HB 150: "An Act relating to the protection of property of persons under disability and minors; relating to the crime of violating a protective order concerning certain vulnerable persons; relating to aggravating factors at sentencing for offenses concerning a victim 65 years or older; relating to the protection of vulnerable adults; amending Rule 12(h), Alaska Rules of Criminal Procedure; amending Rule 45(a), Alaska Rules of Criminal Procedure; amending Rule 65, Alaska Rules of Civil Procedure; amending Rule 17, Alaska Rules of Probate Procedure; amending Rule 9, Alaska Rules of Administration; and providing for an effective date."
00 HOUSE BILL NO. 150 01 "An Act relating to the protection of property of persons under disability and minors; 02 relating to the crime of violating a protective order concerning certain vulnerable 03 persons; relating to aggravating factors at sentencing for offenses concerning a victim 65 04 years or older; relating to the protection of vulnerable adults; amending Rule 12(h), 05 Alaska Rules of Criminal Procedure; amending Rule 45(a), Alaska Rules of Criminal 06 Procedure; amending Rule 65, Alaska Rules of Civil Procedure; amending Rule 17, 07 Alaska Rules of Probate Procedure; amending Rule 9, Alaska Rules of Administration; 08 and providing for an effective date." 09 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10 * Section 1. AS 11.56.740(a) is amended to read: 11 (a) A person commits the crime of violating a protective order if the person is 12 subject to a protective order
01 (1) issued or filed under AS 18.66 and containing a provision listed in 02 AS 18.66.100(c)(1) - (7) and knowingly commits or attempts to commit an act with 03 reckless disregard that the act violates or would violate a provision of the protective 04 order; [OR] 05 (2) issued under AS 18.65.850, 18.65.855, or 18.65.860 and knowingly 06 commits or attempts to commit an act that violates or would violate a provision listed 07 in AS 18.65.850(c)(1) - (3); or 08 (3) issued under AS 13.26.180 or 13.26.209 and knowingly commits 09 or attempts to commit an act with reckless disregard that the act violates or 10 would violate a provision of the protective order. 11 * Sec. 2. AS 11.56.740(c) is amended to read: 12 (c) In this section, "protective order" means an order issued or filed under 13 AS 13.26.180, 13.26.209; AS 18.65.850 - 18.65.870; or AS 18.66.100 - 18.66.180. 14 * Sec. 3. AS 12.55.155(c) is amended by adding a new paragraph to read: 15 (35) the defendant knowingly directed the conduct constituting the 16 offense at a victim because that person was 65 years of age or older. 17 * Sec. 4. AS 13.26.165 is amended to read: 18 Sec. 13.26.165. Protective proceedings. Upon petition and after notice and 19 hearing in accordance with the provisions of AS 13.26.165 - 13.26.315, the court may 20 appoint a conservator or make other protective order for cause as follows: 21 (1) appointment of a conservator or other protective order may be 22 made in relation to the estate and affairs of a minor if the court determines that a minor 23 owns money or property that requires management or protection which cannot 24 otherwise be provided, has or may have business affairs which may be jeopardized or 25 prevented by the status of being a minor, or that funds are needed for the minor's 26 support and education and that protection is necessary or desirable to obtain or provide 27 funds; 28 (2) appointment of a conservator or other protective order may be 29 made in relation to the estate and affairs of a person if the court determines that 30 (A) the person is unable to manage the person's property and 31 affairs effectively for reasons such as mental illness, mental deficiency,
01 physical illness or disability, advanced age, chronic use of drugs, chronic 02 intoxication, fraud, confinement, detention by a foreign power, or 03 disappearance; and 04 (B) the person has property which will be wasted or dissipated 05 unless proper management is provided, or that funds are needed for the 06 support, care and welfare of the person or those entitled to be supported by the 07 person and that protection is necessary or desirable to obtain or provide funds. 08 * Sec. 5. AS 13.26.180(a) is amended to read: 09 (a) The person to be protected, a person's attorney or other legal 10 representative, any person who is interested in the estate, affairs, or welfare of the 11 person to be protected, including a parent, guardian, [OR] custodian, or caregiver, the 12 Department of Health and Social Services, or any person who would be adversely 13 affected by lack of effective management of the property and affairs of the person to 14 be protected, may petition for the appointment of a conservator or for other 15 appropriate protective order. 16 * Sec. 6. AS 13.26.180 is amended by adding a new subsection to read: 17 (c) The petition may include a request for temporary conservatorship as 18 provided in AS 13.26.207 if it appears that the respondent's property will be wasted or 19 dissipated during the pendency of the conservatorship proceeding. A request for 20 temporary conservatorship must specify the facts that cause the petitioner to believe 21 that a temporary conservatorship is necessary. 22 * Sec. 7. AS 13.26 is amended by adding new sections to read: 23 Sec. 13.26.207. Temporary conservators. (a) If, during the pendency of an 24 initial petition for conservatorship, it appears that the respondent is in need of a 25 protective order to protect the respondent against waste or dissipation of funds or 26 property, or to obtain funds that are needed for the immediate support, care, and 27 welfare of the respondent or persons entitled to be supported by the respondent, and 28 the respondent is not capable of protecting the respondent's funds or property or 29 obtaining the funds that are needed to support the respondent or persons whom the 30 respondent is required to support, the petitioner may request the appointment of a 31 temporary conservator to authorize the protection or to obtain the necessary funds. The
01 request shall state the reasons and factual basis for the request. The petitioner shall 02 immediately file the request with the court and serve copies on the respondent and the 03 respondent's attorney. The court shall conduct a hearing within 72 hours after the 04 filing. 05 (b) If the court determines that a temporary conservator should be appointed, 06 it shall make the appointment and grant to the temporary conservator only the 07 authority that is least restrictive upon the liberty of the respondent and that enables the 08 temporary conservator to provide the protection or authority necessary to protect the 09 respondent from waste or dissipation of funds or property or to obtain the funds 10 necessary for support. 11 (c) The temporary conservatorship expires at the time of the appointment of a 12 full or partial conservator or upon the dismissal of the petition for conservatorship. 13 Sec. 13.26.209. Ex parte protective orders; forms for petitions and orders; 14 fees. (a) A person who is allowed to file a petition for a protective order under 15 AS 13.26.180(a) may file a petition for an ex parte protective order against another 16 person. If the court finds that the petition establishes probable cause that the 17 respondent is financially defrauding the petitioner or a person for whose benefit the 18 petitioner filed the petition, and that because of the fraud there has been, or is an 19 immediate threat of, a waste or dissipation of the proposed protected person's funds or 20 other property, the court shall ex parte and without notice to the respondent issue a 21 protective order. The petitioner shall certify to the court in writing any effort that the 22 petitioner made to provide notice to the respondent. The court shall cause a copy of 23 the protective order to be served on the respondent. 24 (b) An ex parte protective order under this section may 25 (1) grant any protection described in AS 13.26.200; 26 (2) supersede an existing power of attorney; 27 (3) prohibit the respondent from having any direct or indirect contact 28 with the petitioner or other person for whose benefit the petitioner filed the petition; 29 and 30 (4) prohibit the respondent from taking any act with respect to the 31 funds or other property of the petitioner or other person for whose benefit the
01 petitioner filed the petition. 02 (c) An ex parte protective order expires 20 days after it is issued, at the end of 03 a six-month extension if granted by the court under (d) of this section, or upon the 04 appointment of a temporary or permanent conservator or dismissal of the petition for 05 the ex parte order. 06 (d) Upon application filed with the court before the expiration of the 20-day 07 ex parte protective order, the court shall schedule a hearing on whether to extend the 08 protective order for up to six months. The court shall provide at least 10 days' notice to 09 the respondent of the hearing and the respondent's right to appear and be heard. If the 10 court finds by a preponderance of the evidence that the respondent has committed 11 fraud against the petitioner or the person for whose benefit the petition was filed, 12 regardless of whether the respondent appears at the hearing, the court may extend the 13 ex parte protective order for up to six months. 14 (e) A protective order issued under this section is in addition to any other civil 15 or criminal remedy. 16 (f) A third party shall comply with a protective order issued under this section. 17 A third party who does not comply with a protective order granted under this section 18 may be liable in a civil action to the protected person or the protected person's heirs, 19 assigns, or estate for a civil penalty not to exceed $1,000, plus the actual damages, 20 costs, and fees associated with the failure to comply with the protective order. A third 21 person who does not comply with a protective order granted under this section may 22 also be criminally liable under AS 11.56.740 for violating a protective order. 23 (g) The Alaska Court System, after consulting with the Department of Health 24 and Social Services, the office of public advocacy, the office of elder fraud and 25 assistance, the long-term care ombudsman, and other interested persons and 26 organizations, shall prepare forms for petitions, protective orders, and instructions for 27 their use by a person seeking a protective order under this section. The forms must 28 conform to the Alaska Rules of Probate Procedure and Alaska Rules of Civil 29 Procedure, except that information on the forms may be filled in by legible 30 handwriting. The office of the clerk of each superior and district court shall make 31 available to the public the forms a person seeking a protective order under this section
01 may need and instructions for the use of the forms. The clerk shall provide assistance 02 in completing and filing the forms. 03 (h) Filing fees may not be charged for a petition under this section. 04 * Sec. 8. AS 13.26 is amended by adding a new section to read: 05 Sec. 13.26.325. Definitions. In AS 13.26.165 - AS 13.26.325, unless the 06 context requires otherwise, "fraud" means 07 (1) robbery, extortion, and coercion under AS 11.41.500 - 11.41.530; 08 (2) theft and related offenses under AS 11.46.100 - 11.46.740; or 09 (3) exploitation of another person or another person's resources for 10 personal profit or advantage with no significant benefit accruing to the person who is 11 exploited. 12 * Sec. 9. AS 18.65.530(a) is amended to read: 13 (a) Except as provided in (b) or (c) of this section, a peace officer, with or 14 without a warrant, shall arrest a person if the officer has probable cause to believe the 15 person has, either in or outside the presence of the officer, within the previous 12 16 hours, 17 (1) committed domestic violence, except an offense under 18 AS 11.41.100 - 11.41.130, whether the crime is a felony or a misdemeanor; 19 (2) committed the crime of violating protective order in violation of 20 AS 11.56.740(a)(1) and (2) [AS 11.56.740]; 21 (3) violated a condition of release imposed under AS 12.30.016(e) or 22 (f) or 12.30.027. 23 * Sec. 10. AS 18.65.540(a) is amended to read: 24 (a) The Department of Public Safety shall maintain a central registry of 25 protective orders issued by or filed with a court of this state under AS 13.26.180, 26 13.26.209; AS 18.65.850 - 18.65.870; or AS 18.66.100 - 18.66.180. The registry must 27 include for each protective order the names of the petitioner and respondent, their 28 dates of birth, and the conditions and duration of the order. The registry shall retain a 29 record of the protective order after it has expired. 30 * Sec. 11. AS 18.65.540(b) is amended to read: 31 (b) A peace officer receiving a protective order from a court under
01 AS 13.26.180, 13.26.209; AS 18.65.850 - 18.65.855; or [,] AS 18.66.100 - 18.66.180, 02 a modified order issued under AS 18.65.860 or AS 18.66.120, or an order dismissing a 03 protective order, must take reasonable steps to ensure that the order, modified order, or 04 dismissal is entered into the central registry within 24 hours after being received. 05 * Sec. 12. AS 47.24.010(a) is amended to read: 06 (a) Except as provided in (e) and (f) of this section, the following persons 07 who, in the performance of their professional duties, have reasonable cause to believe 08 that a vulnerable adult suffers from undue influence, abandonment, exploitation, 09 abuse, neglect, or self-neglect shall, not later than 24 hours after first having cause for 10 the belief, report the belief to the department's central information and referral service 11 for vulnerable adults in the department office that handles adult protective 12 services: 13 (1) a physician or other licensed health care provider; 14 (2) a mental health professional as defined in AS 47.30.915(11) and 15 including a marital and family therapist licensed under AS 08.63; 16 (3) a pharmacist; 17 (4) an administrator or employee of a nursing home, residential care or 18 health care facility; 19 (5) a guardian or conservator; 20 (6) a police officer; 21 (7) a village public safety officer; 22 (8) a village health aide; 23 (9) a social worker; 24 (10) a member of the clergy; 25 (11) a staff employee of a project funded by the Department of 26 Administration for the provision of services to older Alaskans, the Department of 27 Health and Social Services, or the Council on Domestic Violence and Sexual Assault; 28 (12) an employee of a personal care or home health aide program; 29 (13) an emergency medical technician or a mobile intensive care 30 paramedic; 31 (14) a caregiver of the vulnerable adult;
01 (15) a certified nurse aide; 02 (16) an educator or administrative staff member of a public or 03 private educational institution. 04 * Sec. 13. AS 47.24.010(b) is amended to read: 05 (b) A report made under this section may include the name and address of the 06 reporting person and must include 07 (1) the name and contact information [ADDRESS] of the vulnerable 08 adult; 09 (2) information relating to the nature and extent of the undue 10 influence, abandonment, exploitation, abuse, neglect, or self-neglect; 11 (3) other information that the reporting person believes might be 12 helpful in an investigation of the case or in providing protection for the vulnerable 13 adult. 14 * Sec. 14. AS 47.24.010(c) is amended to read: 15 (c) The department, or its designees, shall report to the Department of Law 16 any person required by (a) of this section to report who fails to comply with this 17 section. A person listed in (a) of this section who, because of the circumstances, 18 should have had reasonable cause to believe that a vulnerable adult suffers from 19 undue influence, abandonment, exploitation, abuse, neglect, or self-neglect but who 20 knowingly fails to comply with this section is guilty of a class B misdemeanor. If a 21 person convicted under this section is a member of a profession or occupation that is 22 licensed, certified, or regulated by the state, the court shall notify the appropriate 23 licensing, certifying, or regulating entity of the conviction. 24 * Sec. 15. AS 47.24.010(d) is amended to read: 25 (d) This section does not prohibit a person listed in (a) of this section, or any 26 other person, from reporting cases of undue influence, abandonment, exploitation, 27 abuse, neglect, or self-neglect of a vulnerable adult that have come to the person's 28 attention in their nonoccupational capacity, nor does it prohibit any other person 29 from reporting a harm under this section. 30 * Sec. 16. AS 47.24.010(e) is amended to read: 31 (e) If a person making a report under this section believes that immediate
01 action is necessary to protect the vulnerable adult from imminent risk of serious 02 physical harm due to undue influence, abandonment, exploitation, abuse, neglect, or 03 self-neglect and the reporting person cannot immediately contact the department's 04 central information and referral service for vulnerable adults, the reporting person 05 shall [MAY] make the report to a police officer or a village public safety officer. The 06 police officer or village public safety officer shall take immediate action to protect the 07 vulnerable adult and shall [, AT THE EARLIEST OPPORTUNITY,] notify the 08 department within 24 hours of receiving the report of harm. A person may not 09 bring an action for damages against a police officer, village public safety officer, the 10 state, or a political subdivision of the state based on a decision under this subsection to 11 take or not to take immediate action to protect a vulnerable adult. If a decision is made 12 under this subsection to take immediate action to protect a vulnerable adult, a person 13 may not bring an action for damages based on the protective actions taken unless the 14 protective actions were performed with gross negligence or intentional misconduct; 15 damages awarded in the action may include only direct economic compensatory 16 damages for personal injury. 17 * Sec. 17. AS 47.24.010(f) is amended to read: 18 (f) A person listed in (a) of this section who reports to the long term care 19 ombudsman under AS 47.62.015, or to the Department of Health and Social Services, 20 that a vulnerable adult has been unduly influenced, abandoned, exploited, abused, or 21 neglected in an out-of-home care facility is considered to have met the duty to report 22 under (a) of this section. 23 * Sec. 18. AS 47.24.010 is amended by adding new subsections to read: 24 (i) A person required to report under this section who makes the report to the 25 person's job supervisor or to another individual working for the entity that employs the 26 person is not relieved of the obligation to make the report to the department as 27 required under (a) of this section. 28 (j) A person who recklessly makes a false report under this section is civilly 29 liable for actual damages suffered by the person who is the subject of the report. 30 * Sec. 19. AS 47.24.013(a) is amended to read: 31 (a) If a report received under AS 47.24.010 regards the undue influence,
01 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult who is 02 60 years of age or older that is alleged to have been committed by or to have resulted 03 from the negligence of the staff or a volunteer of an out-of-home care facility, 04 including a facility licensed under AS 47.32, in which the vulnerable adult resides, the 05 department shall transfer the report for investigation to the long term care ombudsman 06 under AS 47.62.015. 07 * Sec. 20. AS 47.24.013(b) is amended to read: 08 (b) The department shall investigate a report received under AS 47.24.010 09 regarding the undue influence, abandonment, exploitation, abuse, neglect, or self- 10 neglect of a vulnerable adult who is less than 60 years of age that is alleged to have 11 been committed by or to have resulted from the negligence of the staff or a volunteer 12 of an out-of-home care facility in which the vulnerable adult resides. 13 * Sec. 21. AS 47.24.013(c) is amended to read: 14 (c) Upon receipt of a report under (a) or (b) of this section, the long term care 15 ombudsman and the department shall 16 (1) conduct an investigation as appropriate under AS 47.62.015 or this 17 title, respectively; 18 (2) coordinate and cooperate in their responses to and investigations of 19 the report if their jurisdictions overlap; 20 (3) provide the results of their actions or investigations to the central 21 information and referral service of the office of the department that handles adult 22 protective services within 60 days after the receipt of the report. 23 * Sec. 22. AS 47.24.013(d) is amended to read: 24 (d) If the long term care ombudsman receives directly a report regarding the 25 undue influence, abandonment, exploitation, abuse, neglect, or self-neglect of a 26 vulnerable adult in an out-of-home care facility, the ombudsman shall provide the 27 report, and the results of the ombudsman's actions or investigations regarding the 28 report, to the central information and referral service of the office of the department 29 that handles adult protective services. The department may investigate the report as 30 described in AS 47.24.015 if the department determines that action is appropriate. 31 * Sec. 23. AS 47.24.015(a) is amended to read:
01 (a) Upon the department's receipt of a report under AS 47.24.010 that is not 02 transferred under AS 47.24.013, the department, or its designee, shall promptly initiate 03 an investigation to determine whether the vulnerable adult who is the subject of the 04 report suffers from undue influence, abandonment, exploitation, abuse, neglect, or 05 self-neglect. The department, or its designee, shall conduct a face-to-face interview 06 with the subject of the report unless that person is unconscious or the department, or 07 its designee, has determined that a face-to-face interview could further endanger the 08 vulnerable adult. 09 * Sec. 24. AS 47.24.015(c) is amended to read: 10 (c) The department, or its designee, shall immediately terminate an 11 investigation under this section upon the request of the vulnerable adult who is the 12 subject of the report made under AS 47.24.010. However, the department, or its 13 designee, may not terminate the investigation if the investigation to that point has 14 resulted in probable cause to believe that the vulnerable adult is in need of protective 15 services and the request is made personally by the vulnerable adult and the vulnerable 16 adult is not competent to make the request on the adult's own behalf, or the request is 17 made by the vulnerable adult's guardian, attorney-in-fact, or surrogate decision maker 18 and that person is the alleged perpetrator of the undue influence, abandonment, 19 exploitation, abuse, or neglect of the vulnerable adult and is being investigated under 20 this chapter. If the department has probable cause to believe that the vulnerable adult 21 is in need of protective services, 22 (1) the department may petition the court as set out in AS 47.24.019; 23 (2) the department, or its designee, may refer the report made to the 24 department under AS 47.24.010 to a police officer for criminal investigation; or 25 (3) in cases involving fraud, the department, or its designee, may refer 26 the report made to the department under AS 47.24.010 to the office of public advocacy 27 for investigation; in this paragraph, "fraud" has the meaning given in AS 13.26.325. 28 * Sec. 25. AS 47.24.015 is amended by adding new subsections to read: 29 (h) An individual or entity shall cooperate with an investigation initiated by 30 the department under this section. The individual or entity shall permit representatives 31 of the department to obtain and review any financial or health care records related to a
01 vulnerable adult and to interview staff that have had contact with, treated, or observed 02 the vulnerable adult. 03 (i) A person may not interfere with the department in the performance of its 04 investigation under this section, including interfering with the department's access to 05 the vulnerable adult. 06 (j) If an entity or other person denies the department access to a vulnerable 07 adult, a vulnerable adult's residence, or the health care or financial records of a 08 vulnerable adult, the department may file a petition with the court for an ex parte order 09 granting access if the department has not filed a petition for guardianship or 10 conservatorship of the vulnerable adult. The court may grant the ex parte order if the 11 petition shows that the department has received a report of harm under AS 47.24.010 12 and that the order is necessary for access to the adult or that the health care or financial 13 records are relevant to the department's investigation under AS 47.24.015. Notice of 14 the order shall be given to the party denying access as directed by the court. 15 (k) Notwithstanding any other provision of law, the office of the department 16 that handles adult protective services shall have access to any information compiled or 17 retained by other divisions within the department, regardless of the nature of the 18 information or whether the information is considered confidential, in order to assist in 19 administering the provisions of this chapter. 20 (l) The department may audiotape or videotape an interview of a vulnerable 21 adult if the adult has the capacity to consent and gives that consent. The department 22 shall document the consent in its investigative file. The department may not audiotape 23 or videotape an interview of a vulnerable adult who lacks the capacity to consent. 24 (m) The department shall provide for the training of investigators who 25 investigate reports of harm under this section. Training must include instruction in 26 federal, state, and local laws and policies of the department related to vulnerable 27 adults, and in investigative techniques. The department may require other appropriate 28 training. 29 (n) In this section, "financial records" includes records related to the 30 vulnerable adult maintained by the following: 31 (1) the vulnerable adult or fiduciary for the vulnerable adult;
01 (2) a financial institution; 02 (3) a caregiver of a vulnerable adult; 03 (4) a member of the vulnerable adult's family. 04 * Sec. 26. AS 47.24.016(a) is amended to read: 05 (a) If the department determines under AS 47.24.015 that a vulnerable adult is 06 in need of protective services, but the department cannot obtain the vulnerable adult's 07 consent to receive the services because the vulnerable adult is unable to consent or 08 lacks decision making capacity, and has no guardian, attorney-in-fact, trustee, or 09 surrogate for health care decisions under AS 13.52.030 [OR ATTORNEY IN 10 FACT] to serve as the vulnerable adult's surrogate decision maker, the department 11 may select from the following list, in the order of priority listed, an individual who is 12 willing to be the vulnerable adult's surrogate decision maker for the purpose of 13 deciding whether to consent to the vulnerable adult's receipt of protective services: 14 (1) the vulnerable adult's spouse, unless 15 [(A) THE VULNERABLE ADULT AND THE SPOUSE 16 HAVE SEPARATE DOMICILES; OR 17 (B)] the vulnerable adult or the spouse have initiated divorce or 18 dissolution proceedings; 19 (2) an individual who lives with the vulnerable adult in a spousal 20 relationship or as a domestic partner and who is 18 years of age or older; 21 (3) a son or daughter of the vulnerable adult who is 18 years of age or 22 older; 23 (4) a parent of the vulnerable adult; 24 (5) a brother or sister of the vulnerable adult who is 18 years of age or 25 older; or 26 (6) a close friend or relative of the vulnerable adult who is 18 years of 27 age or older. 28 * Sec. 27. AS 47.24.016(b) is amended to read: 29 (b) An individual from the list in (a) of this section may not be selected as a 30 surrogate decision maker if 31 (1) the department determines that individual does not possess decision
01 making capacity; or 02 (2) there are allegations that individual is a perpetrator of the undue 03 influence, abandonment, exploitation, abuse, or neglect of the vulnerable adult. 04 * Sec. 28. AS 47.24.016(d) is amended to read: 05 (d) The department may not continue to provide protective services to a 06 vulnerable adult based on the consent of a surrogate decision maker serving under this 07 section or AS 13.52.030 if the department determines that the vulnerable adult has 08 become able to consent or has regained decision making capacity since the surrogate's 09 consent was given. The department may continue protective services to a vulnerable 10 adult who has become able to consent or has regained decision making capacity only 11 if the vulnerable adult consents. 12 * Sec. 29. AS 47.24.017(a) is amended to read: 13 (a) If the department determines under AS 47.24.015 that a vulnerable adult is 14 in need of protective services and either the vulnerable adult, the vulnerable adult's 15 guardian or attorney-in-fact, trustee [ATTORNEY IN FACT], [OR] a surrogate 16 decision maker selected under AS 47.24.016, or a surrogate for health care 17 decisions under AS 13.52.030 consents to receipt of the protective services, and to 18 the extent that resources are available, the department shall ensure that the protective 19 services for the vulnerable adult are provided by the department, or its designee, 20 within 10 working days after the department received the report under AS 47.24.010 21 regarding the undue influence, abandonment, exploitation, abuse, neglect, or self- 22 neglect of the vulnerable adult. However, if circumstances beyond the control of the 23 department or the department's designee make it impossible to provide the protective 24 services within the 10 working days, the department shall ensure that the services are 25 provided as soon as possible after that time. 26 * Sec. 30. AS 47.24.019(c) is amended to read: 27 (c) If a vulnerable adult who has consented to receive protective services, or 28 on whose behalf consent to receive protective services has been given, is prevented by 29 a family member, caregiver, guardian, conservator, attorney-in-fact, trustee, or 30 surrogate decision maker from receiving those services, the department may petition 31 the superior court for an injunction restraining the family member, caregiver,
01 guardian, conservator, attorney-in-fact, trustee, or surrogate decision maker from 02 interfering with the provision of protective services to the vulnerable adult. 03 * Sec. 31. AS 47.24.050 is amended to read: 04 Sec. 47.24.050. Confidentiality of reports. (a) Investigation reports and 05 reports of the undue influence, abandonment, exploitation, abuse, neglect, or self- 06 neglect of a vulnerable adult filed under this chapter are confidential and are not 07 subject to public inspection and copying under AS 40.25.110 - 40.25.125. However, 08 under [IN ACCORDANCE WITH] this chapter and regulations adopted under this 09 chapter, investigation reports may be used by appropriate agencies or individuals 10 inside and outside the state, in connection with investigations or judicial proceedings 11 involving the undue influence, abandonment, exploitation, abuse, neglect, or self- 12 neglect of a vulnerable adult. 13 (b) The department shall disclose a report of the undue influence, 14 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult if the 15 vulnerable adult who is the subject of the report or the vulnerable adult's guardian, 16 attorney-in-fact, trustee, or surrogate decision maker consents in writing. The 17 department may not disclose a report of the undue influence, abandonment, 18 exploitation, abuse, neglect, or self-neglect of a vulnerable adult to the vulnerable 19 adult's guardian, attorney-in-fact, trustee, or surrogate decision maker if that person is 20 an alleged perpetrator of the undue influence, abandonment, exploitation, abuse, or 21 neglect of the vulnerable adult and is being investigated under this chapter. The 22 department shall, upon request, disclose the number of verified reports of undue 23 influence, abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable 24 adult that occurred at an institution that provides care for vulnerable adults or that 25 were the result of actions or inactions of a public home care provider. 26 * Sec. 32. AS 47.24.130 is amended to read: 27 Sec. 47.24.130. Treatment through spiritual means. This chapter may not be 28 construed to mean that a person is unduly influenced, abused, neglected, self- 29 neglected, vulnerable, unable to consent, abandoned, exploited, or in need of 30 emergency or protective services for the sole reason that the person relies on or is 31 being furnished treatment by spiritual means through prayer alone under [IN
01 ACCORDANCE WITH] the tenets and practices of a church or religious 02 denomination of which the person is a member or adherent, if [PROVIDED THAT] 03 the person consents to the treatment through spiritual means only and the treatment is 04 administered by an accredited practitioner of the church or religious denomination. In 05 this section, "church or religious denomination" has the meaning given to "religious 06 organization" in AS 05.15.690. 07 * Sec. 33. AS 47.24.900(2) is amended to read: 08 (2) "abuse" means 09 (A) the [WILFUL,] intentional, or reckless nonaccidental, and 10 nontherapeutic infliction of physical pain, injury, [OR] mental or emotional 11 distress, or fear, including coercion and intimidation; or 12 (B) sexual assault under AS 11.41.410 or 11.41.420; 13 * Sec. 34. AS 47.24.900(3) is amended to read: 14 (3) "caregiver" means 15 (A) a person who is providing care to a vulnerable adult as a 16 result of a family relationship, or who has assumed some or all responsibility 17 for the care of a vulnerable adult voluntarily, by contract, as an employee of a 18 business that provides care in an adult's home, or by court order; or 19 (B) an employee of an out-of-home care facility who provides 20 care to one or more vulnerable adults; 21 * Sec. 35. AS 47.24.900(4) is amended to read: 22 (4) "decision making capacity" means the ability to understand and 23 appreciate the nature and consequences of a decision and the ability to reach and 24 communicate an informed decision; in this paragraph, "informed decision" means 25 a decision made by the vulnerable adult that is free from undue influence; 26 * Sec. 36. AS 47.24.900(7) is amended to read: 27 (7) "exploitation" 28 (A) means unjust or improper use of another person or another 29 person's resources for one's own profit or advantage, with or without the 30 person's consent; 31 (B) includes acts by a person who stands in a position of
01 trust or confidence with a vulnerable adult, or who knows or should know 02 that the vulnerable adult lacks the capacity to consent, that involve 03 obtaining profit or advantage through undue influence, deception, 04 intimidation, or breach of fiduciary duty; 05 * Sec. 37. AS 47.24.900(9) is amended to read: 06 (9) "neglect" means the intentional, or reckless failure by a caregiver 07 to provide essential care or services or access to essential care or services, or to 08 carry out a prescribed treatment plan, necessary to maintain the physical and 09 mental health of the vulnerable adult when the vulnerable adult is unable to provide 10 or obtain the services on the vulnerable adult's own; in this paragraph, "essential 11 care or services" means food, clothing, shelter, medical care, and supervision; 12 * Sec. 38. AS 47.24.900(11) is amended to read: 13 (11) "protective services" 14 (A) means services that are intended to prevent or alleviate 15 harm resulting from undue influence, abandonment, exploitation, abuse, 16 neglect, or self-neglect and that are provided to a vulnerable adult in need of 17 protection; ["PROTECTIVE SERVICES"] 18 (B) includes 19 (i) protective placement; 20 (ii) applying for or obtaining public benefits; 21 (iii) obtaining health care services and supplies; 22 (iv) freezing an account at a financial institution; 23 (v) petitioning for an ex parte protective order 24 under AS 13.26.209; 25 (vi) assisting with personal hygiene; 26 (vii) obtaining food and clothing; 27 (viii) protection from physical and emotional abuse; 28 (ix) obtaining representative payee services; and 29 (x) coordinating protective services; 30 * Sec. 39. AS 47.24.900(15) is amended to read: 31 (15) "unable to consent" means refusal to, or inability to, accept
01 services because 02 (A) the person is an incapacitated person or apparently is an 03 incapacitated person; 04 (B) of coercion by or fear of reprisal from the perpetrator of 05 undue influence, abandonment, exploitation, abuse, or neglect; 06 (C) of dependency on the perpetrator of undue influence, 07 abandonment, exploitation, abuse, or neglect for services, care, or support; or 08 (D) of an inability to perceive that refusal to consent results in 09 an imminent and substantial danger of loss of income or assets, eviction, 10 physical or mental harm to self or others, or death [OR IRREPARABLE 11 HARM TO SELF OR OTHERS]; 12 * Sec. 40. AS 47.24.900(16) is amended to read: 13 (16) "vulnerable adult" means a person 18 years of age or older who, 14 because of incapacity, mental illness, mental deficiency, physical illness or 15 disability, advanced age, chronic use of drugs, chronic intoxication, fraud, 16 confinement, or disappearance [PHYSICAL OR MENTAL IMPAIRMENT], is 17 unable to meet the person's own needs or to seek help without assistance. 18 * Sec. 41. AS 47.24.900 is amended by adding new paragraphs to read: 19 (17) "deception" means creating, reinforcing, or failing to correct a 20 false impression or preventing another person from acquiring information that would 21 affect the person's judgment regarding a transaction; 22 (18) "fiduciary duty" means the duty of a guardian, conservator, 23 trustee, representative payee, or holder of a power of attorney of a vulnerable adult to 24 act for the benefit of the vulnerable adult; 25 (19) "financial institution" means an institution subject to state or 26 federal banking or financial regulations, including 27 (A) a broker-dealer; 28 (B) a commercial bank; 29 (C) a savings bank; 30 (D) a credit union; 31 (E) a premium finance company;
01 (F) a small loan company; 02 (G) a bank holding company; 03 (H) a financial holding company; 04 (I) a trust company; 05 (J) a savings and loan association; 06 (K) a deferred deposit advance licensee; 07 (L) an investment bank; 08 (M) an insurance company subject to regulation by AS 21; 09 (N) a licensee subject to regulation by AS 21; and 10 (O) an investment adviser; 11 (20) "person who stands in a position of trust or confidence" means a 12 person who 13 (A) is a relative by blood or marriage; 14 (B) is a joint tenant or tenant in common; 15 (C) has a legal or fiduciary relationship; or 16 (D) is a person who has been entrusted with or has assumed 17 responsibility for the use or management of the vulnerable adult's assets or 18 income; 19 (21) "undue influence" means a person of trust and confidence uses the 20 person's role, relationship, or authority to exploit the trust, dependency, or fear of a 21 vulnerable adult deceptively to gain control over the decision making of the vulnerable 22 adult, including decision making related to finances, property, residence, and health 23 care; 24 * Sec. 42. The uncodified law of the State of Alaska is amended by adding a new section to 25 read: 26 DIRECT COURT RULE AMENDMENTS. (a) Rule 12(h), Alaska Rules of 27 Criminal Procedure, is amended to read: 28 (h) Continuance of Trial. A motion for continuance of a trial date will be 29 granted by the court only for cause shown. In determining cause, the court shall 30 consider whether the victim is vulnerable due to advanced age, and the effect the 31 delay will have on that person; the court shall place its findings on the record.
01 The presiding judge of a judicial district may require that a visiting or pro tem judge 02 obtain approval from the presiding judge before granting any continuance of trial. 03 (b) Rule 45(a), Alaska rules of Criminal Procedure, is amended to read: 04 (a) The court shall provide for placing criminal proceedings upon appropriate 05 calendars. Preference shall be given to criminal proceedings, [AND] the trial of 06 defendants in custody, and the trial of cases in which the victim is vulnerable due 07 to advanced age, shall be given preference over other criminal cases. Trial dates in 08 criminal cases in the superior court shall be set at the time of arraignment, and if a trial 09 date is thereafter vacated, the trial shall be immediately set for a date certain. 10 * Sec. 43. The uncodified law of the State of Alaska is amended by adding a new section to 11 read: 12 INDIRECT COURT RULE AMENDMENTS. (a) AS 13.26.209(a) - (g), enacted by 13 sec. 7 of this Act, has the effect of amending Rule 17, Alaska Rules of Probate Procedure, 14 relating to conservatorships and protective proceedings, by allowing ex parte orders to be 15 issued related to protecting the assets of a person otherwise subject to AS 13.26.165 from 16 financial exploitation. 17 (b) AS 13.26.209(h), enacted by sec. 7 of this Act, has the effect of amending Rule 9, 18 Alaska Rules of Administration, by requiring that filing fees may not be charged for a petition 19 for an ex parte protective order under AS 13.26.209(a), enacted by sec. 7 of this Act. 20 (c) AS 47.24.015(j), enacted by sec. 25 of this Act, has the effect of amending Rule 21 65, Alaska Rules of Civil Procedure, relating to injunctions, by allowing ex parte orders to be 22 issued related to injunctive relief for certain access to persons or records in order to 23 investigate a report of harm under AS 47.24.010 for a vulnerable adult. 24 * Sec. 44. The uncodified law of the state of Alaska is amended by adding a new section to 25 read: 26 APPLICABILITY. Sections 1, 2, 3, and 42 of this Act apply to offenses committed on 27 or after the effective date of this Act. 28 * Sec. 45. The uncodified law of the State of Alaska is amended by adding a new section to 29 read: 30 CONDITIONAL EFFECT. (a) AS 13.26.209(a) - (g), enacted by sec. 7 of this Act, 31 takes effect only if sec. 43(a) of this Act receives the two-thirds vote of each house required
01 by art. IV, sec. 15, Constitution of the State of Alaska. 02 (b) AS 13.26.209(h), enacted by sec. 7 of this Act, takes effect only if sec. 43(b) of 03 this Act receives the two-thirds vote of each house required by art. IV, sec. 15, Constitution of 04 the State of Alaska. 05 (c) AS 47.24.015(j), enacted by sec. 25 of this Act, takes effect only if sec. 43(c) of 06 this Act receives the two-thirds vote of each house required by art. IV, sec. 15, Constitution of 07 the State of Alaska. 08 * Sec. 46. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 REVISOR'S INSTRUCTIONS. The revisor of statutes is instructed to change the 11 catchline of 12 (1) AS 47.24.010 from "Reports of harm" to "Persons required to report; 13 reports of harm;" 14 (2) AS 47.24.013 from "Reports of abandonment, exploitation, abuse, neglect, 15 or self-neglect of vulnerable adults in out-of-home care facilities" to "Reports of undue 16 influence, abandonment, exploitation, abuse, neglect, or self-neglect of vulnerable adults in 17 out-of-home care facilities." 18 * Sec. 47. This Act takes effect immediately under AS 01.10.070(c).