                                                                                
CHAIR FRENCH commented that some  of these provisions should have                                                               
delayed effective  dates to allow  time for the department  to do                                                               
training and get the word out.                                                                                                  
                                                                                                                                
SENATOR  PASKVAN  referenced subsection  (j)  in  Section 18  and                                                               
asked if  the intent is that  there be actual damages  as opposed                                                               
to nominal  damages. He  opined that you  would want  someone who                                                               
recklessly files a false report to  be liable at least in nominal                                                               
damages to the person that needs protection.                                                                                    
                                                                                                                                
MS. HENRIKSEN asked if that's a suggestion.                                                                                     
                                                                                                                                
SENATOR PASKVAN  replied he was  trying to figure out  if anybody                                                               
through  about that.  Now  a person  gets away  with  it if  they                                                               
recklessly  file  a  false  report  and  no  actual  damages  are                                                               
suffered.                                                                                                                       
                                                                                                                                
MS. HENRIKSEN said she didn't  recall a discussion on that point,                                                               
but she'd be happy to discuss it further.                                                                                       
                                                                                                                                
SENATOR  COGHILL pointed  out inconsistencies  between subsection                                                               
(i) in Section 18 and subsection  (b) in Section 13, both dealing                                                               
with  Title 47.  On  the one  hand the  reporter  is held  highly                                                               
accountable  and  on  the other  they're  given  anonymity  under                                                               
subsection (b).                                                                                                                 
                                                                                                                                
MS. HENRIKSEN said  she didn't recall any  discussions about that                                                               
inconsistency when the bill was  drafted about two years ago, but                                                               
she would follow up with an answer.                                                                                             
                                                                                                                                
2:05:20 PM                                                                                                                    
MS. HENRIKSEN continued the sectional analysis.                                                                                 
                                                                                                                                
Section  19 adds  "undue  influence" to  the  list of  reportable                                                               
harms to the  section regarding adults who are not  in an out-of-                                                               
home care facility.                                                                                                             
                                                                                                                                
Section  20 adds  "undue  influence" to  the  list of  reportable                                                               
harms  DHSS  is   required  to  investigate  when   there  is  an                                                               
individual who is under 60 years  of age living in an out-of-home                                                               
facility.  The long-term  care ombudsman  will  deal with  people                                                               
over age 60 and APS will take on those under age 60.                                                                            
                                                                                                                                
Section  21 clarifies  that  the long  term  care ombudsman  must                                                               
provide the  results of his  or her actions or  investigations to                                                               
the  office  of  the  department that  handles  adult  protective                                                               
services.                                                                                                                       
                                                                                                                                
Section  22 adds  "undue  influence" to  the  list of  reportable                                                               
harms included in the reports sent  to the department by the long                                                               
term care ombudsman. It clarifies  that these reports are sent to                                                               
the  office  of  the  department that  handles  adult  protective                                                               
services.                                                                                                                       
                                                                                                                                
Section  23 adds  "undue  influence" to  the  list of  reportable                                                               
harms the department is required to investigate.                                                                                
                                                                                                                                
Section 24 adds  "undue influence" to the list  of reported harms                                                               
that applies  to an alleged  perpetrator when the  perpetrator is                                                               
the one requesting that APS  not investigate further. Someone who                                                               
is  capacitated may  ask APS  to stop  an investigation  and they                                                               
have to  honor the request,  but they don't  have to stop  if the                                                               
person isn't capacitated.  Likewise, APS doesn't have  to stop an                                                               
investigation at  a caregiver's request  if the caregiver  is the                                                               
alleged perpetrator of the harm.                                                                                                
                                                                                                                                
CHAIR FRENCH asked who makes the capacity decision.                                                                             
                                                                                                                                
MS. HENRIKSEN replied  initially it would be APS,  but that could                                                               
be litigated if the case goes to court.                                                                                         
                                                                                                                                
2:07:48 PM                                                                                                                    
Section 25 adds seven new  subsections dealing with the powers of                                                               
ASP to investigate reports of harm.                                                                                             
   · Subsection (h) requires individuals and entities to provide                                                                
     the department access to health and financial records of a                                                                 
     vulnerable adult as part of its investigation.                                                                             
   · Subsection (i) prohibits anyone from interfering in an                                                                     
     investigation.                                                                                                             
   · Subsection (j) allows the department to file an ex parte                                                                   
     order for access to records  if necessary if no petition for                                                               
     guardianship or conservatorship has been filed.                                                                            
   · Subsection (k) allows adult protective services access to                                                                  
     any  departmental information  necessary  to  assist in  the                                                               
     case.   This   language  and   the   idea   came  from   the                                                               
     certification  in  the  licensing statutes.  It's  to  avoid                                                               
     problems  with  getting  confidential information  from  the                                                               
     different offices and divisions within the department.                                                                     
   · Subsection (l) allows the department to audio or video tape                                                                
     an interview  of a vulnerable  adult with their  consent and                                                               
     if they  are not incapacitated.  If they lack  capacity, the                                                               
     department may not do this.                                                                                                
   · Subsection (m) requires the department to provide training                                                                 
     to investigators.                                                                                                          
   · Subsection (n) defines "financial records" that pertain to                                                                 
     a  vulnerable  adult but  that  are  held  by some  sort  of                                                               
     fiduciary.                                                                                                                 
                                                                                                                                
CHAIR FRENCH  asked if  filing an  ex parte  order for  access to                                                               
records is the same as an application for a subpoena.                                                                           
                                                                                                                                
MS. HENRIKSEN explained that she  took this route because a court                                                               
order carries  more weight  in terms  of getting  institutions to                                                               
honor a request for records. Certainly  in the age of HIPAA folks                                                               
are slow  to give health  records and financial  institutions are                                                               
equally reluctant because of their own rules and regulations.                                                                   
                                                                                                                                
CHAIR  FRENCH asked  what  happens if  the  individual or  entity                                                               
doesn't comply with the "shall" language.                                                                                       
                                                                                                                                
MS. HENRIKSEN explained  that she wanted the  "shall" language to                                                               
show that the request isn't  discretionary; she would go to court                                                               
to get an order if the request was ignored.                                                                                     
                                                                                                                                
SENATOR  PASKVAN asked  if there  would be  a formed  document so                                                               
that the court's order complies with HIPAA.                                                                                     
                                                                                                                                
MS. HENRIKSEN said  she is the HIPAA attorney  for the Department                                                               
of Law  (DOL) and  she would  be happy to  help the  court system                                                               
develop the forms.                                                                                                              
                                                                                                                                
CHAIR  FRENCH noted  that he  read that  the intent  was to  work                                                               
toward developing the forms.                                                                                                    
                                                                                                                                
MS. HENRIKSEN agreed.                                                                                                           
                                                                                                                                
2:12:04 PM                                                                                                                    
Section 26  adds an attorney-in-fact,  trustee, or  surrogate for                                                               
health care  decisions as  persons who may  serve as  a surrogate                                                               
decision maker  for the purpose  of consenting to the  receipt of                                                               
protective  services   for  a  vulnerable  adult.   This  updates                                                               
existing statutory  language under  Title 47. [This  section also                                                               
deletes  the requirement  that  in order  for a  spouse  to be  a                                                               
surrogate  decision maker,  the spouse  and vulnerable  adult may                                                               
not be living in separate domiciles.]                                                                                           
                                                                                                                                
SENATOR COGHILL asked if a  surrogate is someone like himself who                                                               
acts on his dad's behalf without having power of attorney.                                                                      
                                                                                                                                
MS. HENRIKSEN  said yes; it's  someone who is acting  for another                                                               
person without having signed an  official document. A health care                                                               
power of attorney includes that  same kind of provision where you                                                               
can give somebody your health care  power of attorney but you can                                                               
also appoint  somebody to  be your  surrogate decision  maker for                                                               
health care decisions.                                                                                                          
                                                                                                                                
SENATOR COGHILL  asked for confirmation  that it's  not something                                                               
that's generally assumed, for example next of kin.                                                                              
                                                                                                                                
MS. HENRIKSEN said correct;  Title 47 has a list of  who may be a                                                               
surrogate  and this  expands that  list a  little. An  APS social                                                               
worker  is  limited   to  using  that  list   when  appointing  a                                                               
surrogate.                                                                                                                      
                                                                                                                                
2:15:16 PM                                                                                                                    
Section  27  adds  an  allegation of  "undue  influence"  to  the                                                               
allegations  that  would  disqualify  an  individual  from  being                                                               
selected as a surrogate decision maker.                                                                                         
                                                                                                                                
Section 28  adds "health  care surrogate"  to the  provision that                                                               
requires  the department  to discontinue  protective services  if                                                               
the vulnerable  adult refuses services  after he or  she regained                                                               
the cognitive ability to make his or her own decisions.                                                                         
                                                                                                                                
Section  29  adds  attorney-in-fact, surrogate  for  health  care                                                               
decisions,  and trustee  as individuals  who may  consent to  the                                                               
provision of  protective services  to a  vulnerable adult  in the                                                               
existing provision  that requires  APS to provide  those services                                                               
within 10  days. [It also adds  "undue influence" to the  list of                                                               
potential reports of harm.]                                                                                                     
                                                                                                                                
Section  30 adds  family members,  trustees, and  conservators to                                                               
the  list  of  individuals  who  may be  restrained  by  a  court                                                               
injunction  from interfering  with  the  provision of  protective                                                               
services to a vulnerable adult.                                                                                                 
                                                                                                                                
Section 31 adds "undue influence"  to the types of harm contained                                                               
in  confidential  reports  and  adds   trustee  to  the  list  of                                                               
individuals who may consent to release a confidential report.                                                                   
                                                                                                                                
Section  32 clarifies  that  a person  is  not considered  unduly                                                               
influenced if  they choose to  consent to treatment  by spiritual                                                               
means only.                                                                                                                     
                                                                                                                                
Section  33  redefines  "abuse"  to  include  the  infliction  of                                                               
emotional distress or fear, including coercion and intimidation.                                                                
                                                                                                                                
Section 34  redefines "caregiver"  to include  someone who  is an                                                               
employee of a business that  provides personal care assistance in                                                               
an adult's home.                                                                                                                
                                                                                                                                
SENATOR PASKVAN returned  to Section 32 to ask  if that provision                                                               
is  for purposes  of medical  treatment as  opposed to  financial                                                               
loss.                                                                                                                           
                                                                                                                                
MS.  HENRIKSEN  said she's  always  thought  of  it in  terms  of                                                               
medical care, but she's actually  never used the provision in any                                                               
of her cases.                                                                                                                   
                                                                                                                                
SENATOR PASKVAN pointed  out that somebody could  promise to pray                                                               
for you in return for $1,000 and guarantee that you'd be healed.                                                                
                                                                                                                                
MS. HENRIKSEN  said that is  something they'd want to  target and                                                               
she  didn't  know  why  that couldn't  be  included  within  this                                                               
provision.                                                                                                                      
                                                                                                                                
SENATOR  COGHILL said  when  he  read it  he  was thinking  about                                                               
health issues  but if it  could be  financial issues he  needs to                                                               
know.                                                                                                                           
                                                                                                                                
2:19:02 PM                                                                                                                    
CHAIR FRENCH  set the issue aside  to puzzle over until  the next                                                               
hearing.                                                                                                                        
                                                                                                                                
MS. HENRIKSEN said she'd give it further thought.                                                                               
                                                                                                                                
2:19:23 PM                                                                                                                    
Section 35  defines "informed decision"  as a decision  made free                                                               
from undue influence.                                                                                                           
                                                                                                                                
Section 36 redefines  "exploitation" to include acts  by a person                                                               
in  a position  of  trust  with a  vulnerable  adult who  obtains                                                               
profit   or  advantage   through   undue  influence,   deception,                                                               
intimidation or  breach of fiduciary  duty with or  without their                                                               
consent.                                                                                                                        
                                                                                                                                
Section 37 redefines  neglect to include the  willful or reckless                                                               
failure by a caregiver to provide  access to services or to carry                                                               
out  a treatment  plan necessary  to the  health of  a recipient.                                                               
"Reckless"  is  new language  and  "essential  care services"  is                                                               
defined   as  food,   clothing,   shelter,   medical  care,   and                                                               
supervision.                                                                                                                    
                                                                                                                                
Section  38  expands the  definition  of  protective services  to                                                               
include services  that obtain basic health  care needs, financial                                                               
assistance services,  and protection from abuse,  obtaining basic                                                               
food,  shelter and  clothing, among  others.  Undue influence  is                                                               
added  to the  list  of types  of harm  that  these services  are                                                               
intended to alleviate.                                                                                                          
                                                                                                                                
Section  39  amends the  definition  of  "unable to  consent"  by                                                               
adding the  concept of "undue  influence" and that  the inability                                                               
to consent  includes a person's  inability to perceive a  loss of                                                               
income or assets, eviction, and physical or mental harm.                                                                        
                                                                                                                                
Section 40  amends the definition  of a vulnerable adult  by more                                                               
clearly   defining  what   constitutes  a   physical  or   mental                                                               
impairment.                                                                                                                     
                                                                                                                                
Section 41 adds definitions for the following terms:                                                                            
   · Deception                                                                                                                  
   · Fiduciary duty                                                                                                             
   · Financial institution                                                                                                      
   · Person who stands in a position of trust or confidence                                                                     
   · Undue influence                                                                                                            
                                                                                                                                
Sections 42 through 47 deal with changes to the uncodified law.                                                                 
                                                                                                                                
2:22:04 PM                                                                                                                    
SENATOR  COGHILL expressed  interest in  a further  discussion on                                                               
the definition of "undue influence."                                                                                            
                                                                                                                                
CHAIR  FRENCH posed  a hypothetical  situation  where one  family                                                               
member counsels  another to  go to  Mexico to  get scientifically                                                               
questionable  laetrile treatments  and asked  whether that  would                                                               
fall  under  this definition  of  "undue  influence." While  that                                                               
family  dynamic may  not be  widely embraced  and could  be total                                                               
scientific quackery,  he has questions about  suddenly giving the                                                               
department the power to intercede.                                                                                              
                                                                                                                                
MS. HENRIKSEN  said it reads  broadly, but in practice  it's very                                                               
narrow.  She welcomed  suggestions  to make  the definition  more                                                               
precise  and  targeted  and  assured  the  committee  that  Adult                                                               
Protective  Services wouldn't  step  in unless  there was  actual                                                               
harm and she wouldn't take a case  to court if it didn't pass the                                                               
legal standard.                                                                                                                 
                                                                                                                                
2:25:02 PM                                                                                                                    
SENATOR COGHILL said  his concerns were allayed  somewhat when he                                                               
realized that the person of trust had to act deceptively.                                                                       
                                                                                                                                
SENATOR  PASKVAN  said it's  one  thing  if someone  receives  no                                                               
financial benefit for trying to  get a family member to undertake                                                               
laetrile treatment,  but it's  another if  the person  receives a                                                               
kick  back. It  crosses  a  line when  the  person advancing  the                                                               
argument is in a position to gain.                                                                                              
                                                                                                                                
MS.  HENRIKSEN said  this simply  gives APS  the ability  to look                                                               
into a situation.                                                                                                               
                                                                                                                                
SENATOR  COGHILL  asked  if  "undue  influence"  under  Title  47                                                               
relates to a civil action item.                                                                                                 
                                                                                                                                
MS.  HENRIKSEN answered  yes; this  is  about APS  investigations                                                               
under Title 47.                                                                                                                 
                                                                                                                                
CHAIR FRENCH  added that at  most this relates to  establishing a                                                               
conservatorship  or  getting  an  ex  parte  order  to  establish                                                               
separation between the "victim" and the perpetrator.                                                                            
                                                                                                                                
MS. HENRIKSEN  agreed and reiterated  that the  legislation deals                                                               
with Title  13 and Title  47. APS  only investigates and  a judge                                                               
makes it happen. The impetus for  the bill is that many cases now                                                               
relate  to  one family  member  using  their trust  and  inherent                                                               
authority  to take  control of  finances  and sometimes  decision                                                               
making  of   another  family  member.  These   changes  give  the                                                               
department another  chance to look  at the situation and  if need                                                               
be get an emergency stop on the draining of the finances.                                                                       
                                                                                                                                
2:28:34 PM                                                                                                                    
SCOTT   STERLING,   Supervising   Attorney,   Elder   Fraud   and                                                               
Assistance,  Office  of  Public  Advocacy  (OPA),  Department  of                                                               
Administration  (DOA)  said  his  expertise is  on  the  sections                                                               
dealing  with   temporary  conservatorships  and  the   ex  parte                                                               
emergency financial orders.                                                                                                     
                                                                                                                                
CHAIR FRENCH asked how his office and APS are related.                                                                          
                                                                                                                                
MR.  STERLING  explained  that  OPA  and  APS  are  in  different                                                               
departments,  but  they  have  a   memorandum  of  agreement  and                                                               
cooperate closely. OPA also works  closely with the Office of the                                                               
Long Term  Care Ombudsman. The  mission of OPA is  to investigate                                                               
claims regarding  the financial  exploitation of Alaskans  age 60                                                               
and older, and to seek civil  remedies on behalf of elders unable                                                               
to bring  a complaint without  assistance. Another part  of their                                                               
authorizing statute  has them provide assistance  to agencies and                                                               
people that are  concerned for elder well being  in the financial                                                               
area.                                                                                                                           
                                                                                                                                
CHAIR FRENCH asked if OPA supports SB 86.                                                                                       
                                                                                                                                
MR.  STERLING answered  absolutely; this  legislation will  place                                                               
Alaska  ahead of  many other  states even  though it  already has                                                               
well-run and active adult protective  service. The measures in SB
86 attempt  to target the  fact that technology is  outpacing law                                                               
enforcement's   ability   to   protect  people.   Scamsters   use                                                               
computerized  programs,  mass  data research,  and  census  data;                                                               
their  technology  is  on  par  with what  is  available  to  law                                                               
enforcement agencies.  Currently a scam lottery  is targeting zip                                                               
codes  in Alaska  combined with  census information  about income                                                               
above a  certain level. This  bill will help law  enforcement and                                                               
civil agencies combat these scams, he stated.                                                                                   
                                                                                                                                
SENATOR  PASKVAN asked  if there's  a readily  available list  of                                                               
attorneys that work in this area of law.                                                                                        
                                                                                                                                
MR. STERLING replied there is an  elder law section of the Alaska                                                               
Bar and it  maintains a list on the lawyer  referral service. OPA                                                               
attorneys are members.                                                                                                          
                                                                                                                                
SENATOR COGHILL  asked if  this bill will  help with  policing or                                                               
just the defense.                                                                                                               
                                                                                                                                
MR. STERLING replied he believes  it will help with prevention as                                                               
well  as cure.  The ex  parte procedures  have helped  to address                                                               
domestic  violence and  this  will probably  do  the same.  These                                                               
crimes operate  in the shadows  and are underreported  so they're                                                               
difficult to  track, but a  2009 study by the  MetLife Foundation                                                               
indicated  that  financial  exploitation is  the  single  largest                                                               
cause of elder abuse. This will help.                                                                                           
                                                                                                                                
2:36:06 PM                                                                                                                    
SENATOR WIELECHOWSKI joined the committee.                                                                                      
                                                                                                                                
SENATOR PASKVAN  mentioned the Burnie  Madoff scam  and commented                                                               
that scammers are hitting the population hard.                                                                                  
                                                                                                                                
MR.  STERLING responded  nominally  legal activity  goes on  that                                                               
conceals exploitation.                                                                                                          
                                                                                                                                
2:38:11 PM                                                                                                                    
CHAIR FRENCH closed public testimony  and announced he would hold                                                               
SB 86 in committee.                                                                                                             
                                                                                                                                

Document Name Date/Time Subjects
SB 17 Sponsor Statement version A.pdf SJUD 2/21/2011 1:30:00 PM
SB 17
SB 17 US DeptofJustice DEA News Release.pdf SJUD 2/21/2011 1:30:00 PM
SB 17
SB 17 NCSL Pending Legislation on Synthetic Cannabinoids by State as of 01.18.2011.pdf SJUD 2/21/2011 1:30:00 PM
SB 17
SB 17 NCSL Synthetic Cannabinoid State Laws as of 01.18.2011.pdf SJUD 2/21/2011 1:30:00 PM
SB 17
SB 17 Support Letter APOA AACP WPA.pdf SJUD 2/21/2011 1:30:00 PM
SB 17