CSHB 150(JUD): "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; making conforming amendments; amending Rules 12(h) and 45(a), Alaska Rules of Criminal Procedure, Rule 77, Alaska Rules of Civil Procedure, Rule 17, Alaska Rules of Probate Procedure, and Rule 9, Alaska Rules of Administration; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 150(JUD) 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; making conforming 05 amendments; amending Rules 12(h) and 45(a), Alaska Rules of Criminal Procedure, 06 Rule 77, Alaska Rules of Civil Procedure, Rule 17, Alaska Rules of Probate Procedure, 07 and Rule 9, Alaska Rules of Administration; and providing for an effective date." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. AS 08.29.200(b) is amended to read: 10 (b) Notwithstanding (a) of this section, a person licensed under this chapter 11 shall report incidents of 12 (1) child abuse or neglect as required by AS 47.17; 13 (2) harm or assaults suffered by a vulnerable [AN ELDERLY
01 PERSON OR DISABLED] adult as required by AS 47.24. 02 * Sec. 2. AS 08.63.200(b) is amended to read: 03 (b) Notwithstanding (a) of this section, a person licensed under this chapter 04 shall report incidents of 05 (1) child abuse or neglect as required by AS 47.17; 06 (2) harm or assaults suffered by a vulnerable [AN ELDERLY 07 PERSON OR DISABLED] adult as required by AS 47.24. 08 * Sec. 3. AS 11.56.740(a) is amended to read: 09 (a) A person commits the crime of violating a protective order if the person is 10 subject to a protective order 11 (1) issued or filed under AS 18.66 and containing a provision listed in 12 AS 18.66.100(c)(1) - (7) and knowingly commits or attempts to commit an act with 13 reckless disregard that the act violates or would violate a provision of the protective 14 order; [OR] 15 (2) issued under AS 18.65.850, 18.65.855, or 18.65.860 and knowingly 16 commits or attempts to commit an act that violates or would violate a provision listed 17 in AS 18.65.850(c)(1) - (3); or 18 (3) issued under AS 13.26.180 or 13.26.209 and knowingly commits 19 or attempts to commit an act with reckless disregard that the act violates or 20 would violate a provision of the protective order. 21 * Sec. 4. AS 11.56.740(c) is amended to read: 22 (c) In this section, "protective order" means an order issued or filed under 23 AS 13.26.180, 13.26.209, AS 18.65.850 - 18.65.870, or AS 18.66.100 - 18.66.180. 24 * Sec. 5. AS 12.55.155(c) is amended by adding a new paragraph to read: 25 (35) the defendant knowingly directed the conduct constituting the 26 offense at a victim because that person was 65 years of age or older. 27 * Sec. 6. AS 13.26.165 is amended to read: 28 Sec. 13.26.165. Protective proceedings. Upon petition and after notice and 29 hearing in accordance with the provisions of AS 13.26.165 - 13.26.315, the court may 30 appoint a conservator or issue another [MAKE OTHER] protective order for cause as 31 follows:
01 (1) appointment of a conservator or other protective order may be 02 made in relation to the estate and affairs of a minor if the court determines that 03 (A) a minor owns money or property that requires management 04 or protection that [WHICH] cannot otherwise be provided; 05 (B) the minor [,] has or may have business affairs that 06 [WHICH] may be jeopardized or prevented by the status of being a minor; [,] 07 or 08 (C) [THAT] funds are needed for the minor's support and 09 education and [THAT] protection is necessary or desirable to obtain or provide 10 funds; 11 (2) appointment of a conservator or other protective order may be 12 made in relation to the estate and affairs of a person if the court determines that 13 (A) the person is unable to manage the person's property and 14 affairs effectively for reasons such as mental illness, mental deficiency, 15 physical illness or disability, advanced age, chronic use of drugs, chronic 16 intoxication, fraud, confinement, detention by a foreign power, or 17 disappearance; and 18 (B) the person has property that [WHICH] will be wasted or 19 dissipated unless proper management is provided, or that funds are needed for 20 the support, care, and welfare of the person or those entitled to be supported by 21 the person and [THAT] protection is necessary or desirable to obtain or 22 provide funds. 23 * Sec. 7. AS 13.26.180(a) is amended to read: 24 (a) The person to be protected, a person's attorney or other legal 25 representative, any person who is interested in the estate, affairs, or welfare of the 26 person to be protected, including a parent, guardian, [OR] custodian, or caregiver, the 27 Department of Health and Social Services, or any person who would be adversely 28 affected by lack of effective management of the property and affairs of the person to 29 be protected, may petition for the appointment of a conservator or for other 30 appropriate protective order. 31 * Sec. 8. AS 13.26.180 is amended by adding a new subsection to read:
01 (c) The petition may include a request for temporary conservatorship as 02 provided in AS 13.26.207 if it appears that the respondent's property is likely to be 03 wasted or dissipated during the pendency of the conservatorship proceeding. A request 04 for temporary conservatorship must specify the facts that cause the petitioner to 05 believe that a temporary conservatorship is necessary. 06 * Sec. 9. AS 13.26 is amended by adding new sections to read: 07 Sec. 13.26.207. Temporary conservators. (a) If, during the pendency of an 08 initial petition for conservatorship, it appears that the respondent is in need of a 09 protective order to protect the respondent against waste or dissipation of funds or 10 property, or to obtain funds that are needed for the immediate support, care, and 11 welfare of the respondent or persons entitled to be supported by the respondent, and 12 the respondent is not capable of protecting the respondent's funds or property or 13 obtaining the funds that are needed to support the respondent or persons whom the 14 respondent is required to support, the petitioner may request the appointment of a 15 temporary conservator to authorize the protection or to obtain the necessary funds. The 16 request must state the reasons and factual basis for the request. The petitioner shall 17 immediately file the request with the court and serve copies on the respondent and the 18 respondent's attorney and other persons as ordered by the court. The court shall 19 conduct a hearing within 72 hours after the filing. 20 (b) If the court determines that a temporary conservator should be appointed, 21 it shall make the appointment and grant to the temporary conservator only the 22 authority that is least restrictive upon the liberty of the respondent and that enables the 23 temporary conservator to provide the protection or authority necessary to protect the 24 respondent from waste or dissipation of funds or property or to obtain the funds 25 necessary for support. 26 (c) The temporary conservatorship expires at the time of the appointment of a 27 full or partial conservator or on the dismissal of the petition for conservatorship. 28 Sec. 13.26.209. Ex parte protective orders; forms for petitions and orders; 29 fees. (a) A person who is allowed to file a petition for a protective order under 30 AS 13.26.180(a) may file a petition for an ex parte protective order against another 31 person. A petition filed on behalf of a protected person by another person must be
01 accompanied by proof of service of the petition on the protected person or the person's 02 attorney unless service would cause an immediate threat of harm to the best interests 03 of the protected person and the petition includes a written explanation of the harm. If 04 the court finds that the petition establishes probable cause that the respondent is 05 financially defrauding the petitioner or a person for whose benefit the petitioner filed 06 the petition and that, because of the fraud, there has been or is an immediate threat of a 07 waste or dissipation of the proposed protected person's funds or other property, the 08 court shall ex parte and without notice to the respondent issue a protective order. The 09 petitioner shall certify to the court in writing any effort that the petitioner made to 10 provide notice to the respondent. The court shall cause a copy of the protective order, 11 any related orders, and a scheduling order, if any, to be served on the respondent and 12 the protected person. 13 (b) An ex parte protective order under this section may 14 (1) grant any protection described in AS 13.26.200; 15 (2) supersede an existing power of attorney; 16 (3) prohibit the respondent from having any direct or indirect contact 17 with the petitioner or other person for whose benefit the petitioner filed the petition; 18 and 19 (4) prohibit the respondent from taking any act with respect to the 20 funds or other property of the petitioner or other person for whose benefit the 21 petitioner filed the petition. 22 (c) An ex parte protective order expires 20 days after it is issued, at the end of 23 a six-month extension if granted by the court under (d) of this section, or on the 24 appointment of a temporary or permanent conservator or dismissal of the petition for 25 the ex parte order. 26 (d) On application filed with the court before the expiration of the 20-day ex 27 parte protective order, the court shall schedule a hearing on whether to extend the 28 protective order for up to six months. The court shall provide to the protected person 29 and the respondent at least 10 days' notice of the hearing and the respondent's right to 30 appear and be heard. If the court finds by a preponderance of the evidence that the 31 respondent has committed fraud against the petitioner or the person for whose benefit
01 the petition was filed, regardless of whether the respondent appears at the hearing, the 02 court may extend the ex parte protective order for up to six months. 03 (e) A protective order issued under this section is in addition to any other civil 04 or criminal remedy. 05 (f) A third party that has received actual or legal notice of a protective order 06 issued under this section shall comply with the order. A third party who does not 07 comply with a protective order granted under this section may be liable in a civil 08 action to the protected person or the protected person's heirs, assigns, or estate for a 09 civil penalty not to exceed $1,000, plus the actual damages, costs, and fees associated 10 with the failure to comply with the protective order. A third party who does not 11 comply with a protective order granted under this section may also be criminally liable 12 under AS 11.56.740 for violating a protective order. As used in this section, "actual or 13 legal notice" means delivery by mail or facsimile at the most recently known place of 14 residence or business of the third party or registering with the Department of Public 15 Safety. 16 (g) The Alaska Court System, after consulting with the Department of Health 17 and Social Services, the office of public advocacy, the office of elder fraud and 18 assistance, the long term care ombudsman, and other interested persons and 19 organizations, shall prepare forms for petitions and protective orders and instructions 20 for use of the forms by a person seeking a protective order under this section. The 21 forms must conform to the Alaska Rules of Probate Procedure and Alaska Rules of 22 Civil Procedure, except that information on the forms may be filled in by legible 23 handwriting. The office of the clerk of each superior and district court shall make 24 available to the public the forms a person seeking a protective order under this section 25 may need and instructions for the use of the forms. The clerk shall provide assistance 26 in completing and filing the forms. 27 (h) Filing fees may not be charged for a petition under this section. 28 * Sec. 10. AS 13.26 is amended by adding a new section to article 4 to read: 29 Sec. 13.26.324. Definitions. In AS 13.26.165 - 13.26.324, unless the context 30 requires otherwise, "fraud" means 31 (1) robbery, extortion, and coercion under AS 11.41.500 - 11.41.530;
01 (2) offenses against property under AS 11.46.100 - 11.46.740; or 02 (3) exploitation of another person or another person's resources for 03 personal profit or advantage if no significant benefit accrues to the person who is 04 exploited. 05 * Sec. 11. AS 18.65.530(a) is amended to read: 06 (a) Except as provided in (b) or (c) of this section, a peace officer, with or 07 without a warrant, shall arrest a person if the officer has probable cause to believe the 08 person has, either in or outside the presence of the officer, within the previous 12 09 hours, 10 (1) committed domestic violence, except an offense under 11 AS 11.41.100 - 11.41.130, whether the crime is a felony or a misdemeanor; 12 (2) committed the crime of violating a protective order in violation of 13 AS 11.56.740(a)(1) or (2) [AS 11.56.740]; 14 (3) violated a condition of release imposed under AS 12.30.016(e) or 15 (f) or 12.30.027. 16 * Sec. 12. AS 18.65.540(a) is amended to read: 17 (a) The Department of Public Safety shall maintain a central registry of 18 protective orders issued by or filed with a court of this state under AS 13.26.180, 19 13.26.209, AS 18.65.850 - 18.65.870, or AS 18.66.100 - 18.66.180. The registry must 20 include, for each protective order, the names of the petitioner and respondent, their 21 dates of birth, and the conditions and duration of the order. The registry shall retain a 22 record of the protective order after it has expired. 23 * Sec. 13. AS 18.65.540(b) is amended to read: 24 (b) A peace officer receiving a protective order from a court under 25 AS 13.26.180, 13.26.209, AS 18.65.850 - 18.65.855, or AS 18.66.100 - 18.66.180, a 26 modified order issued under AS 18.65.860 or AS 18.66.120, or an order dismissing a 27 protective order shall [, MUST] take reasonable steps to ensure that the order, 28 modified order, or dismissal is entered into the central registry within 24 hours after 29 being received. 30 * Sec. 14. AS 44.21.415(g) is amended to read: 31 (g) In this section,
01 (1) "fraud" means 02 (A) robbery, extortion, and coercion under AS 11.41.500 - 03 11.41.530; 04 (B) [THEFT AND RELATED] offenses against property 05 under AS 11.46.100 - 11.46.740; or 06 (C) exploitation of another person or another person's resources 07 for personal profit or advantage with no significant benefit accruing to the 08 person who is exploited; 09 (2) "older Alaskan" means a person residing in the state who is 60 10 years of age or older. 11 * Sec. 15. AS 47.24.010(a) is amended to read: 12 (a) Except as provided in (e) and (f) of this section, the following persons 13 who, in the performance of their professional duties, have reasonable cause to believe 14 that a vulnerable adult suffers from undue influence, abandonment, exploitation, 15 abuse, neglect, or self-neglect shall, not later than 24 hours after first having cause for 16 the belief, report the belief to the department's central information and referral service 17 for vulnerable adults in the office of the department that handles adult protective 18 services: 19 (1) a physician or other licensed health care provider; 20 (2) a mental health professional as defined in AS 47.30.915(11) and 21 including a marital and family therapist licensed under AS 08.63; 22 (3) a pharmacist; 23 (4) an administrator or employee of a nursing home, residential care, 24 or health care facility; 25 (5) a guardian or conservator; 26 (6) a police officer; 27 (7) a village public safety officer; 28 (8) a village health aide; 29 (9) a social worker; 30 (10) a member of the clergy; 31 (11) a staff employee of a project funded by the Department of
01 Administration for the provision of services to older Alaskans, the Department of 02 Health and Social Services, or the Council on Domestic Violence and Sexual Assault; 03 (12) an employee of a personal care or home health aide program; 04 (13) an emergency medical technician or a mobile intensive care 05 paramedic; 06 (14) a caregiver of the vulnerable adult; 07 (15) a certified nurse aide; 08 (16) an educator or administrative staff member of a public or 09 private educational institution. 10 * Sec. 16. AS 47.24.010(b) is amended to read: 11 (b) A report made under this section may include the name and address of the 12 reporting person and must include 13 (1) the name and contact information [ADDRESS] of the vulnerable 14 adult; 15 (2) information relating to the nature and extent of the undue 16 influence, abandonment, exploitation, abuse, neglect, or self-neglect; 17 (3) other information that the reporting person believes might be 18 helpful in an investigation of the case or in providing protection for the vulnerable 19 adult. 20 * Sec. 17. AS 47.24.010(c) is amended to read: 21 (c) The department or its designees shall report to the Department of Law any 22 person required by (a) of this section to report who fails to comply with this section. A 23 person listed in (a) of this section who, because of the circumstances, should have had 24 reasonable cause to believe that a vulnerable adult suffers from undue influence, 25 abandonment, exploitation, abuse, neglect, or self-neglect but who knowingly fails to 26 comply with this section is guilty of a class B misdemeanor. If a person convicted 27 under this section is a member of a profession or occupation that is licensed, certified, 28 or regulated by the state, the court shall notify the appropriate licensing, certifying, or 29 regulating entity of the conviction. 30 * Sec. 18. AS 47.24.010(d) is amended to read: 31 (d) This section does not prohibit a person listed in (a) of this section, or any
01 other person, from reporting cases of undue influence, abandonment, exploitation, 02 abuse, neglect, or self-neglect of a vulnerable adult that have come to the person's 03 attention in the person's nonoccupational capacity. This section does not prohibit 04 any other person from reporting a harm under this section. 05 * Sec. 19. AS 47.24.010(e) is amended to read: 06 (e) If a person making a report under this section believes that immediate 07 action is necessary to protect the vulnerable adult from imminent risk of serious 08 physical harm due to undue influence, abandonment, exploitation, abuse, neglect, or 09 self-neglect and the reporting person cannot immediately contact the department's 10 central information and referral service for vulnerable adults, the reporting person 11 shall [MAY] make the report to a police officer or a village public safety officer. The 12 police officer or village public safety officer shall take immediate action to protect the 13 vulnerable adult and shall [,] at the earliest opportunity within 24 hours after 14 receiving the report of harm [,] notify the department. A person may not bring an 15 action for damages against a police officer, a village public safety officer, the state, or 16 a political subdivision of the state based on a decision under this subsection to take or 17 not to take immediate action to protect a vulnerable adult. If a decision is made under 18 this subsection to take immediate action to protect a vulnerable adult, a person may 19 not bring an action for damages based on the protective actions taken unless the 20 protective actions were performed with gross negligence or intentional misconduct; 21 damages awarded in the action may include only direct economic compensatory 22 damages for personal injury. 23 * Sec. 20. AS 47.24.010(f) is amended to read: 24 (f) A person listed in (a) of this section who reports to the long term care 25 ombudsman under AS 47.62.015, or to the Department of Health and Social Services, 26 that a vulnerable adult has been unduly influenced, abandoned, exploited, abused, or 27 neglected in an out-of-home care facility is considered to have met the duty to report 28 under (a) of this section. 29 * Sec. 21. AS 47.24.010 is amended by adding new subsections to read: 30 (i) A person required to report under this section who makes the report to the 31 person's job supervisor or to another individual working for the entity that employs the
01 person is not relieved of the obligation to make the report to the department as 02 required under (a) of this section. 03 (j) A person who recklessly makes a false report under this section is civilly 04 liable for actual damages suffered by the person who is the subject of the report. 05 * Sec. 22. AS 47.24.013(a) is amended to read: 06 (a) If a report received under AS 47.24.010 pertains to [REGARDS] the 07 undue influence, abandonment, exploitation, abuse, neglect, or self-neglect of a 08 vulnerable adult who is 60 years of age or older that is alleged to have been committed 09 by or to have resulted from the negligence of the staff or a volunteer of an out-of- 10 home care facility, including a facility licensed under AS 47.32, in which the 11 vulnerable adult resides, the department shall transfer the report for investigation to 12 the long term care ombudsman under AS 47.62.015. 13 * Sec. 23. AS 47.24.013(b) is amended to read: 14 (b) The department shall investigate a report received under AS 47.24.010 15 regarding the undue influence, abandonment, exploitation, abuse, neglect, or self- 16 neglect of a vulnerable adult who is less than 60 years of age that is alleged to have 17 been committed by or to have resulted from the negligence of the staff or a volunteer 18 of an out-of-home care facility in which the vulnerable adult resides. 19 * Sec. 24. AS 47.24.013(c) is amended to read: 20 (c) Upon receipt of a report under (a) or (b) of this section, the long term care 21 ombudsman and the department shall 22 (1) conduct an investigation as appropriate under AS 47.62.015 or this 23 title, respectively; 24 (2) coordinate and cooperate in their responses to and investigations of 25 the report if their jurisdictions overlap; 26 (3) provide the results of their actions or investigations to the central 27 information and referral service of the office of the department that handles adult 28 protective services within 60 days after the receipt of the report. 29 * Sec. 25. AS 47.24.013(d) is amended to read: 30 (d) If the long term care ombudsman receives directly a report regarding the 31 undue influence, abandonment, exploitation, abuse, neglect, or self-neglect of a
01 vulnerable adult in an out-of-home care facility, the ombudsman shall provide the 02 report, and the results of the ombudsman's actions or investigations regarding the 03 report, to the central information and referral service of the office of the department 04 that handles adult protective services. The department may investigate the report as 05 described in AS 47.24.015 if the department determines that action is appropriate. 06 * Sec. 26. AS 47.24.015(a) is amended to read: 07 (a) Upon the department's receipt of a report under AS 47.24.010 that is not 08 transferred under AS 47.24.013, the department, or its designee, shall promptly initiate 09 an investigation to determine whether the vulnerable adult who is the subject of the 10 report suffers from undue influence, abandonment, exploitation, abuse, neglect, or 11 self-neglect. The department, or its designee, shall conduct a face-to-face interview 12 with the subject of the report unless that person is unconscious or the department, or 13 its designee, has determined that a face-to-face interview could further endanger the 14 vulnerable adult. 15 * Sec. 27. AS 47.24.015(c) is amended to read: 16 (c) The department[,] or its designee[,] shall immediately terminate an 17 investigation under this section upon the request of the vulnerable adult who is the 18 subject of the report made under AS 47.24.010. However, the department or its 19 designee may not terminate the investigation if the investigation to that point has 20 resulted in probable cause to believe that the vulnerable adult is in need of protective 21 services and the request is made personally by the vulnerable adult and the vulnerable 22 adult is not competent to make the request on the adult's own behalf, or the request is 23 made by the vulnerable adult's guardian, attorney-in-fact, or surrogate decision maker 24 and that person is the alleged perpetrator of the undue influence, abandonment, 25 exploitation, abuse, or neglect of the vulnerable adult and is being investigated under 26 this chapter. If the department has probable cause to believe that the vulnerable adult 27 is in need of protective services, 28 (1) the department may petition the court as set out in AS 47.24.019; 29 (2) the department or its designee may refer the report made to the 30 department under AS 47.24.010 to a police officer for criminal investigation; or 31 (3) in cases involving fraud, the department or its designee may refer
01 the report made to the department under AS 47.24.010 to the office of public advocacy 02 for investigation; in this paragraph, "fraud" has the meaning given in AS 13.26.324 03 [AS 44.21.415]. 04 * Sec. 28. AS 47.24.015 is amended by adding new subsections to read: 05 (h) In conducting an investigation under this section, the department may issue 06 subpoenas, conduct interviews, and examine any health care or financial records 07 related to a vulnerable adult. The department may seek a court order to enforce a 08 subpoena. 09 (i) A person may not interfere with the department in the performance of its 10 investigation under this section, including interfering with the department's access to 11 the vulnerable adult. 12 (j) Notwithstanding any other provision of law, the office of the department 13 that handles adult protective services shall have access to any information compiled or 14 retained by other divisions in the department, regardless of the nature of the 15 information or whether the information is considered confidential, to assist in 16 administering the provisions of this chapter. 17 (k) The department may audiotape or videotape an interview of a vulnerable 18 adult if the adult has the capacity to consent and gives that consent. The department 19 shall document the consent in its investigative file. The department may not audiotape 20 or videotape an interview of a vulnerable adult who lacks the capacity to consent. 21 (l) The department shall provide for the training of investigators who 22 investigate reports of harm under this section. Training must include instruction in 23 federal, state, and local laws and policies of the department related to vulnerable 24 adults, and in investigative techniques. The department may require other appropriate 25 training. 26 (m) In this section, "financial records" include financial records related to the 27 vulnerable adult that are maintained by any person. 28 * Sec. 29. AS 47.24.016(a) is amended to read: 29 (a) If the department determines under AS 47.24.015 that a vulnerable adult is 30 in need of protective services, but the department cannot obtain the vulnerable adult's 31 consent to receive the services because the vulnerable adult is unable to consent or
01 lacks decision making capacity, and has no guardian, conservator, [OR] attorney-in- 02 fact, trustee, or surrogate for health care decisions under AS 13.52.030 to serve as 03 the vulnerable adult's surrogate decision maker, the department may select from the 04 following list, in the order of priority listed, an individual who is willing to be the 05 vulnerable adult's surrogate decision maker for the purpose of deciding whether to 06 consent to the vulnerable adult's receipt of protective services: 07 (1) the vulnerable adult's spouse, unless 08 [(A) THE VULNERABLE ADULT AND THE SPOUSE 09 HAVE SEPARATE DOMICILES; OR 10 (B)] the vulnerable adult or the spouse have initiated divorce, 11 [OR] dissolution, or legal separation proceedings; 12 (2) an individual who lives with the vulnerable adult in a spousal 13 relationship or as a domestic partner and who is 18 years of age or older; 14 (3) a son or daughter of the vulnerable adult who is 18 years of age or 15 older; 16 (4) a parent of the vulnerable adult; 17 (5) a brother or sister of the vulnerable adult who is 18 years of age or 18 older; or 19 (6) a close friend or relative of the vulnerable adult who is 18 years of 20 age or older. 21 * Sec. 30. AS 47.24.016(b) is amended to read: 22 (b) An individual from the list in (a) of this section may not be selected as a 23 surrogate decision maker if 24 (1) the department determines that individual does not possess decision 25 making capacity; or 26 (2) there are allegations that individual is a perpetrator of the undue 27 influence, abandonment, exploitation, abuse, or neglect of the vulnerable adult. 28 * Sec. 31. AS 47.24.016(d) is amended to read: 29 (d) The department may not continue to provide protective services to a 30 vulnerable adult based on the consent of a surrogate decision maker serving under this 31 section or AS 13.52.030 if the department determines that the vulnerable adult has
01 become able to consent or has regained decision making capacity since the surrogate's 02 consent was given. The department may continue protective services to a vulnerable 03 adult who has become able to consent or has regained decision making capacity only 04 if the vulnerable adult consents. 05 * Sec. 32. AS 47.24.017(a) is amended to read: 06 (a) If the department determines under AS 47.24.015 that a vulnerable adult is 07 in need of protective services and [EITHER] the vulnerable adult, the vulnerable 08 adult's guardian, conservator, [OR] attorney-in-fact, trustee, [OR] a surrogate 09 decision maker selected under AS 47.24.016, or a surrogate for health care 10 decisions under AS 13.52.030 consents to receipt of the protective services, and to 11 the extent that resources are available, the department shall ensure that the protective 12 services for the vulnerable adult are provided by the department, or its designee, 13 within 10 working days after the department received the report under AS 47.24.010 14 regarding the undue influence, abandonment, exploitation, abuse, neglect, or self- 15 neglect of the vulnerable adult. However, if circumstances beyond the control of the 16 department or the department's designee make it impossible to provide the protective 17 services within the 10 working days, the department shall ensure that the services are 18 provided as soon as possible after that time. 19 * Sec. 33. AS 47.24.019(c) is amended to read: 20 (c) If a vulnerable adult who has consented to receive protective services, or 21 on whose behalf consent to receive protective services has been given, is prevented by 22 any person [A CAREGIVER, GUARDIAN, ATTORNEY-IN-FACT, OR 23 SURROGATE DECISION MAKER] from receiving those services, the department 24 may petition the superior court for an injunction restraining the person 25 [CAREGIVER, GUARDIAN, ATTORNEY-IN-FACT, OR SURROGATE 26 DECISION MAKER] from interfering with the provision of protective services to the 27 vulnerable adult. 28 * Sec. 34. AS 47.24.050 is amended to read: 29 Sec. 47.24.050. Confidentiality of reports. (a) Investigation reports and 30 reports of the undue influence, abandonment, exploitation, abuse, neglect, or self- 31 neglect of a vulnerable adult filed under this chapter are confidential and are not
01 subject to public inspection and copying under AS 40.25.110 - 40.25.125. However, 02 under [IN ACCORDANCE WITH] this chapter and regulations adopted under this 03 chapter, investigation reports may be used by appropriate agencies or individuals 04 inside and outside the state, in connection with investigations or judicial proceedings 05 involving the undue influence, abandonment, exploitation, abuse, neglect, or self- 06 neglect of a vulnerable adult. 07 (b) The department shall disclose a report of the undue influence, 08 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult if the 09 vulnerable adult who is the subject of the report or the vulnerable adult's guardian, 10 conservator, attorney-in-fact, trustee, or surrogate decision maker consents in 11 writing. The department may not disclose a report of the undue influence, 12 abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult to the 13 vulnerable adult's guardian, conservator, attorney-in-fact, trustee, or surrogate 14 decision maker if that person is an alleged perpetrator of the undue influence, 15 abandonment, exploitation, abuse, or neglect of the vulnerable adult and is being 16 investigated under this chapter. The department shall, upon request, disclose the 17 number of verified reports of undue influence, abandonment, exploitation, abuse, 18 neglect, or self-neglect of a vulnerable adult that occurred at an institution that 19 provides care for vulnerable adults or that were the result of actions or inactions of a 20 public home care provider. 21 * Sec. 35. AS 47.24.130 is amended to read: 22 Sec. 47.24.130. Treatment through spiritual means. This chapter may not be 23 construed to mean that a person is unduly influenced, abused, neglected, self- 24 neglected, vulnerable, unable to consent, abandoned, exploited, or in need of 25 emergency or protective services for the sole reason that the person relies on or is 26 being furnished treatment by spiritual means through prayer alone under [IN 27 ACCORDANCE WITH] the tenets and practices of a church or religious 28 denomination of which the person is a member or adherent, if [PROVIDED THAT] 29 the person consents to the treatment through spiritual means only and the treatment is 30 administered by an accredited practitioner of the church or religious denomination. In 31 this section, "church or religious denomination" has the meaning given to "religious
01 organization" in AS 05.15.690. 02 * Sec. 36. AS 47.24.900(2) is amended to read: 03 (2) "abuse" means 04 (A) the [WILFUL,] intentional, knowing, or reckless 05 nonaccidental [,] and nontherapeutic infliction of physical pain, injury, [OR] 06 mental or emotional distress, or fear, including coercion and intimidation; 07 or 08 (B) sexual assault under AS 11.41.410 or 11.41.420; 09 * Sec. 37. AS 47.24.900(3) is amended to read: 10 (3) "caregiver" means 11 (A) a person who is providing care to a vulnerable adult as a 12 result of a family relationship, or who has assumed some or all responsibility 13 for the care of a vulnerable adult voluntarily, by contract, as an employee of a 14 business that provides care in an adult's home, or by court order; or 15 (B) an employee of an out-of-home care facility who provides 16 care to one or more vulnerable adults; 17 * Sec. 38. AS 47.24.900(4) is amended to read: 18 (4) "decision making capacity" means the ability to understand and 19 appreciate the nature and consequences of a decision and the ability to reach and 20 communicate an informed decision; in this paragraph, "informed decision" 21 includes a decision made by the vulnerable adult that is free from undue 22 influence; 23 * Sec. 39. AS 47.24.900(7) is amended to read: 24 (7) "exploitation" 25 (A) means unjust or improper use of another person or another 26 person's resources for one's own profit or advantage, with or without the 27 person's consent; and 28 (B) includes acts by a person who stands in a position of 29 trust or confidence with a vulnerable adult or who knows or should know 30 that the vulnerable adult lacks the capacity to consent that involve 31 obtaining profit or advantage through undue influence, deception, fraud,
01 intimidation, or breach of fiduciary duty; in this paragraph, "fraud" has 02 the meaning given in AS 13.26.324(1) and (2); 03 * Sec. 40. AS 47.24.900(9) is amended to read: 04 (9) "neglect" means the intentional, knowing, or reckless failure by a 05 caregiver to provide essential care or services or access to essential care or services 06 or to carry out a prescribed treatment plan necessary to maintain the physical and 07 mental health of the vulnerable adult when the vulnerable adult is unable to provide 08 or obtain the essential care or services or to carry out the prescribed treatment 09 plan on the vulnerable adult's own behalf; in this paragraph, "essential care or 10 services" includes food, clothing, shelter, medical care, and supervision; 11 * Sec. 41. AS 47.24.900(11) is amended to read: 12 (11) "protective services" means services that are intended to prevent 13 or alleviate harm resulting from undue influence, abandonment, exploitation, abuse, 14 neglect, or self-neglect and that are provided to a vulnerable adult in need of 15 protection; in this paragraph, "services" ["PROTECTIVE SERVICES"] includes 16 (A) protective placement; 17 (B) applying for or obtaining public benefits; 18 (C) obtaining health care services and supplies; 19 (D) staying financial transactions; 20 (E) petitioning for an ex parte protective order under 21 AS 13.26.209; 22 (F) assisting with personal hygiene; 23 (G) obtaining food and clothing; 24 (H) protection from physical and emotional abuse; 25 (I) obtaining representative payee services; and 26 (J) coordinating protective services; 27 * Sec. 42. AS 47.24.900(15) is amended to read: 28 (15) "unable to consent" means refusal to, or inability to, accept 29 services because 30 (A) the person is an incapacitated person or apparently is an 31 incapacitated person;
01 (B) of coercion by or fear of reprisal from the perpetrator of 02 undue influence, abandonment, exploitation, abuse, or neglect; 03 (C) of dependency on the perpetrator of undue influence, 04 abandonment, exploitation, abuse, or neglect for services, care, or support; or 05 (D) of an inability to perceive that refusal to consent results in 06 an imminent and substantial danger of loss, waste, or dissipation of income 07 or assets, eviction, physical or mental harm to self or others, or death [OR 08 IRREPARABLE HARM TO SELF OR OTHERS]; 09 * Sec. 43. AS 47.24.900(16) is amended to read: 10 (16) "vulnerable adult" means a person 18 years of age or older who, 11 because of incapacity, mental illness, mental deficiency, physical illness or 12 disability, advanced age, chronic use of drugs, chronic intoxication, fraud, 13 confinement, or disappearance [PHYSICAL OR MENTAL IMPAIRMENT], is 14 unable to meet the person's own needs or to seek help without assistance. 15 * Sec. 44. AS 47.24.900 is amended by adding new paragraphs to read: 16 (17) "deception" means creating, reinforcing, or failing to correct a 17 false impression or preventing another person from acquiring information that would 18 affect the person's judgment regarding a transaction; 19 (18) "fiduciary duty" means the duty of a third party who stands in a 20 position of trust or confidence with another person, including a vulnerable adult, to act 21 with due regard for the benefit and interest of that person; 22 (19) "financial institution" means an institution subject to state or 23 federal banking or financial regulations, including 24 (A) a broker-dealer; 25 (B) a commercial bank; 26 (C) a savings bank; 27 (D) a credit union; 28 (E) a premium finance company; 29 (F) a small loan company; 30 (G) a bank holding company; 31 (H) a financial holding company;
01 (I) a trust company; 02 (J) a savings and loan association; 03 (K) a deferred deposit advance licensee; 04 (L) an investment bank; 05 (M) an insurance company subject to regulation by AS 21; 06 (N) a licensee subject to regulation by AS 21; and 07 (O) an investment adviser; 08 (20) "person who stands in a position of trust or confidence" means a 09 person who 10 (A) is a relative by blood or marriage; 11 (B) is a joint tenant or tenant in common; 12 (C) has a legal or fiduciary relationship; or 13 (D) is a person who has been entrusted with or has assumed 14 responsibility for the use or management of the vulnerable adult's assets or 15 income; 16 (21) "undue influence" means the use by a person who stands in a 17 position of trust or confidence of the person's role, relationship, or authority to 18 wrongfully exploit the trust, dependency, or fear of a vulnerable adult to gain control 19 over the decision making of the vulnerable adult, including decision making related to 20 finances, property, residence, and health care. 21 * Sec. 45. The uncodified law of the State of Alaska is amended by adding a new section to 22 read: 23 DIRECT COURT RULE AMENDMENT. Rule 12(h), Alaska Rules of 24 Criminal Procedure, is amended to read: 25 (h) Continuance of Trial. A motion for continuance of a trial date will be 26 granted by the court only for cause shown. In deciding whether to grant the motion, 27 the court shall consider the victim's circumstances and the effect the delay would 28 have on the victim, particularly a victim of advanced age or extreme youth. The 29 court shall place its findings on the record. The presiding judge of a judicial district 30 may require that a visiting or pro tem judge obtain approval from the presiding judge 31 before granting any continuance of trial.
01 * Sec. 46. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 DIRECT COURT RULE AMENDMENT. Rule 45(a), Alaska Rules of 04 Criminal Procedure, is amended to read: 05 (a) Priorities in Scheduling Criminal Cases. The court shall provide for 06 placing criminal proceedings upon appropriate calendars. Preference shall be given to 07 criminal proceedings and the trial of defendants in custody shall be given preference 08 over other criminal cases. The court shall consider the circumstances of the victim, 09 particularly a victim of advanced age or extreme youth, in setting the trial date. 10 Trial dates in criminal cases in the superior court shall be set at the time of 11 arraignment, and if a trial date is thereafter vacated, the trial shall be immediately set 12 for a date certain. 13 * Sec. 47. The uncodified law of the State of Alaska is amended by adding a new section to 14 read: 15 INDIRECT COURT RULE AMENDMENTS. (a) AS 13.26.209(a) - (g), enacted by 16 sec. 9 of this Act, have the effect of amending Rule 17, Alaska Rules of Probate Procedure, 17 relating to conservatorships and protective proceedings, by allowing ex parte orders to be 18 issued related to protecting the assets of a person otherwise subject to AS 13.26.165 from 19 financial exploitation. 20 (b) AS 13.26.209(h), enacted by sec. 9 of this Act, has the effect of amending Rule 9, 21 Alaska Rules of Administration, by requiring that filing fees may not be charged for a petition 22 for an ex parte protective order under AS 13.26.209(a), enacted by sec. 9 of this Act. 23 (c) AS 13.26.207, enacted by sec. 9 of this Act, has the effect of amending Rule 77, 24 Alaska Rules of Civil Procedure, by requiring a hearing within 72 hours of the filing of a 25 petition for the appointment of a temporary conservator. 26 * Sec. 48. The uncodified law of the State of Alaska is amended by adding a new section to 27 read: 28 APPLICABILITY. Sections 3 - 5, 45, and 46 of this Act apply to offenses committed 29 on or after the effective date of this Act. 30 * Sec. 49. The uncodified law of the State of Alaska is amended by adding a new section to 31 read:
01 REVISOR'S INSTRUCTIONS. The revisor of statutes is instructed to change the 02 catch line of 03 (1) AS 47.24.010 from "Reports of harm" to "Persons required to report; 04 reports of harm"; 05 (2) AS 47.24.013 from "Reports of abandonment, exploitation, abuse, neglect, 06 or self-neglect of vulnerable adults in out-of-home care facilities" to "Reports of undue 07 influence, abandonment, exploitation, abuse, neglect, or self-neglect of vulnerable adults in 08 out-of-home care facilities." 09 * Sec. 50. The uncodified law of the State of Alaska is amended by adding a new section to 10 read: 11 CONDITIONAL EFFECT. (a) AS 13.26.209(a) - (g), enacted by sec. 9 of this Act, 12 take effect only if sec. 47(a) of this Act receives the two-thirds vote of each house required by 13 art. IV, sec. 15, Constitution of the State of Alaska. 14 (b) AS 13.26.209(h), enacted by sec. 9 of this Act, takes effect only if sec. 47(b) of 15 this Act receives the two-thirds vote of each house required by art. IV, sec. 15, Constitution of 16 the State of Alaska. 17 * Sec. 51. This Act takes effect July 1, 2011.