Legislature(2011 - 2012)BELTZ 105 (TSBldg)

03/18/2011 01:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSCR 2(STA) Out of Committee
         SB  86-PROTECTION OF VULNERABLE ADULTS/MINORS                                                                      
1:34:36 PM                                                                                                                    
CHAIR  FRENCH announced  the consideration  of SB  86 and  stated                                                               
that  this bill  hearing  would  be a  work  session  to reach  a                                                               
compromise in order to prepare a committee substitute (CS).                                                                     
1:35:08 PM                                                                                                                    
SENATOR WIELECHOWSKI joined the committee.                                                                                      
1:36:53 PM                                                                                                                    
CHAIR FRENCH said he'd like  to start with the notice provisions.                                                               
In  the  underlying statute,  Title  13,  dealing with  ex  parte                                                               
orders, there  are notice  provisions that  are in  conflict with                                                               
the proposed bill. Ex parte  orders normally occur without giving                                                               
notice  to the  other  side.  This is  unusual  because only  one                                                               
person is  in the  court room. As  it stands now  it says,  "On a                                                               
petition  for appointment  of a  conservator or  other protective                                                               
order, the  person to be  protected …" must be  served personally                                                               
by certified  mail or by any  other method of notice  of hearing.                                                               
That is  in AS 13.26.185.  The bill  needs to clarify  that there                                                               
aren't two sets of notice requirements.                                                                                         
The other concern  is on page 4, line 22.  Scott Sterling had the                                                               
same  concern.  Because  it's a  vulnerable  adult,  that  person                                                               
probably  wouldn't be  the only  other person  in the  court. The                                                               
bill requires notice to the  respondent, and there should also be                                                               
some notice  to the vulnerable  adult as well, because  you don't                                                               
know the level of vulnerability.                                                                                                
1:40:51 PM                                                                                                                    
SCOTT   STERLING,   Supervising   Attorney,   Elder   Fraud   and                                                               
Assistance,  Office  of  Public  Advocacy  (OPA),  Department  of                                                               
Administration (DOA), said he agrees  there should be consistency                                                               
between new  language and  the existing statute.  He said  we can                                                               
carve  out  an  exception  for the  protective  orders  that  are                                                               
authorized by  the new section and  he would be happy  to work on                                                               
language to address that issue.                                                                                                 
MR.  STERLING added  that  on page  4, line  22,  the concern  is                                                               
ensuring that  the vulnerable adult  will receive  notice, unless                                                               
it's certified  to the court that  it would increase the  harm to                                                               
the vulnerable  adult. This is  to prevent an  unscrupulous third                                                               
party  from  using this  remedy,  and  also  to ensure  that  the                                                               
vulnerable  adult knows  that  relief is  being  sought on  their                                                               
behalf. In most cases, the  vulnerable adult probably will be the                                                               
petitioner, and  that issue  need not be  addressed. This  is for                                                               
the case when  an incapacitated person is being  victimized and a                                                               
third party  tries to  halt the  harm; they can  come in  and say                                                               
they are  speaking on  the victim's behalf  but the  victim would                                                               
still receive notice.                                                                                                           
CHAIR FRENCH said that makes  sense. He posed a hypothetical with                                                               
a vulnerable parent, an evil brother, and a good-hearted sister.                                                                
MR. STERLING said  the first question is if  the vulnerable adult                                                               
has  capacity. If  they do,  they could  ask for  relief. If  the                                                               
vulnerable adult lacks capacity and  is being victimized the good                                                               
hearted  sister could  go  to  court and  speak  on the  person's                                                               
behalf  for relief,  and exempt  notice to  the vulnerable  adult                                                               
because the  perpetrator could  intercept it.  Unless there  is a                                                               
specific reason,  the vulnerable  adult would receive  notice. It                                                               
is better  to freeze  the situation  so appropriate  agencies can                                                               
make inquiries without further dissipation of assets.                                                                           
1:46:12 PM                                                                                                                    
CHAIR FRENCH asked if the House had developed specific language.                                                                
MR. STERLING answered yes;  it is now in the form of  a CS in the                                                               
other body.                                                                                                                     
CHAIR FRENCH  asked if he'd  seen the  letter from Mark  Regan of                                                               
the  Disability Law  Center.  He summarized  it  as follows:  Mr.                                                               
Regan recommends an opportunity for  the person and respondent to                                                               
be  protected on  three days'  notice  and adds  a provision  for                                                               
immediate reappointment of counsel.                                                                                             
MR. STERLING  said he'd like to  look at that letter  but he sees                                                               
no reason why  a person couldn't say they  need modification. The                                                               
vulnerable  adult  is  entitled  to counsel  and  this  ex  parte                                                               
provision would  fit better with  the situation where  counsel is                                                               
appointed.  It  would be  different  from  the domestic  violence                                                               
1:49:17 PM                                                                                                                    
CHAIR  FRENCH  said  you  could see  where  the  situation  could                                                               
devolve quickly, and there could be substantial assets at risk.                                                                 
MR.  STERLING   answered  we're   often  trying  to   give  legal                                                               
protections long after the assets are gone.                                                                                     
CHAIR  FRENCH pointed  out the  definitions  for undue  influence                                                               
from other states. He said it's  in the packet with the memo from                                                               
Mr. Sterling.                                                                                                                   
1:51:21 PM                                                                                                                    
SENATOR PASKVAN  asked how  many people  would take  advantage of                                                               
this ex parte process.                                                                                                          
MR. STERLING replied they don't  have immediate relief mechanisms                                                               
in  the law.  The  best they  can  do is  file  for an  emergency                                                               
conservatorship.  Probably half  of the  cases that  come to  his                                                               
office have entirely dissipated assets or largely so.                                                                           
SENATOR PASKVAN  said he's  wondering if this  will result  in so                                                               
many  cases  statewide  that  it will  unduly  impact  the  court                                                               
MR. STERLING answered it may rise to that level over time.                                                                      
CHAIR FRENCH noted that Ms. Gibbens was on line.                                                                                
1:54:29 PM                                                                                                                    
JOANNE  GIBBENS,   Deputy  Director,   Division  of   Senior  and                                                               
Disabilities  Services (DSDS),  Department of  Health and  Social                                                               
Services  (DHSS) stated  that for  FY10 DSDS  received 541  calls                                                               
regarding financial exploitation. She  added that she didn't have                                                               
data about how many of those calls resulted in verified cases.                                                                  
SENATOR  PASKVAN  asked  if  that  phone  number  was  accessible                                                               
MS. GIBBONS answered yes.                                                                                                       
1:55:59 PM                                                                                                                    
DOUG  WOOLIVER,  Administrative  Attorney, Alaska  Court  System,                                                               
stated  that last  year the  court  record shows  there were  281                                                               
combined  conservatorships   and  guardianships  filed,   and  61                                                               
conservatorships  of an  adult  were filed.  He  added that  they                                                               
would expect to  see an increase in those over  time both because                                                               
of  the  aging  population  and  because  this  bill  creates  an                                                               
opportunity that doesn't currently exist.                                                                                       
CHAIR FRENCH  noted that  Alaska has  the fastest  growing senior                                                               
population in the nation.                                                                                                       
1:57:18 PM                                                                                                                    
CHAIR  FRENCH  said  point  2 of  Mr.  Sterling's  memo  suggests                                                               
replacing  the current  subsection  (f) with  other language.  He                                                               
asked if he meant to delete the contents of lines 17-22.                                                                        
MR. STERLING  said yes. He added  that this was corrected  in the                                                               
CS before the House committee.                                                                                                  
1:58:33 PM                                                                                                                    
SENATOR  MCGUIRE  reminded the  committee  that  this isn't  just                                                               
about  seniors.  Her brother  for  example,  has traumatic  brain                                                               
injury and issues  of individual liberty come into  play once the                                                               
adult  reaches  the  age  of   majority.  This  is  an  important                                                               
provision when you consider seniors  and the number of victims of                                                               
traumatic brain injury  coming out of Iraq. Alaska  is good about                                                               
recognizing individual liberties, she said.                                                                                     
2:00:18 PM                                                                                                                    
SENATOR PASKVAN  referenced point  2 of  Mr. Sterling's  memo and                                                               
asked what it intends to speak to.                                                                                              
MR.  STERLING   said  the  discussion   on  the   companion  bill                                                               
articulated the same concern of  ensuring that due process notice                                                               
accompanies the ex  parte order process. The remedy  was to mail,                                                               
fax, or  deliver a copy of  the order to the  third party's bank,                                                               
for  example.  The idea  of  recording  with the  state  recorder                                                               
wasn't viable  because of  existing provisions  in Title  40. The                                                               
drafters  suggested  saying the  order  would  be effective  upon                                                               
registering  with the  Department  of Public  Safety (DPS).  That                                                               
ties  in  with  the  similar   registry  provision  for  domestic                                                               
violence and  stalking orders.  This address  the fact  that most                                                               
financial institutions  are national companies and  they have the                                                               
ability  to research  the registry  that's  contemplated. On  the                                                               
family abuse level,  the idea is that if the  protective order is                                                               
served  on the  alleged perpetrator  at their  residence or  work                                                               
that would satisfy due process for receiving notice.                                                                            
2:04:12 PM                                                                                                                    
SENATOR PASKVAN said you're referencing  the perpetrator, not the                                                               
financial institution.                                                                                                          
MR. STERLING  said it's the  third party provision but  the order                                                               
would need  to be served  on that  branch and the  perpetrator so                                                               
they are held liable for obeying the order.                                                                                     
CHAIR FRENCH said you'll need to  enlist the aid of third parties                                                               
from time to time in order to be effective.                                                                                     
MR.  STERLING  agreed:  for  example, a  family  member  holds  a                                                               
nominally valid  power of attorney and  a third party, such  as a                                                               
bank, is obliged  to honor that. We don't want  to put that third                                                               
party in a  position of dishonoring it without  this notice. They                                                               
would then be  on the alert that someone is  abusing the power of                                                               
attorney. Do not honor that,  under the protection of this order,                                                               
until the situation can be clarified.                                                                                           
2:08:00 PM                                                                                                                    
SENATOR PASKVAN said the banks would need to check the registry.                                                                
MR.  STERLING  replied they  would  if  they didn't  receive  the                                                               
notice  by fax  or mail.  With the  property conveying  statutes,                                                               
financial  institutions  do  this   checking  regularly  for  UCC                                                               
2:09:28 PM                                                                                                                    
CHAIR FRENCH  asked why he  suggested a change in  the definition                                                               
of "fiduciary duty."                                                                                                            
MR. STERLING said this was addressed  in the House bill. He cited                                                               
Paskvan v.  Messich; it  would be  most consistent  with existing                                                               
CHAIR  FRENCH asked  if  "third  party" could  be  changed to  "a                                                               
MR. STERLING said would be fine.                                                                                                
2:12:02 PM                                                                                                                    
CHAIR FRENCH asked about the  mandatory reporting on page 9, Sec.                                                       There's  a "shall"  and the issue  is if  there's a                                                               
penalty for not making a report.                                                                                                
2:13:19 PM                                                                                                                    
KELLY  HENRIKSEN,  Assistant  Attorney General,  Civil  Division,                                                               
Human  Services  Section,  Department  of Law  (DOL),  said  they                                                               
didn't  contemplate  a   penalty.  It  was  intended   to  be  an                                                               
CHAIR FRENCH noted there is already a penalty in subsection (c).                                                                
MS.  HENRIKSON  said  she  found  similar  language  in  the  OCS                                                               
mandatory reporting language, in AS  47.17.020. It says the peace                                                               
officer "shall immediately  take action to protect  the child and                                                               
shall at  the earliest opportunity  notify the nearest  office of                                                               
the Department."                                                                                                                
CHAIR FRENCH said  the peace officer falls  under subsection (a).                                                               
The issue is there's a "shall"  and if you don't report a serious                                                               
crime resulting in injury, you are criminally liable.                                                                           
MS.  HENRIKSON  said  we  wouldn't treat  a  police  officer  any                                                               
CHAIR  FRENCH  said  it's  not   the  police  officer;  it's  the                                                               
reporting person  on line 4 who  might be at risk.  Those are the                                                               
same mandatory reports.                                                                                                         
2:16:31 PM                                                                                                                    
SENATOR PASKVAN  said page 9,  line 11-16, says "if  the decision                                                               
under  this subsection  is to  take immediate  action it  may not                                                               
bring an action  unless there is gross  negligence or intentional                                                               
misconduct." He asked  if there is a reason  for saying immediate                                                               
action  and why  wouldn't it  include  the decision  not to  take                                                               
immediate action.                                                                                                               
MS. HENRIKSON said she reads it  the same way. It applies to both                                                               
the VPSO and police officer.                                                                                                    
SENATOR PASKVAN cited the sentence above and said it's odd.                                                                     
MS. HENRIKSON agreed it should be made consistent.                                                                              
2:19:07 PM                                                                                                                    
CHAIR FRENCH  said his  list of concerns  had been  addressed and                                                               
noted that DOL had no further questions.                                                                                        
2:19:49 PM                                                                                                                    
MARIE  DARLIN, American  Association of  Retired Persons  (AARP),                                                               
stated support  for SB 86. She  said as the population  ages more                                                               
of these problems will come to  the fore. She agreed with Senator                                                               
McGuire that this would apply to more than just seniors.                                                                        
CHAIR FRENCH closed public testimony  and held SB 86 in committee                                                               
awaiting a CS.                                                                                                                  

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