Legislature(2007 - 2008)BELTZ 211

01/25/2008 03:00 PM Senate LABOR & COMMERCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Rescheduled from 01/24/08 --
+= SB 101 GUARDIANSHIP AND CONSERVATORS TELECONFERENCED
Moved CSSB 101(L&C) Out of Committee
Bills Previously Heard/Scheduled
= SB 147 WORKERS' COMP EMPLOYER LIABILITY
Heard & Held
= SB 107 NATUROPATHS
Moved CSSB 107(L&C) Out of Committee
              SB 101-GUARDIANSHIP AND CONSERVATORS                                                                          
                                                                                                                                
CHAIR JOHNNY ELLIS  announced SB 101 to be  up for consideration.                                                               
           d                                                                                                                    
[CSSB 101(2 L&C) version V was before the committee.]                                                                           
                                                                                                                                
DANA  OWEN, Staff  to Senator  Johnny Ellis,  sponsor of  SB 101,                                                               
said SB  101 has a  major change. The Uniform  Adult Guardianship                                                               
and  Protective Proceedings  Jurisdiction Act,  which is  a model                                                               
for a  lot of  states, was added.  The idea is  to set  a uniform                                                               
standard for  dealing with cases  that reach across  state lines.                                                               
In  addition,  he said  Josh  Fink,  Director, Office  of  Public                                                               
Advocacy, has asked for a few  small changes. On page 9, sections                                                               
17 and 18  have been added; section 17 gives  the court authority                                                               
to make  a finding of  incapacity in absence of  expert testimony                                                               
in  cases  where the  respondent  stipulates  to the  incapacity.                                                               
Section 18  mandates written  findings in  cases where  the court                                                               
deviates from  the priority list of  potential guardians. Section                                                               
20  has the  same mandate  for written  findings in  the case  of                                                               
conservators.  Section   21  provides   that  records   of  cases                                                               
involving  public guardians  are confidential  except where  they                                                               
are relevant  to an  investigation of a  public guardian  who has                                                               
provided guardianship or conservator  services. There are various                                                               
conforming amendments throughout the bill.                                                                                      
                                                                                                                                
3:10:41 PM                                                                                                                    
DEBORAH BEHR,  Chief Assistant Attorney General,  Legislation and                                                               
Regulations Section, Department of Law,  Juneau, said she also is                                                               
a  uniform  law  commissioner  for the  state  that  brought  the                                                               
Uniform   Adult    Guardianship   and    Protective   Proceedings                                                               
Jurisdiction Act  forward. It  is good  public policy  for Alaska                                                               
families. She  said SB 101  is supported by the  National College                                                               
of Probate  Judges and the National  Guardianship Foundation. The                                                               
Department of Health and Social Services supported it as well.                                                                  
                                                                                                                                
MS. BEHR  said that  Alaska family are  often transient  and have                                                               
family members  in several parts of  the US. So, for  example, if                                                               
she  had a  mother  in Fairbanks,  a brother  in  Virginia and  a                                                               
sister in California  and mother visits sister  in California and                                                               
has a  major event like  a stroke and becomes  incapacitated, the                                                               
court  has difficulty  deciding  which court  should handle  that                                                               
case. In the time you are  arguing over which court should handle                                                               
it,  it's  expensive  to  families.  This bill  would  set  up  a                                                               
priority system  among the states  as to who should  handle these                                                               
cases so  they can  look at what  is in the  best interest  of an                                                               
incapacitated family member. So in  the example, the family could                                                               
go to the California court and  say the sister is the best person                                                               
to take care  of her even though  she was with the  mother only a                                                               
couple  of months.  The California  court under  this bill  could                                                               
easily work  with the Alaska  court and come  up with a  plan. SB
147 would  also make it  easier to transfer guardianship  back up                                                               
to Alaska. It's cheaper and less stress for families.                                                                           
                                                                                                                                
3:13:26 PM                                                                                                                    
JOSH FINK,  Director, Office  of Public  Advocacy, said  Mr. Owen                                                               
went through the  changes and he would give  the rationale behind                                                               
them. The  issue in  section 17 was  that under  current statute,                                                               
they  are required  to provide  psychological examination  of any                                                               
respondent  where a  petition is  filed for  a protective  order.                                                               
This language allows the respondent  in instances where he or she                                                               
doesn't  object  to an  appointment  to  forego  the need  for  a                                                               
psychological  evaluation, which  can  be  very expensive.  Rural                                                               
parts of  the state  need to  fly a psychologist  out or  fly the                                                               
petitioner and a guardian in.                                                                                                   
                                                                                                                                
He  explained that  under  current  law sections  18  and 20  for                                                               
guardianships  and conservatorships  have  a priority  as to  who                                                               
should be appointed  a public guardian or  conservator. The order                                                               
starts  with the  person requested  by the  respondent, then  the                                                               
spouse, then the  adult child or parent, then  a relative, family                                                               
friend, private guardian and then  finally, as a last resort, the                                                               
Office  of Public  Advocacy.  This change  simply  asks that  the                                                               
court  make written  findings as  to why  someone was  appointed.                                                               
Sometimes,  he explained,  family members  exploit the  protected                                                               
person or were part of the  problem and yet after the appointment                                                               
they are  at his door  trying to micromanage the  ward's affairs.                                                               
This gives  his office a  written record  of why that  person was                                                               
not appointed. Making the court explain  what it is doing is just                                                               
good policy.                                                                                                                    
                                                                                                                                
MR. FINK said that section 21  is new and exempts public guardian                                                               
records from  the Public Records  Act, because they  contain very                                                               
personal information like mental  health evaluations and personal                                                               
family  affairs. It's  a  grey  area of  the  law  right now,  he                                                               
explained, and  he wasn't  sure if  someone asked  to see  one of                                                               
those files that they could be shared or not.                                                                                   
                                                                                                                                
He said section 23 on page  11 clarifies the statute to allow OPA                                                               
to go forward  on a practice they have been  doing since 1986. He                                                               
explained  that   he  collects  a  monthly   fee  established  in                                                               
regulation  of $40  a  month;  and for  some  clients  that is  a                                                               
hardship.  OPA can  defer the  fees until  the client  comes into                                                               
money. If a  ward is transferred to a private  guardian or family                                                               
member or dies, the OPA  typically collects the fees after burial                                                               
expenses are paid  and then have released the  remaining funds to                                                               
the  family. The  office  already does  this,  but this  language                                                               
makes it clear.                                                                                                                 
                                                                                                                                
3:18:04 PM                                                                                                                    
SENATOR BUNDE asked how a person  can either agree or disagree to                                                               
a process that judges them incompetent.                                                                                         
                                                                                                                                
MR. FINK replied that there  are two standards: guardianship is a                                                               
higher  level of  incapacity than  for conservatorship,  which is                                                               
just an inability  to manage finances. The current  practice is a                                                               
court visitor goes out and  collects whatever medical records are                                                               
available and  often they are  able to get  the doctor to  be the                                                               
expert.   Often,   particularly    with   conservatorships,   the                                                               
respondent will  have no  objection to  the appointment.  In some                                                               
rural  areas the  judge  has said  a person  is  agreeing to  the                                                               
protective  order,  but  under  the   law  he  has  to  have  him                                                               
evaluated.  So, he  has to  be  flown in  with a  caretaker or  a                                                               
psychologist has  to be flown  out. It is  exceedingly expensive.                                                               
If the ward was incapacitated such  that consent was an issue, he                                                               
couldn't  stipulate.  There  would  have to  be  a  psychological                                                               
evaluation.  Competency   means  you   have  to   understand  the                                                               
proceedings  you are  involved with  and what  you are  doing, he                                                               
added.                                                                                                                          
                                                                                                                                
3:20:03 PM                                                                                                                    
MARIE DARLIN,  Coordinator, AARP  Capital City Task  Force, AARP,                                                               
said she had provided a letter  of support to the committee. With                                                               
the increasing senior population there  will be a bigger need for                                                               
this kind of  service, she said. Incapacitated  elders often have                                                               
problems  with those  kinds of  cases. AARP  fully supported  the                                                               
idea behind the legislation.                                                                                                    
                                                                                                                                
3:21:25 PM                                                                                                                    
SENATOR DAVIS moved  to adopt CSSB 101(2d L&C),  version V. There                                                               
were no objections and it was so ordered.                                                                                       
                                                                                                                                
3:22:02 PM                                                                                                                    
SENATOR BUNDE  moved to  report CSSB  101(2d L&C)  from committee                                                               
with  individual  recommendations  and attached  fiscal  note(s).                                                               
There being no objection, the motion carried.                                                                                   

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