03/27/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB101 | |
| SB211 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 211 | TELECONFERENCED | |
| + | SB 101 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 27, 2008
1:12 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Andrea Doll
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 101(2d L&C)
"An Act relating to private professional conservators, private
and public guardians, and court hearings on the issue of
incapacity; and establishing uniform adult guardianship and
conservator jurisdiction and procedures."
- HEARD AND HELD
SENATE BILL NO. 211
"An Act relating to an aggravating factor at sentencing for
crimes directed at a victim because of the victim's
homelessness."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 101
SHORT TITLE: GUARDIANSHIP/CONSERVATORS/INCAPACITY
SPONSOR(S): LABOR & COMMERCE
02/28/07 (S) READ THE FIRST TIME - REFERRALS
02/28/07 (S) L&C, STA, FIN
03/08/07 (S) L&C AT 1:30 PM BELTZ 211
03/08/07 (S) Heard & Held
03/08/07 (S) MINUTE (L&C)
03/13/07 (S) L&C AT 1:30 PM BELTZ 211
03/13/07 (S) Moved CSSB 101(L&C) Out of Committee
03/13/07 (S) MINUTE(L&C)
03/14/07 (S) L&C RPT CS 3DP 1NR SAME TITLE
03/14/07 (S) DP: ELLIS, BUNDE, DAVIS
03/14/07 (S) NR: STEVENS
03/27/07 (S) STA AT 9:00 AM BELTZ 211
03/27/07 (S) Heard & Held
03/27/07 (S) MINUTE (STA)
03/29/07 (S) STA AT 9:00 AM BELTZ 211
03/29/07 (S) Moved CSSB 101(STA) Out of Committee
03/29/07 (S) MINUTE(STA)
03/30/07 (S) STA RPT CS 3DP 2NR SAME TITLE
03/30/07 (S) DP: MCGUIRE, GREEN, BUNDE
03/30/07 (S) NR: FRENCH, STEVENS
01/15/08 (S) RETURNED TO L&C COMMITTEE
01/24/08 (S) L&C AT 3:00 PM BELTZ 211
01/24/08 (S) -- Rescheduled to 01/25/08 --
01/25/08 (S) L&C AT 3:00 PM BELTZ 211
01/25/08 (S) Moved CSSB 101(L&C) Out of Committee
01/25/08 (S) MINUTE(L&C)
01/28/08 (S) L&C RPT CS(2D) 4DP NEW TITLE
01/28/08 (S) DP: ELLIS, BUNDE, DAVIS, HOFFMAN
02/06/08 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/06/08 (S) Heard & Held
02/06/08 (S) MINUTE(FIN)
02/19/08 (S) FIN RPT CS(2D L&C) 4DP 3NR
02/19/08 (S) DP: ELTON, THOMAS, DYSON, HUGGINS
02/19/08 (S) NR: HOFFMAN, STEDMAN, OLSON
02/19/08 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/19/08 (S) Moved CSSB 101(2d L&C)) Out of
Committee
02/19/08 (S) MINUTE(FIN)
02/25/08 (S) TRANSMITTED TO (H)
02/25/08 (S) VERSION: CSSB 101(2D L&C)
02/27/08 (H) READ THE FIRST TIME - REFERRALS
02/27/08 (H) L&C, JUD
03/12/08 (H) L&C AT 3:00 PM CAPITOL 17
03/12/08 (H) -- MEETING CANCELED --
03/14/08 (H) L&C AT 3:00 PM CAPITOL 17
03/14/08 (H) Moved Out of Committee
03/14/08 (H) MINUTE(L&C)
03/17/08 (H) L&C RPT 5DP 1NR
03/17/08 (H) DP: GARDNER, BUCH, RAMRAS, GATTO, OLSON
03/17/08 (H) NR: NEUMAN
03/27/08 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 211
SHORT TITLE: AGGRAVATING FACTOR: HOMELESSNESS
SPONSOR(S): SENATOR(S) DAVIS
01/16/08 (S) PREFILE RELEASED 1/4/08
01/16/08 (S) READ THE FIRST TIME - REFERRALS
01/16/08 (S) JUD
02/01/08 (S) JUD AT 1:30 PM BELTZ 211
02/01/08 (S) -- MEETING CANCELED --
02/11/08 (S) JUD AT 1:30 PM BELTZ 211
02/11/08 (S) Heard & Held
02/11/08 (S) MINUTE(JUD)
02/15/08 (S) JUD AT 1:30 PM BELTZ 211
02/15/08 (S) Moved SB 211 Out of Committee
02/15/08 (S) MINUTE(JUD)
02/19/08 (S) JUD RPT 1DP 2NR
02/19/08 (S) DP: FRENCH
02/19/08 (S) NR: WIELECHOWSKI, MCGUIRE
03/12/08 (S) TRANSMITTED TO (H)
03/12/08 (S) VERSION: SB 211
03/13/08 (H) READ THE FIRST TIME - REFERRALS
03/13/08 (H) JUD
03/27/08 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
DANA OWEN, Staff
to Senator Johnny Ellis
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 101 on behalf of Senator
Ellis, chair of the Senate Labor and Commerce Committee,
sponsor.
MARIE DARLIN, Coordinator
AARP Capital City Task Force
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 101.
JOSHUA FINK, Director
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
SB 101.
DEBORAH BEHR
Chief Assistant Attorney General
Legislation & Regulations Section
Civil Division (Juneau)
Department of Law (DOL);
Commissioner
National Conference of Commissioners on Uniform State Laws
(NCCUSL)
Juneau, Alaska
POSITION STATEMENT: Answered questions on SB 101.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Answered questions on SB 101.
ERNEST SCHLERETH
Attorney at Law
Law Office of Ernest M. Schelereth, LLC
Anchorage, Alaska
POSITION STATEMENT: Testified on SB 101.
SENATOR BETTYE DAVIS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 211.
TOM OBERMEYER, Staff
to Senator Bettye Davis
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 211 on behalf of the sponsor,
Senator Davis.
GEORGE BRIGGS, Executive Director
Juneau Cooperative Christian Ministry
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
SB 211.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:12:03 PM. Representatives Dahlstrom,
Lynn, Holmes, Ramras were present at the call to order.
Representatives Coghill, Samuels, and Gruenberg arrived as the
meeting was in progress. Representative Doll was also in
attendance.
SB 101 - GUARDIANSHIP/CONSERVATORS/INCAPACITY
1:12:14 PM
CHAIR RAMRAS announced that the first order of business would be
CS FOR SENATE BILL NO. 101(2d L&C), "An Act relating to private
professional conservators, private and public guardians, and
court hearings on the issue of incapacity; and establishing
uniform adult guardianship and conservator jurisdiction and
procedures."
REPRESENTATIVE DAHLSTROM moved to adopt the proposed House
committee substitute (HCS) for SB 101, Version 25-LS0559\T,
Bullard, 3/24/08, as the work draft. There being no objection,
Version T was before the committee.
1:13:12 PM
DANA OWEN, Staff to Senator Johnny Ellis, Alaska State
Legislature, on behalf of Senator Ellis, chair of the Senate
Labor and Commerce Standing Committee, sponsor, stated that
Senator Ellis supports the proposed changes to SB 101. Mr. Owen
noted that the legislature first established licensing and
regulatory oversight of private professional guardians and
conservators in 2004. Senate Bill 101 is intended to improve
upon current law, and was drafted with the cooperation of the
Office of Public Advocacy (OPA); the Division of Corporations,
Business, and Professional Licensing; and the Alaska State
Association for Guardianship and Advocacy (ASAGA). In addition
to being supported by the ASAGA, SB 101 is supported by the AARP
and many other advocates of seniors in this state. He offered
that there has not been any opposition to the bill thus far.
MR. OWEN explained that House Bill 280, which passed the
legislature in 2004, and SB 101, have two goals, which are to
ensure that seniors and other vulnerable adults are not taken
advantage of by those entrusted to manage their finances and
lives, and to encourage the development of this industry in
Alaska. As Alaska's population grows and ages, these services
are becoming increasingly necessary. Version T incorporates
into statutes the Uniform Adult Guardianship and Protective
Proceedings Jurisdiction Act, which was developed by the
National Conference of Commissioners on Uniform State Laws
(NCCUSL) to establish common procedures among states for
jurisdictional transfer and enforcement issues in cases that
cross state borders. Version T would clarify that the Division
of Corporations, Business, and Professional Licensing may refuse
to renew a license as well as take disciplinary action if the
licensee has failed to meet the licensure requirements; would
specify those criminal convictions that would preclude an
individual from obtaining a license; and would require that
public guardians possess the same certification and pass the
same criminal background check required of private professional
guardians.
MR. OWEN noted that additionally, SB 101 would make a number of
improvements including eliminating the need for multiple
licenses and fees; clarifying that bonding and insurance
requirements are set by the court; clarifying that individuals
caring for family members, and certain financial institutions
are exempt from the licensing requirement; clarifying the
requirements for the annual report required of all guardians and
conservators; eliminating the need for a costly expert
evaluation in cases where the respondent agrees to a protective
appointment; requiring the court to make written findings if it
deviates from the priority list of potential guardians and
conservators; and exempting the records kept and maintained
under existing AS 13.26.380(c)(3) from inspection or copying
under the Public Records Act unless the records are relevant to
an investigation or formal proceeding. He concluded by noting
that he has only touched on a few of the provisions in SB 101.
1:17:29 PM
REPRESENTATIVE DAHLSTROM asked about the licensure requirements,
including the cost to obtain a license and the timeframe to
process the license, whether the bill will change the method by
which a ward of the state petitions the court and requests a
specific individual be named as a guardian, and, if so, how.
She noted that SB 101 identifies felonies and misdemeanors but
provides the department the authority to disqualify the crimes
on any grounds it sees fit. She suggested that she would like a
more thorough explanation of that process and whether SB 101
would remove any authority the court has to act as a guardian or
conservator in a particular case.
1:19:06 PM
MARIE DARLIN, Coordinator, AARP Capital City Task Force, stated
that the AARP supports SB 101. She emphasized that the need for
guardians has grown and will continue grow with the aging of
Alaska's population. The courts have found it more difficult to
find family members who are willing to provide conservator or
guardianship services, so the need for additional professional
services arises. This bill would improve the quality of care
for people who need conservators and guardians to assist them,
she opined. She noted that SB 101 provides safeguards through
the licensure and reporting requirements which will help to
ensure that conservators and guardians are prepared through
training and certification to better understand their
responsibilities and requirements to care for incapacitated
people. She pointed out that these services are helpful to
family members since the incapacitated person is often not in
the same town. She offered the AARP's full support for SB 101.
1:22:49 PM
JOSHUA FINK, Director, Anchorage Office, Office of Public
Advocacy (OPA), Department of Administration (DOA), noted that
SB 101 was introduced by the Senate Labor and Commerce Standing
Committee to fix some unintended consequences of House Bill 280,
which passed the legislature in 2004. Mr. Fink echoed Mr.
Owen's testimony on the bill's history, and noted that the
primary unintended consequence of passage of the enabling
legislation was that private professional guardians would be
subject to multiple licensees; furthermore, an insurance
requirement that did not make a lot of sense was added. Senate
Bill 101 will help ensure the protection of vulnerable adults
that have guardians, and encourages the growth of the
guardianship and conservatorship industry to provide necessary
services. This bill would only require an individual license,
either for a full guardianship, which includes conservatorship
services, or a conservatorship license - which does not include
the guardianship, but only the financial aspects - or a partial
guardianship, which allows the guardian to make decisions except
for conservator services. He stated that he is not aware of any
opposition to the bill.
MR. FINK stated that SB 101 eliminates the need for multiple
licenses, such as an organizational license for a business and
an individual license for each person in that business; SB 101
would require only an individual guardianship or individual
conservatorship license. The bill also clarifies which criminal
convictions would preclude an individual from obtaining a
license. He referred to Representative Dahlstrom's earlier
question and responded that Sections 3 and 5 include any felony
or misdemeanor that involves a crime of dishonesty such as
fraud, misrepresentation, misappropriation, theft, or any crime
that the department believes would hinder a person in providing
guardianship or conservatorship services, including a catchall
of "other crimes" such as assaulting an elderly person.
1:25:49 PM
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
MR. FINK explained that Section 3 applies to guardianships and
Section 5 applies to conservatorships and removes the
requirement in AS 08.26.020 that the applicant provide proof of
bonding and insurance, since applicants have had difficulty
obtaining a general letter of proof from insurance companies
because the companies require a set of specific circumstances
and facts for issuing bonds and insurance. Additionally, by
court rule, the court can set the amount of an individual bond,
so that's not necessary as a condition of licensure.
MR. FINK referred to Sections 7 and 8, and explained that the
Division of Corporations, Business, and Professional Licensing
asked for additional direction with respect to the information
that muse be included in the annual report, so this section
outlines that the financial statement should include the total
fees collected from the protected person, the total business
expenses, and the documents necessary to establish financial
solvency of the licensee. It also directs that the annual
report be submitted to the OPA, rather than to the Department of
Commerce, Community, & Economic Development (DCCED), since the
OPA has the expertise in guardianships. He offered that the OPA
has been asked to review the reports and flag for investigation
any licensee whose financial report indicates the need for
review.
1:28:06 PM
REPRESENTATIVE HOLMES noted that AS 08.26.080(4), which is not
being changed by SB 101, requires a letter stating that the
licensee has filed all required court reports in the previous
calendar year. She asked who would prepare and sign that
letter.
MR. FINK offered his understanding that the licensee would have
prepared that letter.
REPRESENTATIVE COGHILL noted that AS 08.26.080 requires the
licensee to submit the required information in the form of an
annual report.
VICE CHAIR DAHLSTROM referred to proposed AS 08.26.080(3), and
asked whether the licensee would be required to list all of
his/her income plus the fees collected from the protected
person. She inquired as to the necessity of the financial
disclosure.
MR. FINK offered his understanding that the applicant's
information needs only to include the information listed in the
proposed section.
1:30:47 PM
DEBORAH BEHR, Chief Assistant Attorney General, Legislation &
Regulations Section, Civil Division (Juneau), Department of Law
(DOL); Commissioner, National Conference of Commissioners on
Uniform State Laws (NCCUSL), explained that the department would
interpret this requirement through the regulatory process. She
indicated that she envisions that the licensee would be able to
obtain a simple statement from his/her bank, for example, that
he/she is in good standing, and that the requirement would not
require the disclosure of every check the licensee wrote.
VICE CHAIR DAHLSTROM suggested that the committee might wish to
clarify that point via an amendment.
MS. BEHR answered that that requirement is intended to prevent
someone who is in bankruptcy or in a bad financial situation
from taking advantage of someone with a limited mental capacity.
REPRESENTATIVE SAMUELS noted that the sponsor statement
indicates that the bill mandates that public guardians meet or
exceed the same standards as private professional guardians, and
asked whether the OPA staff already meets those standards.
MR. FINK offered that the OPA currently has 15 or 16 guardians
and all but 3 meet the proposed requirements, with the primary
requirement being that the guardian obtains national
certification. He explained that the 3 guardians who do not
currently meet this requirement are new and will be administered
the test this summer to ensure full compliance. As a matter of
policy, the OPA runs criminal background checks on guardian
applicants, and this bill would place into statute requirements
for actions that the OPA already performs.
1:33:00 PM
VICE CHAIR DAHLSTROM noted that proposed AS 08.26.020(4) in part
reads, "the individual has not been convicted of a felony or of
a misdemeanor offense", and asked whether that means that to be
qualified as a guardian, the person could not have ever been
convicted of a felony crime.
MR. FINK answered that this provision requires that the person
not be convicted of a felony within 10 years before the
application, and that felony cannot be one that involves fraud,
misrepresentation, material omission, or other crime of
dishonesty, or any crime that the department considers would be
an impediment to providing services. In response to another
question, he answered that the restrictions would be set by
regulation promulgated by the DCCED. However, it is the intent
of SB 101 that people who committed that type of crime would not
be eligible to be conservators or guardians since those crimes
encompass exploitation of vulnerable people.
MR. FINK explained that Section 10 would specify that the
department may refuse to renew a license or could take
disciplinary action against a licensee if the licensee fails to
meet the licensure requirements. Section 11 would clarify that
financial institutions regulated by the federal government are
exempt from the licensure requirement, since they are more
stringently regulated.
VICE CHAIR DAHLSTROM asked about specific licensure
requirements, including the length of time, cost, and criteria
for licensure.
MR. FINK offered that the court can appoint a temporary guardian
at the time that it considers appointing a permanent guardian.
He offered his understanding that the fee for a temporary
license is $50. He confirmed that this bill is designed to
allow for a family member to care for another family member, and
is aimed at licensing those guardians and conservators with more
than two clients. In response to another question, answered
that separate statutes address guardianship of minors.
REPRESENTATIVE HOLMES concurred.
MR. FINK pointed out that Section 18 would eliminate the need
for an expert evaluation to determine if the respondent is
incapacitated if the respondent agrees to a protective
appointment, which is current practice in many venues. He noted
that the OPA covers the cost for the evaluation which can be an
expensive process for those in remote areas. He explained that
Sections 20 and 24 require the court to make written findings if
the court appoints someone of lower priority as a guardian or
conservator. The order of priority in statute is the
respondent's named choice, his/her spouse, an adult child or
parent, a relative, family friend, private guardian, and the OPA
as an appointment of last resort. He noted that this simply
asks the court to explain why it is appointing the guardian.
1:39:02 PM
REPRESENTATIVE HOLMES referred to proposed AS 13.26.135(b), and
noted that its requirement to serve notice to the respondent's
spouse and parents is similar to a requirement in proposed AS
13.26.185(a). She asked whether there should a notice
requirement for children.
MR. FINK offered that this requirement was added at the request
of the [Alaska Court System's (ACS's)] court rules committee.
However, he noted that "interested persons" would also be
notified and that notice in guardianship proceedings is
currently set in statute.
REPRESENTATIVE COGHILL relayed his understanding that some
tension has existed between the appointment of public and
private conservators. He asked whether SB 101 would change that
dynamic.
MR. FINK indicated that that should not change under the bill.
He relayed his hope that by requiring the court to explain its
actions, the court will be more faithful to the statutory
framework. He stated that from his own experience at the OPA,
the court appears to be inclined to appoint OPA guardians and
not consider private appointments. However, he said he views
the OPA as an appointment of last resort. Thus, the court would
be required, under this provision, to explain why a family
member was not chosen. He opined that at times the OPA becomes
involved in instances when family members have exploited
vulnerable adults. He relayed that a court order will
demonstrate instances in which the court determined it was in
the best interests to appoint an OPA guardian.
REPRESENTATIVE COGHILL acknowledged that some family guardians
are excellent and some are not. However, the same could be said
of private guardians, depending on their personal management
style. He cautioned that it is important to ensure that more
financial requirements are placed on private conservators than
on public ones, but this should not relieve the state of
responsibility or accountability.
MR. FINK explained that SB 101 places the same requirements on
both public and private guardians with respect to background
checks and national certification. He referred to Sections 3
and 5, which establish those requirements, and noted that the
exception is that the public guardian doesn't have to apply for
the license, though he/she would still need to meet the overall
requirements. In response to Vice-Chair Dahlstrom, Mr. Fink
reiterated the order that the court uses to establish guardians,
which includes a priority for an individual or organization
nominated by the incapacitated person, then the person's spouse,
an adult child or parent, a relative, a relative or friend who
has demonstrated a long-standing interest in the person's
welfare, a private professional guardian, and finally a public
guardian.
VICE CHAIR DAHLSTROM questioned whether current statutes address
the mental state of the person making the decision.
MR. FINK answered that that is addressed in statute.
MS. BEHR interjected that a guardian could be appointed in
situations in which the incapacitated person is in a wheelchair
and his/her mental capacity is fine, but he/she needs help in
making health care decisions. She pointed out that sometimes
people erroneously think a person has to be totally
incapacitated in order to have a court appointed guardian, and
that is not true. However, the appointments are made by clear
and convincing evidence and require expert testimony to
substantiate any claim. Thus, court appointments of guardians
are not done lightly.
VICE CHAIR DAHLSTROM asked whether a person often selects an
individual over a spouse.
MS. BEHR responded that it is possible for a person to select
someone other than a spouse, such as in a case in which a person
does not obtain a divorce for religious reasons, and perhaps has
not seen his/her spouse for many years. In those instances it
makes sense that the person would select someone else as his/her
first choice for guardian.
1:46:42 PM
MR. FINK added that when someone files a petition, such as for
adult protective services by a hospital or a family member, the
respondent is appointed an attorney, and in instances in which a
person cannot afford an attorney, one is provided by OPA. Thus,
if the person can express his/her wishes, legal counsel will
represent those express wishes. In instances in which a person
is unconscious, a guardian ad litem may be appointed. A court
visitor is also appointed, and the visitor acts as an
independent investigator for the court. In that regard, the
court visitor visits family members, friends, and medical
providers, and makes a recommendation to the court for the
guardian. If a person wishes to be a guardian, but the court
visitor disagrees, the visitor would make that recommendation
known and the reason for that determination. He opined that
although the vast majority of cases are not contested, in cases
in which the guardian is contested, the person can also request
a trial by jury.
MR. FINK referred to Section 27, and offered his understanding
that it in part stipulates that public guardians must submit to
a background check and the same certification as private
guardians. He, too, explained that Section 26 exempts the
records kept and maintained under AS 13.26.380(c)(3) from
inspection and copying under the Public Records Act unless the
records are relevant to an investigation or formal proceeding.
He explained that Section 28 allows the OPA the ability to
collect its monthly fee, which is currently allowed by
regulation, and clarifies any possible ambiguity. He pointed
out that the OPA currently charges a $40/month fee for providing
guardian or conservator services, but will defer that fee if a
financial hardship exists. He noted that Section 28 also makes
it clear that if the appointment ends during a period of
deferment, the OPA's fee can still be collected.
MR. FINK pointed out that the sections he described outline the
amendments that the Senate Labor & Commerce Committee agreed to
introduce in the legislation; the OPA requested these changes
through the, Division of Corporations, Business, and
Professional Licensing.
1:49:56 PM
MS. BEHR offered to speak to the provisions that provide a new
Chapter 27 in Title 13 and establish the Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act. She
offered that this act was developed over many years between the
states in order to streamline the guardianship actions and
standardize the proceedings between states. She stated that SB
101 is supported by the DHSS, the National College of Probate
Judges, and has the general support of probate attorneys. She
explained that this bill would make it easier for family members
to address the legal needs of incapacitated adult family
members.
MS. BEHR relayed her own experience in which her mother, who
lived in Fairbanks but had traveled to California to visit her
daughter, suffered a major stroke. In this instance, the
California court did not know how to proceed with the case since
her mother was not a California resident. Her family decided
that their mother needed to stay in California where the illness
occurred, since that is where the needed care was being provided
and since her sister could provide emotional support. However,
the California court did not know if the case needed to be held
in Alaska, which would have been expensive, she opined.
MS. BEHR pointed out that if her mother recovered in California
and decided to move to Juneau, but still needed a guardian, then
the changes in SB 101 would make it very easy to transfer the
guardianship back to Alaska instead of requiring the family to
initiate a whole new proceeding in Alaska and incur the
associated costs. Additionally, if it turned out that the
family's Fairbanks house was vacant and the family wanted to
sell the home, SB 101 would allow for an easy method by which to
register the California guardianship in Alaska and set up
proceedings to sell the home. Currently, this process is
complicated to achieve and is costly to families. This bill is
designed for basic family decision-making, she opined, and
offered that the National Conference of Commissioners for
Uniform State Laws (NCCUSL) recommends adoption of the
provisions in SB 101.
1:53:43 PM
REPRESENTATIVE GRUENBERG referred to a letter from Ernest
Schlereth, a lawyer in the field of guardianship and
conservatorship.
MS. BEHR relayed that she'd shared that letter with the NCCUSL,
and that the NCCUSL accepted about 80 percent of Mr. Schlereth's
suggestions, stating that those changes did not dramatically
change the proposed law's uniformity between the states. The
remaining suggested changes would have dramatically changed the
uniformity between states, she noted. Ms. Behr further noted
that she previously spoke to Mr. Schlereth about this, so he is
aware of the suggestions that were incorporated into SB 101.
MR. FINK, in response to an earlier question regarding the cost
of licensure, reiterated that the initial application fee for
guardianship is $50, and noted that the biennial license fee is
$450.
1:55:52 PM
MS. BEHR, in response to Representative Coghill, agreed that in
order to have uniformity, states such as California would need
to adopt the proposed Act. She noted that she anticipates that
passage of the uniform Act will happen in time. She explained
that when changes are proposed, that the NCCUSL wants there to
be some uniform principles, though each state can adopt unique
provisions, such as Alaska's definition of guardianship which
includes conservatorship powers, so that if a person is a full
guardian in Alaska, he/she could also do conservatorship duties
such as perform bank account functions as well as provide health
care decisions. In many states those functions are separated.
She pointed out that SB 101 is not designed to change how a
guardian is appointed; rather, it is designed to address
interstate issues and jurisdiction.
REPRESENTATIVE COGHILL asked how many states have adopted the
proposed uniform Act.
MS. BEHR said currently about four or five states have passed
the uniform Act, and it is pending in many states. She said she
anticipates that many states will move quickly to adopt the
proposed uniform Act, similar to what happened with the Uniform
Child Custody Jurisdiction Act (UCCJA), which it parallels. She
further noted that the same types of practitioners perform
children's cases and family cases.
REPRESENTATIVE GRUENBERG pointed out that the UCCJA was enacted
in the early '70s, revolutionized the practice of child custody,
and eliminated to a large extent any civil kidnappings. It
required the courts to give full faith and credit, in the
constitutional sense, to domesticated decisions, and required
the parties to litigate in the same state, so that they could
not "forum shop." He opined that very quickly many states
adopted the UCCJA, although a few states held out. The federal
government then "federalized" the Act by passing a federal law
that established the interstate laws. He recalled that the
remaining states then adopted the UCCJA. Currently, a revised
Uniform Child Custody Jurisdiction Act has been adopted by most,
if not all states. He pointed out that the revised UCCJA is not
entirely without ambiguity. Therefore, if this act is modeled
on the UCCJA, he opined that adopting this Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act will be
extremely helpful, and he anticipated that one day the federal
government will "federalize" this Act, too.
2:00:27 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), stated that Version T contains changes requested by the
court, primarily technical amendments, that stem from a court
committee that works on guardianship issues. He offered that
Sections 1 and 2 contain the most substantive changes, and
pointed out that the preference is generally for a family member
or close family friend to be interested in guardianship, and
that the ACS counts on that actually happening. The preferences
that the court is required to follow direct the court to look
first to family members and close friends. However, it can be a
problem in some circumstances in which the duties can be
somewhat burdensome, and people miss work to take the ward to
appointments, which can put a real strain on some guardians.
MR. WOOLIVER noted that Section 1 and 2 will allow a family
member or friend to receive compensation, if approved by the
court, for his/her role as guardian, without having to go
through the process of becoming a licensed, private,
professional guardian. The procedure in this bill is set up for
the people who provide these services and is not aimed at family
members. In some instances, he surmised, some compensation
might enable some family members who provide the same services
to continue providing those services.
MR. WOOLIVER offered his understanding that Sections 19 and [22]
update the notice provisions of statute. When the court has a
petition for a person to become a ward, it is required to notify
family members. Currently, the statute requires that that
notification be through a process server; SB 101 updates the
statute to reflect current practice of notifying family members
by e-mail, certified mail, or fax, though in some instances a
process server is still necessary.
REPRESENTATIVE HOLMES pointed out that this section only refers
to spouse and parents. However, she noted that other parts of
the statute reflect that adult children or other interested
parties are to be notified.
MR. WOOLIVER concurred.
2:04:30 PM
VICE CHAIR DAHLSTROM asked whether notice is sufficiently
addressed in another statute.
MR. WOOLIVER opined that noticing provisions are well understood
and are not ambiguous.
REPRESENTATIVE GRUENBERG noted that both Sections 19 and 22 use
the term "certified mail", and asked whether that certified mail
is "return receipt requested" or if it would be necessary to
change that language in the bill.
MR. WOOLIVER expressed his belief that it would always be the
case that certified mail is sent return receipt requested.
MR. WOOLIVER explained that Section 23 corrects an error made
when the guardianship statutes were last . He explained that a
full guardian has the powers of guardian and conservator, and
this section would clarify that a full guardian and not just a
guardian could also be appointed as a conservator. He pointed
out that Section 25 would clarify that with limited exceptions,
when a conservator has been appointed, his/her rights terminate
upon the death of the ward. Mr. Wooliver noted that while this
provision doesn't change existing law, it helps to ensure that
the current statute does not contain language that conflicts
with other statutes.
2:06:55 PM
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
ERNEST SCHLERETH, Attorney at Law, Law Office of Ernest M.
Schelereth, LLC, stated that he prepared a letter dated
September 13, 2007, but has not yet had an opportunity to review
Version T of the bill. His particular interest, he relayed, is
to ensure that the respondent has proper representation and that
his/her rights are retained. He noted that in his letter, he'd
recommended that the proposed Uniform Adult Guardianship and
Protective Proceedings Jurisdiction Act be amended to include
the term, "interested" so that a court may allow a wide variety
of people to participate in what is otherwise a closed
proceeding; under the probate code, the term "interested" has to
do with picking out folks that have some degree of nexus to the
court proceeding.
MS. BEHR pointed out that that change has been incorporated into
Version T, specifically on page 23. In response to a comment by
Representative Gruenberg, Ms. Behr offered to meet with Mr.
Schlereth to address any other concerns he may have.
CHAIR RAMRAS indicated that SB 101, Version T, would be held
over.
The committee took an at-ease from 2:15 p.m. to 2:25 p.m.
SB 211 - AGGRAVATING FACTOR: HOMELESSNESS
2:25:57 PM
[Contains brief mention of HB 292, companion bill to SB 211.]
CHAIR RAMRAS announced that the final order of business would be
SENATE BILL NO. 211, "An Act relating to an aggravating factor
at sentencing for crimes directed at a victim because of the
victim's homelessness."
CHAIR RAMRAS asked whether SB 211 is identical to HB 292.
SENATOR BETTYE DAVIS, Alaska State Legislature, sponsor, offered
her understanding that it is.
2:27:06 PM
TOM OBERMEYER, Staff to Senator Bettye Davis, Alaska State
Legislature, offered that SB 211 would add an aggravating factor
at sentencing for crimes directed at a victim because of the
victim's homelessness. This bill allows the court to increase
the term of imprisonment, up to the maximum, for even the first
offense. Currently, the aggravated sentencing provisions of AS
12.55.155(c)(22) allow imposition of a sentence above the
presumptive range set out in AS 12.55.125, if the crime was
committed on the bases of the victim's race, sex, color, creed,
physical or mental disability, ancestry, or national origin.
Senate Bill 211 adds homelessness to that list, and its purpose
is to deter and punish defendants motivated to harm homeless
people who are particularly vulnerable and are increasingly
targets of crime. He pointed out that violent crimes against
homeless people have increased by 65 percent, from 2005 to 2006,
according to the 2006 [report] by the National Coalition for the
Homeless. This represents a 170 percent increase since the
organization's first study in 1999. The national trend is
reflected in more than 14,000 individuals who experienced
homelessness in Alaska each year, according to the Alaska
Interagency Council on Homeless report, Keeping Alaskans Out of
the Cold. This violence against the homeless has a direct
impact on the victim, the victim's family, the community, and
Alaska as a whole.
MR. OBERMEYER relayed his understanding from other research in
Alaska that about 25 percent of the homeless are veterans, and
that about 5,000 children are homeless each year. The homeless
include families and not just derelicts. The definition of
homeless that the Alaska Housing Finance Corporation (AHFC) uses
in part reads, "Any individual who lacks a fixed, regular, and
adequate nighttime residence or has a primary nighttime
residence in any facility not designed for permanent living".
He surmised that this definition would include those that end up
in a nighttime shelter, or who are, in fact, living out on the
street. In response to a question, stated that that definition
generally means a person without a regular nighttime shelter.
2:30:49 PM
REPRESENTATIVE GRUENBERG recalled camping out with friends or
temporarily staying with friends while awaiting the sale of a
home. He asked whether the term homeless could include someone
who is camping out in a tent. He suggested that the term needs
to be defined for purposes of SB 211.
MR. OBERMEYER said he believes that the definition should
include those who are in a temporary circumstance, since those
people are also more vulnerable. He surmised that as soon as
someone is not in permanent housing, he/she is at risk. He
opined that SB 211 is intended to protect those people who are
intentionally being sought out by someone in order to perpetrate
hate crimes against them. He noted members' packets contain
information on specific instances of crimes against the
homeless. He reiterated that SB 211 would add an aggravating
factor for sentencing in instances in which a perpetrator has a
predisposition to pick on someone who is vulnerable [because of
his/her homeless status.
REPRESENTATIVE GRUENBERG stated that while he supports SB 211,
his is interested in determining whether the committee should
define the term, "homelessness".
MR. OBERMEYER opined that such a definition would not be
necessary due to the difficulty in capturing all of the people
that should be included; some people might fall outside of any
such definition.
REPRESENTATIVE GRUENBERG offered his belief that a judge would
likely determine that instances in which a victim is staying
with a relative or friend for several weeks would not fall under
the term, "homelessness." He suggested that the sponsor use a
narrower definition so that no question exists for the judge.
The rule of lenity, he surmised, allows that statutory terms
will be construed as narrowly as possible to protect the
accused.
2:35:29 PM
SENATOR DAVIS elaborated that SB 211 is intended to affect more
than just street people. She explained that the aforementioned
definition for "homelessness" is used for housing purposes. She
pointed out that her son is living in her home temporarily but
if a census were taken, he would not be counted; he would be
considered homeless. Therefore, the term "homeless" as used in
the bill does not just refer to people living on the street or
those who don't have a place to go. And if a person is down and
out and is facing a foreclosure and not just a pending sale of
his/her home, that the person would also be vulnerable at that
point and likely could be considered homeless as well.
CHAIR RAMRAS pointed out that everyone is vulnerable to assault
crimes, and listed an example. He stated that he is not certain
in his own mind that those who are homeless should enjoy any
greater rights than other folks who are not homeless.
SENATOR DAVIS noted that legislators are here to make laws to
help people who cannot help themselves.
REPRESENTATIVE SAMUELS questioned why a judge should be allowed
to sentence a perpetrator depending on the victim's homeless
status, since the crime would be the same were it perpetrated
against someone who was not homeless. For example, if a woman
is raped, the impact of that violent crime is the same on the
victim regardless of whether she is homeless. He explained that
he is struggling with the concept of creating a different class
of victim. He suggested that the committee consider raising the
sentences for all of these crimes rather than to add aggravating
factors for the homeless. He opined that to differentiate
between the two types of victims illustrates the problem with
SB 211.
REPRESENTATIVE LYNN asked how the provisions of the bill would
be applied in the instance of one homeless person assaulting
another homeless person.
MR. OBERMEYER answered that an aggravating factor would apply by
definition. In response to Representative Samuels, he recalled
from his own experience in traveling the Chester Creek trail in
Anchorage that many Native women sleep in the woods and are
constantly assaulted simply because they are homeless. He
opined that the homeless person has a higher propensity to
become a victim than someone who is not homeless. He opined
that while it is possible to define "homeless", he believes that
the term is generally understood and so almost doesn't require a
definition. He said he thought that it might be helpful to us
the definition of homeless from the National Council on Homeless
Model Legislation, rather than the AHFC's definition because the
latter delves into housing issues as well. He opined that the
concept of this bill, to add an aggravating factor for
homelessness, is appropriate.
REPRESENTATIVE HOLMES referred to articles in members' packets
that contain information about perpetrators and crimes they have
committed. She relayed that she found the articles frightening,
particularly those about people preying on homeless people
simply because they think they will not face any consequences.
She offered her belief that the average person who is jogging on
a coastal trail has more ability to deal with the after effects
of the crime such as the question of whether to pursue
prosecution. She pointed out that that certainly doesn't negate
the nature of the crime or make it less horrific. She opined
that when perpetrators target the homeless because they think of
them as being less human, that's a worthwhile distinction to be
made with regard to increased sentencing.
2:44:05 PM
CHAIR RAMRAS offered his understanding that the working poor and
a percentage of the productive population move from being
homeless to living in a home. He offered to provide the
committee with such statistics from the community of Fairbanks.
He questioned whether a person's rights are materially changed
if the person has a home except for the months of May, June, and
July. He offered his belief that one victim should not have
more rights than another victim simply due to his/her living
conditions.
SENATOR DAVIS questioned whether Chair Ramras disagreed with
that section of the law.
CHAIR RAMRAS stated that he is troubled by proposals to add
aggravating factors and enhanced penalties in statute, adding
that although he is sympathetic to the concern about hate crimes
and views the actions against the homeless as hate crimes, he is
still concern about extending additional rights to specific
groups of people. He stated that while he is empathetic with a
homeless person's increased vulnerability, he is not moved to
add an aggravator factor for sentencing.
MR. OBERMEYER asserted that SB 211 does not change the rights of
an individual victim; instead it merely increases the judge's
discretion for recognizing an aggravating factor at sentencing
if it was determined that the victim had a crime perpetrated
against them because he/she was homeless. He surmised that a
person who is staying at someone's home is more vulnerable than
someone living in his/her own home.
CHAIR RAMRAS suggested that "vulnerable" is a defining term, and
offered that victims are looking for satisfaction and sometimes
restitution. He opined that those who have been assaulted,
regardless of whether they are homeless or have a disability,
all feel that they are entitled to seek the same level of
justice. He stated that he supports fairness for all victims in
seeking justice.
2:53:30 PM
MR. OBERMEYER stated that SB 211 would not change the
seriousness of a crime; again, it would simply give the judge
the ability to increase sentencing. He opined that the
prosecutor and judge would need to exercise judgment in these
cases.
REPRESENTATIVE LYNN surmised that the difficulty will be in
determining the motivation of the perpetrator in attacking a
particular person unless the perpetrator made statements to the
effect that he/she attacked the person because of his/her
homeless status.
MR. OBERMEYER explained that each case would need to be
determined on a case-by-case basis. However, he opined that the
propensity for being attacked is much higher if the person is
homeless.
2:56:16 PM
GEORGE BRIGGS, Executive Director, Juneau Cooperative Christian
Ministry, indicating that his organization is currently doing
business as the Glory Hole, stated that he recognizes that
aggravating factors are very difficult to prove. He surmised
that perhaps only one such case might be proved. Regardless, it
is important for a judge to have the ability to consider
aggravating factors at sentencing so that when the prosecutor
can prove that a person was attacked on the basis of his/her
homelessness, it would be considered a hate crime and thus
subject to the aforementioned aggravating factor. In response
to Chair Ramras, he noted that the Glory Hole serves about 40
for breakfast and about 100 for dinner, and is a 40-bed
facility.
SENATOR DAVIS asked for suggestions to improve the bill.
CHAIR RAMRAS said he has trouble with the bill fundamentally,
and stated that he did not intend to move SB 211 at this time.
SENATOR DAVIS clarified that she is merely requesting that SB
211 be allowed to move to the House floor.
CHAIR RAMRAS said he is not sure how SB 211 could be improved
given that it is only proposing a one-word change.
SENATOR DAVIS opined that if this bill passes and helps one
homeless person, then it is worth passing.
REPRESENTATIVE LYNN noted that it would helpful for him if the
bill contained a narrower definition of the term "homelessness".
SENATOR DAVIS expressed a willingness to consider that point.
3:04:02 PM
REPRESENTATIVE COGHILL surmised that "homelessness" will be
difficult to define. He then read portions of AS
12.55.155(c)(22), and portions of AS 12.55.155(c), which read:
(2) the defendant's conduct during the commission of
the offense manifested deliberate cruelty to another
person; ...
(5) the defendant knew or reasonably should have known
that the victim of the offense was particularly
vulnerable or incapable of resistance due to advanced
age, disability, ill health, or extreme youth or was
for any other reason substantially incapable of
exercising normal physical or mental powers of
resistance; ...
(8) the defendant's prior criminal history includes
conduct involving aggravated or repeated instances of
assaultive behavior; ...
(21) the defendant has a criminal history of repeated
instances of conduct violative of criminal laws,
whether punishable as felonies or misdemeanors,
similar in nature to the offense for which the
defendant is being sentenced under this section;
REPRESENTATIVE COGHILL suggested that existing aggravating
factors can already be applied, and stated that he favors
seeking action against the perpetrator for the crime he/she
commits instead of seeking a higher sentenced based on the class
of the victim. He expressed concern that unless the bill
defines "homelessness", it will create a conundrum for the
courts. He opined that a substantial set of laws currently
exists to address the behavior that SB 211 is attempting to
address. He indicated that he would vote "no" on the bill in
its current form.
3:07:02 PM
SENATOR DAVIS asked to be allowed to work to narrow the
definition of "homelessness".
CHAIR RAMRAS announced that SB 211 would be held over.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:08 p.m.
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