Legislature(2011 - 2012)BELTZ 105 (TSBldg)

04/06/2011 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 86 PROTECTION OF VULNERABLE ADULTS/MINORS TELECONFERENCED
Heard & Held
+ SB 104 MANUFACTURED HOMES AS REAL PROPERTY TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 30 RETURN OF SEIZED PROPERTY
Moved CSSB 30(2d JUD) Out of Committee
= SB 98 BIOMETRIC INFORMATION FOR ID
Heard & Held
         SB  86-PROTECTION OF VULNERABLE ADULTS/MINORS                                                                      
                                                                                                                                
2:13:05 PM                                                                                                                    
CHAIR FRENCH  announced the  consideration of  SB 86  relating to                                                               
the protection  of vulnerable  adults and  minors. He  noted that                                                               
this  would   be  the  third  hearing.   The  proposed  committee                                                               
substitute (CS) is  designed to match the changes  that have been                                                               
made  to the  companion House  bill and  incorporate the  changes                                                               
this  committee has  made. He  asked for  a motion  to adopt  the                                                               
proposed CS.                                                                                                                    
                                                                                                                                
SENATOR WIELECHOWSKI moved to adopt the  work draft CS for SB 86,                                                               
labeled 27-GS1722\B, as the working document.                                                                                   
                                                                                                                                
CHAIR FRENCH objected for discussion purposes.                                                                                  
                                                                                                                                
2:14:29 PM                                                                                                                    
KELLY  HENRIKSEN,  Assistant  Attorney General,  Civil  Division,                                                               
Department of  Law (DOL), said  she represents the  Department of                                                               
Health and Social Services (DHSS).                                                                                              
                                                                                                                                
CHAIR FRENCH pointed out the  following people who were online to                                                               
answer questions:  Scott Sterling, Beth Russo,  and Rachel Levitt                                                               
from the Office  of Public Advocacy (OPA); David  Schade from the                                                               
Department of Public Safety (DPS);  Douglas Moody from the Public                                                               
Defender  Agency (PDA);  Brenda Mahlatini  from Adult  Protective                                                               
Services;  and Joanne  Gibbens from  the Division  of Senior  and                                                               
Disabilities Services (DSDS).                                                                                                   
                                                                                                                                
CINDY SMITH,  staff to Senator  French, explained that  version B                                                               
incorporates  the  following  changes that  the  House  Judiciary                                                               
Committee adopted in the companion bill:                                                                                        
                                                                                                                                
Page  1, line  13, and  page  2, line  6: Inserted  the words  "a                                                               
vulnerable"  and   deleted  the  words  "an   elderly  person  or                                                               
disabled" as proposed in the original revisor's bill.                                                                           
                                                                                                                                
Page 4, line 21; AS  13.26.207(a): Inserted the phrase "and other                                                               
persons as ordered by the court" following the word "attorney"                                                                  
                                                                                                                                
Page  5, lines  4-8; AS  13.26.209(a): Inserted  the language  "A                                                               
petition filed on behalf of  a protected person by another person                                                               
must be  accompanied by proof of  service of the petition  on the                                                               
protected person  or the person's  attorney unless  service would                                                               
cause an  immediate threat of harm  to the best interests  of the                                                               
protected person and the petition  includes a written explanation                                                               
of the harm." following the word "person."                                                                                      
                                                                                                                                
Page 5, lines  14-16; AS 13.26.209(a): Replaced  "The court shall                                                               
cause  a  copy of  the  protective  order  to  be served  on  the                                                               
respondent."  with  "The   court  shall  cause  a   copy  of  the                                                               
protective order, any related orders,  and a scheduling order, if                                                               
any, to be served on the respondent and the protected person."                                                                  
                                                                                                                                
Page  6, lines  1-2; AS  13.26.209(d): Inserted  the phrase  "the                                                               
protected  person  and" following  the  phrase  "the court  shall                                                               
provide to"                                                                                                                     
                                                                                                                                
Page 6,  lines 17-18; AS  13.26.209(g): Replaced the  language "A                                                               
third party  shall comply  with a  protective order  issued under                                                               
this section."  with "A third  party that has received  actual or                                                               
legal  notice of  a protective  order issued  under this  section                                                               
shall comply with the order."                                                                                                   
                                                                                                                                
Page  6, line  22; AS  13.26.209(g): Replaced  the word  "person"                                                               
with the word "party"                                                                                                           
                                                                                                                                
Page 6, lines  24-26; AS 13.26.209(g): Inserted  the language "As                                                               
used in this section, "actual  or legal notice" means delivery by                                                               
mail or facsimile  at the most recently known  place of residence                                                               
or business of the third party." following the word "order"                                                                     
                                                                                                                                
2:19:12 PM                                                                                                                    
Page  7, line  9:  Replaced  AS 13.26.325  with  AS 13.26.324  to                                                               
address inadvertent duplicate numbering.                                                                                        
                                                                                                                                
Page 7, line 12; AS  13.26.324(2): Replaced the phrase "theft and                                                               
related offenses" with the phrase "offenses against property"                                                                   
                                                                                                                                
Page  7, line  24; AS  18.65.530(a)(2): Replaced  the word  "and"                                                               
with the word "or"                                                                                                              
                                                                                                                                
Page 8, lines 10-21; AS 44.21.415(g):  This is a new section with                                                               
conforming changes to definitions in earlier provisions.                                                                        
                                                                                                                                
Page 10,  line 24; AS  47.24.010(e): Inserted the phrase  "at the                                                               
earliest opportunity" following the word "shall"                                                                                
                                                                                                                                
CHAIR  FRENCH said  he would  circle that  provision for  further                                                               
consideration.                                                                                                                  
                                                                                                                                
2:21:04 PM                                                                                                                    
Page 13,  lines 16-19; AS  47.24.015(h): The  original subsection                                                               
(h) was redrafted.                                                                                                              
                                                                                                                                
MS.  HENRIKSEN explained  that this  gives subpoena  authority to                                                               
the  DHSS as  opposed  to the  previous  provision that  required                                                               
anybody who  had documents for  custody of a vulnerable  adult to                                                               
make them available to the DHSS.                                                                                                
                                                                                                                                
Page  13,  lines  23;  AS 47.24.015(j):  Subsection  (j)  of  the                                                               
original  bill was  deleted and  the subsequent  subsections were                                                               
re-lettered accordingly.                                                                                                        
                                                                                                                                
MS. HENRIKSEN  explained that the original  subsection (j) wasn't                                                               
needed after the original subsection (h) was redrafted.                                                                         
                                                                                                                                
Page  14,  line 7;  AS  47.24.015(m):  Replaced the  phrase  "the                                                               
following:" and paragraphs (1)-(4) with the phrase "any person"                                                                 
                                                                                                                                
Page   14,  line   12;  AS   47.24.016(a):   Inserted  the   word                                                               
"conservator," following the word "guardian,"                                                                                   
                                                                                                                                
Page  14,  lines  21-22,   AS  47.24.016(a)(1)(B):  Replaced  the                                                               
language  "divorce or  dissolution" with  the language  "divorce,                                                               
[OR] dissolution, or legal separation"                                                                                          
                                                                                                                                
Page  15,  line  19;  AS   47.24.017(a):  Replaced  the  language                                                               
"guardian or" with "guardian, conservator, [OR]"                                                                                
                                                                                                                                
Page 16,  lines 2-3;  AS 47.24.019(c):  Replaced the  language "a                                                               
family  member,  caregiver, guardian,  conservator,  attorney-in-                                                               
fact, trustee, or surrogate decision  maker" with the phrase "any                                                               
person"                                                                                                                         
                                                                                                                                
Page 16,  lines 4-6;  AS 47.24.019(c):  Replaced the  language "a                                                               
family  member,  caregiver, guardian,  conservator,  attorney-in-                                                               
fact,  trustee,  or  surrogate  decision  maker"  with  the  word                                                               
"person"                                                                                                                        
                                                                                                                                
Page  16, lines  21 and  24; AS  47.24.050(b): Inserted  the word                                                               
"conservator," following the word "guardian,"                                                                                   
                                                                                                                                
Page  17,   line  15;  AS  47.24.900(2)(A):   Inserted  the  word                                                               
"knowing," following the word "intentional,"                                                                                    
                                                                                                                                
Page 18, line 1; AS  47.24.900(4): Replaced the word "means" with                                                               
the  word "includes"  to  make  it clear  that  the  list is  not                                                               
intended to be exhaustive.                                                                                                      
                                                                                                                                
Page 18, line 11; AS  47.24.900(7)(B): Inserted the word "fraud,"                                                               
following the word "deception,"                                                                                                 
                                                                                                                                
Page 18,  lines 12-13; AS 47.24.900(7)(B):  Inserted the language                                                               
"in  this  paragraph,  "fraud"  has   the  meaning  given  in  AS                                                               
13.26.324(1) and (2);" following the word "duty;"                                                                               
                                                                                                                                
Page 18, line  15; AS 47.24.900(9): Inserted  the word "knowing,"                                                               
following the word "intentional,"                                                                                               
                                                                                                                                
Page  18, line  21; AS  47.24.900(9): Replaced  the word  "means"                                                               
with the  word "includes" to make  it clear that the  list is not                                                               
intended to be exhaustive.                                                                                                      
                                                                                                                                
Page  18 line  22, through  page  19, line  6; AS  47.24.900(11):                                                               
Legislative Legal Services reformatted  this section, but made no                                                               
substantive change.                                                                                                             
                                                                                                                                
Page 18, line  30; AS 47.24.900(11)(D): Replaced  an earlier sub-                                                               
subparagraph   "(iv)  freezing   an   account   at  a   financial                                                               
institution;"  with a  new  subparagraph  "(D) staying  financial                                                               
transactions;"                                                                                                                  
                                                                                                                                
CHAIR FRENCH asked if DHSS agrees with the change.                                                                              
                                                                                                                                
MS. HENRIKSEN answered yes.                                                                                                     
                                                                                                                                
MS. SMITH continued.                                                                                                            
                                                                                                                                
Page  19,  line  17;  AS 47.24.900(15)(D):  Inserted  the  phrase                                                               
", waste, or dissipation" following the word "loss"                                                                             
                                                                                                                                
Page 19, lines  30-31 and page 20, line 1;  AS 47.24.900(18): The                                                               
language  describing  "fiduciary  duty"  in  paragraph  (18)  was                                                               
redrafted.                                                                                                                      
                                                                                                                                
2:25:47 PM                                                                                                                    
Page  20, lines  27-31; AS  47.24.900(21): Replaced  the language                                                               
" "undue influence"  means a person  of trust or  confidence uses                                                               
the  person's role,  relationship or  authority to  exploit" with                                                               
" "undue influence"  means the use  by a  person who stands  in a                                                               
position   of  trust   or  confidence   of  the   person's  role,                                                               
relationship, or authority to wrongfully exploit"                                                                               
                                                                                                                                
Page   20,  line   29;  AS   47.24.900(21):  Replaced   the  word                                                               
"deceptively" with the word "wrongfully"                                                                                        
                                                                                                                                
Page 21, lines 6-9; Direct  Court Rule Amendment. Rule 12(h): The                                                               
new language  in Rule  12(h) was redrafted  to say,  "In deciding                                                               
whether  to  grant  the  motion, the  court  shall  consider  the                                                               
victim's circumstances  and the effect  that delay would  have on                                                               
the  victim, particularly  a victim  of advanced  age or  extreme                                                               
youth. The court shall place its findings on the record."                                                                       
                                                                                                                                
CHAIR FRENCH asked  if these are motions for  continuances in any                                                               
matter.                                                                                                                         
                                                                                                                                
MS. HENRICKSEN said yes.                                                                                                        
                                                                                                                                
MS. SMITH continued.                                                                                                            
                                                                                                                                
Page 21,  lines 19-20; Direct  Court Rule Amendment.  Rule 45(a):                                                               
Deleted all  new bolded language  in Rule 45(a) and  inserted the                                                               
language  "The  court shall  consider  the  circumstances of  the                                                               
victim, particularly a  victim of advanced age  or extreme youth,                                                               
in setting the trial date." following the word "cases."                                                                         
Page 21 and 22, Secs. 48  and 49: These are conforming amendments                                                               
to adjust for earlier deletions and amendments.                                                                                 
                                                                                                                                
Page 22, line 29; Sec. 53:  The effective date language "This Act                                                               
takes  effect immediately  under AS  01.10.070(c)." was  replaced                                                               
with "Except as  provided in Sec. 52 of this  Act, this Act takes                                                               
effect July 1, 2011."                                                                                                           
                                                                                                                                
2:28:17 PM                                                                                                                    
MS. SMITH  continued to explain  that version B  incorporates the                                                               
following changes that the Senate Judiciary Committee made:                                                                     
                                                                                                                                
Page 4 lines  6-8: added a new subsection (c)  to AS 13.26.185 to                                                             
clarify  that notice  provisions do  not  apply to  the ex  parte                                                               
orders created under this bill                                                                                                  
                                                                                                                                
Page 6,  lines 7-14:  added language  to allow  the person  to be                                                               
protected or  the respondent to seek  modification or termination                                                               
of any ex-parte protective order  on three days' notice. This was                                                               
brought to the committee by the Disability Law Center.                                                                          
                                                                                                                                
Page  4, lines  21-23: added  language  that requires  that if  a                                                               
respondent is unrepresented, the  court shall appoint an attorney                                                               
to represent the  person at the hearing. This was  brought to the                                                               
committee by the Disability Law Center.                                                                                         
                                                                                                                                
Page 22,  line 28:  added a  delayed effective  date for  the new                                                               
reporting  provisions  in AS  47.24.010(a)  and  (e) to  go  into                                                               
effect  September 1,  2011.  This  is to  provide  time to  train                                                               
people who will be required to report.                                                                                          
                                                                                                                                
Page 6, Sec. 13.26.209(g): Deleted  the reference to "registering                                                               
with  the Department  of Public  Safety" as  a method  of serving                                                               
notice  as that  database  is not  publicly  available. This  was                                                               
added  by the  House Judiciary  Committee and  the Department  of                                                               
Health and Social  Services requested it be removed  in the House                                                               
Finance Committee.                                                                                                              
                                                                                                                                
CHAIR FRENCH  asked if  this was  the one  change that  the House                                                               
Judiciary Committee made that this committee declined to accept.                                                                
                                                                                                                                
MS. SMITH said that's correct.                                                                                                  
                                                                                                                                
CHAIR FRENCH opened public testimony.                                                                                           
                                                                                                                                
2:30:41 PM                                                                                                                    
MARIE DARLIN,  AARP-Alaska, said the  AARP letter of  support for                                                               
SB  86  highlights  that  the  aging  of  the  Alaska  population                                                               
presents unique  challenges for the criminal  justice system. The                                                               
bill  addresses   detecting  and   preventing  elder   abuse  and                                                               
increasing  awareness  of  the  issue.  SB  86  tries  to  create                                                               
vehicles  for  new  emergency  procedures   to  allow  courts  to                                                               
immediately  take  action  when   someone  is  being  financially                                                               
abused. The bill  also addresses other issues of  elder abuse and                                                               
provides   procedures  to   help   protect   elders  from   these                                                               
situations.                                                                                                                     
                                                                                                                                
CHAIR FRENCH removed his objection to  the adoption of the CS and                                                               
noted there was an amendment from the Department of Law.                                                                        
                                                                                                                                
2:32:56 PM                                                                                                                    
SENATOR  WIELECHOWSKI  moved  to   adopt  proposed  Amendment  1,                                                               
labeled 27G-1.                                                                                                                  
                                                                                                                                
CHAIR  FRENCH  objected for  discussion  purposes  and asked  Ms.                                                               
Henriksen for an explanation.                                                                                                   
                                                                                                                                
                                                  27G-1                                                                         
                          AMENDMENT 1                                                                                         
                                                                                                                                
          Page 5, line 1:                                                                                                       
               Delete "Ex parte protective"                                                                                   
               Insert "Protective"                                                                                            
                                                                                                                                
          Page 5, line 26, following "issued," through                                                                          
          line 27:                                                                                                              
               Delete all material.                                                                                             
            Insert "unless dissolved earlier by the                                                                             
          court or on the"                                                                                                      
                                                                                                                                
          Page 6, line 6:                                                                                                       
               Delete "ex parte"                                                                                                
                                                                                                                                
MS.  HENRIKSEN   explained  that  the  first   and  third  change                                                               
effectively removes  the reference  to "ex parte"  because what's                                                               
included  in the  provision  beyond  ex parte  is  the six  month                                                               
extension and that's not an ex parte procedure.                                                                                 
                                                                                                                                
CHAIR FRENCH  asked for an explanation  of the change on  page 5,                                                               
lines 26-27.                                                                                                                    
                                                                                                                                
MS. HENRIKSEN said this removes  all the particular circumstances                                                               
when an order  might end and instead say it  would occur whenever                                                               
the court directs  that the ex parte order needs  to expire. This                                                               
is broader  to cover  some circumstance that  might come  up that                                                               
isn't included in the prior list.                                                                                               
                                                                                                                                
2:36:07 PM                                                                                                                    
CHAIR FRENCH maintained  his objection to Amendment  1 and called                                                               
an at-ease from 2:36 p.m. to 2:43 p.m.                                                                                          
                                                                                                                                
2:43:02 PM                                                                                                                    
CHAIR FRENCH reconvened the meeting  and stated that there's been                                                               
agreement on a conceptual amendment to Amendment 1.                                                                             
                                                                                                                                
CHAIR  FRENCH  moved  a  conceptual  amendment  to  Amendment  1.                                                               
Subsection (c) on page 5 would read as follows:                                                                                 
                                                                                                                                
     (c) An ex parte protective  order expires 20 days after                                                                    
     it is  issued, at the  end of a six-month  extension if                                                                    
     granted by the court under  (d) of this section, on the                                                                    
     appointment of a temporary  or permanent conservator or                                                                    
     dismissal  of  the  petition for  the  ex  parte  order                                                                    
     unless dissolved earlier by the court.                                                                                     
                                                                                                                                
CHAIR  FRENCH announced  that  without  objection the  conceptual                                                               
amendment to Amendment 1 is  adopted. He removed his objection to                                                               
the adoption of Amendment 1  and announced that without objection                                                               
Amendment 1, as amended, is adopted.                                                                                            
                                                                                                                                
CHAIR FRENCH announced he would hold SB 86 in committee.                                                                        
                                                                                                                                
2:44:36 PM                                                                                                                    
MS.  HENRIKSEN   questioned  the  explanation  for   the  delayed                                                               
effective date change  in Section 52 on page 22.  She pointed out                                                               
that  Sections  16-28   covers  a  great  deal   more  than  Sec.                                                               
47.24.010(a) and (e).                                                                                                           
                                                                                                                                
CHAIR FRENCH agreed.                                                                                                            
                                                                                                                                
MS. HENRIKSEN said  she isn't sure if it's a  coincidence but Ms.                                                               
Gibbons pointed out that Sections  16-28 include all instances of                                                               
adding the phrase "undue influence."                                                                                            
                                                                                                                                
CHAIR  FRENCH said  his understanding  is that  it came  from the                                                               
drafter but that will be clarified  before the bill is moved from                                                               
committee.                                                                                                                      
                                                                                                                                
SB 86 was held in committee.                                                                                                    

Document Name Date/Time Subjects
CSSB 86 (JUD) Protection of Vulnerable Adults.pdf SJUD 4/6/2011 1:30:00 PM
SB 86
SB86 State Statutes on Undue Influence.pdf SJUD 4/6/2011 1:30:00 PM
SB 86
SB 86 Explanation of SJUD changes.doc SJUD 4/6/2011 1:30:00 PM
SB 86