Legislature(2015 - 2016)CAPITOL 120
02/11/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB5 | |
| HB79 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 79 | TELECONFERENCED | |
| *+ | HB 5 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 5-CONSERVATOR OF PROTECTED PERSONS
1:06:59 PM
CHAIR LEDOUX announced that the first order of business would be
HOUSE BILL NO. 5 "An Act relating to the persons who may be
appointed conservators of a protected person."
1:07:27 PM
CECILE ELLIOTT, Staff, Representative Mike Hawker, Alaska State
Legislature, stated that HB 5 expands the definition of
conservator under AS 13.26.210. She explained that under
certain statutes certain criteria prohibits a person from being
appointed conservator unless they are a relative. However, she
noted, the list of relatives is specific to spouse, adult child,
parent, or sibling, thereby excluding other relatives. House
Bill 5 expands the definition to an adult related by blood,
marriage or adoption, allowing for greater control in making
decisions in the best interests of their family. She advised
this statutory limitation was pointed out by Darin Colbry, whose
desire is to be conservator for his daughter-in-law except was
thwarted by current statute. She offered that the judicial
process is not changed by the legislation in appointing a
conservator, or weakens the court's authority to act in the best
interest of the protected person. She conveyed the bill is
supported by the Alaska Commission on Aging.
1:10:42 PM
REPRESENTATIVE CLAMAN surmised that the proposed bill is to
remove the language "the spouse, adult child, parent, or
sibling" and replace it with "an adult related by blood,
marriage, or adoption." He said that within the definition
section there is no definition of those three terms, but that he
believes the four terms being deleted are defined. He
questioned whether there is a definition being incorporated, and
if so, where.
MS. ELLIOTT deferred to the drafter, Terry Bannister.
1:11:33 PM
TERRY BANNISTER, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, responded that she does
not believe there are definitions of the new terms in the
legislation at this time.
1:12:58 PM
REPRESENTATIVE CLAMAN noted that in todays' legal environment,
the definition of marriage is receiving a tremendous amount of
litigation, and he asked why Ms. Bannister elected to use the
word "marriage," in that it is an undefined term. He surmised
the goal for this legislation is to expand the scope of people
recognized as reasonable people to be considered a conservator.
MS. BANNISTER voiced that at least two people [in Legislative
Legal and Research Services] worked on the [drafting of HB 5].
She advised she does not recall choosing those terms, however,
there is an interpretation requirement. She offered that she
would tend to interpret "by marriage" as someone who is related
through the person who is married.
REPRESENTATIVE CLAMAN pointed out that "adult related by blood"
appears to be a term with the potential for ambiguity and
questioned if thought was given for more clarity for that
definition.
MS. BANNISTER reiterated that she did not prepare that
particular item and "it could certainly be clarified if you
wanted to clarify it. We always recommend clarifying anything
that is ambiguous."
1:14:42 PM
REPRESENTATIVE GRUENBERG noted the law was initially enacted in
1972, and amended a number of times. He questioned whether,
when it was enacted, it was part of the Uniform Probate Code.
MS. BANNISTER advised she assumed so but she would have to
double check.
1:15:30 PM
REPRESENTATIVE GRUENBERG questioned if anyone had reviewed the
Annotated Version of the Uniform Probate Code to determine the
interpretation of other courts with this subsection.
MS. BANNISTER advised she has not reviewed it.
MS. ELLIOTT remarked she is aware it is from 1972, and was
proposed in 1994, but believes the recommendations of the
Uniform Probate Code were not adopted. However, she stated, she
could not expounded on Representative Gruenberg's question.
1:16:19 PM
REPRESENTATIVE GRUENBERG advised he would like an answer to this
question as he does not know why the subsection was drafted the
way it was drafted. He posited there is no reason to limit
subsection (c) to a spouse, adult child, parent or sibling. The
only issue should be that the court determines the potential
conflict of interest in (b) is not substantial and it should not
make a difference who the person is as long as there is no
conflict of interest. He suggested cutting the language and
allowing a sister-in-law, brother-in-law, cousin-in-law, as long
as there is no conflict of interest.
1:17:58 PM
MS. ELLIOTT advised the sponsor defers to the will of the
committee on that.
1:18:10 PM
REPRESENTATIVE KELLER referred to the indeterminate fiscal note
and noted it is puzzling and requested the rationale because it
reads: "However, expanding the number of individuals exempt from
prohibition from appointment as conservator may increase the
number of vulnerable adults who become victims of financial
abuse and exploitation." He questioned how the call could be
made between the numbers of extra options for vulnerability
against that which may be avoided because the court has a
broader choice in selection. The Department of Health & Social
Services (HESS) will likely have input if the language is
removed as has been suggested. He advised he intends to make a
motion, as the bill now stands, to eliminate the indeterminate
fiscal note and go back to a zero fiscal note.
1:20:07 PM
DEB ETHRIDGE, Deputy Director, Central Office, Division of
Senior and Disabilities Service, Department of Health & Social
Services, answered that the Division of Senior and Disabilities
Services submitted an indeterminate fiscal note because it
anticipates an increased pool and opportunity for more
conservators, and it also realizes there is a potential for more
conflicts of interest. Essentially, the bill expands the number
of people with a potential conflict of interest, and because a
person is a conservatee they are automatically a vulnerable
adult. She pointed out that the division could see people with
have a conflict of interest, or a provider, be the conservator,
thereby causing an increase in numbers of maltreatment reports.
She stipulated she was not saying there would be an increase in
maltreatment, just numbers of reports.
1:21:15 PM
REPRESENTATIVE KELLER questioned whether that would be an extra
burden on the court in that the court would have a broader
spectrum of people they could pick from, and presumably in that
broader spectrum there could be both sides of the issue. There
may be the option of appointing someone more responsible or
honest with the broader spectrum of choice, he stated.
1:21:39 PM
CHAIR LEDOUX asked whether one of the categories of spouse,
adult child, parents, or sibling, had been eliminated would
there have been a negative fiscal note.
1:21:54 PM
MS. ELLIOTT answered that the division cannot anticipate the
numbers of maltreatment reports that will come in and cannot put
an estimate on that issue. She related that the division does
know with the conflict of interest there is more potential or
less potential.
1:22:13 PM
CHAIR LEDOUX reiterated her question of whether the division
would have given the committee a negative fiscal note.
1:22:18 PM
MS. ELLIOTT responded that she can't answer that question.
1:22:22 PM
CHAIR LEDOUX advised she is still very uncomfortable with this
fiscal note.
1:22:55 PM
REPRESENTATIVE CLAMAN commented that he shares concerns
regarding the fiscal note and assessed the legislation would
mean an in-law could be appointed as a conservator, whereas
today an in-law could not be appointed. He asked whether there
is evidence that in-laws are more likely to take advantage of
seniors than people related by blood.
MS. ELLIOTT responded that an in-law could become a conservator
barring a condition or conflict of interest. She remarked that
within the new language there is an exception so there could be
a conflict of interest. She explained the division knows that
within the percentage of financial exploitation allegations made
to Adult Protection, approximately 45-47 percent involve family
members as the alleged perpetrator.
REPRESENTATIVE CLAMAN asked whether the 45-47 percent of family
members investigated suggests the legislation should be looking
outside the family for more conservators than inside the family.
MS. ELLIOTT responded the division does not have an opinion as
to whether a family member would or would not perpetrate
financial exploitation. She remarked that her prior response
was regarding general financial exploitation reports, not by a
conservator, that almost half are by family members.
1:25:33 PM
REPRESENTATIVE CLAMAN assessed that being a family member does
not prevent one from being accused of exploiting a senior.
MS. ELLIOTT responded "No, it does not."
1:26:29 PM
REPRESENTATIVE GRUENBERG [noted that AS 13.26.210(b) read]:
(b) The court may not appoint a person to be a
conservator of a protected person if the person
(1) provides, or is likely to provide during the
conservatorship, substantial services to the
protected person in a professional or business
capacity, other than in the capacity of
conservator;
(2) is or is likely to become, during the
conservatorship, a creditor of the protected
person, other than in the capacity of
conservator;
(3) is likely to have, during the
conservatorship, interests that may conflict with
those of the protected person; or
(4) is employed by a person who would be
disqualified under (1) - (3) of this subsection.
REPRESENTATIVE GRUENBERG determined that (3) is what the
division is getting into as the others are subsections of
examples of people who may have conflicts of interest. He
advised that subsection [4] is whether the person is an
employee. He surmised the simplest way of cutting the Gordian
Knot is to say the court may not appoint a person who is likely
to have, during the conservatorship, interests that may conflict
with the protected person, or be employed by "somebody like
that."
1:28:05 PM
DARIN COLBRY advised that his father is his conservator, and his
wife's conservator is a family friend. He said he preferred his
father is assigned as conservator for both of them. He
explained that they live with his parents, his parents are aware
of their needs and finances, and he and his wife's finances
could be together rather than separate. Previously, the court
deemed that his father could not be his wife's conservator
because his wife lives with his parents, and that his parents
are basically rental property owners because they are renting to
Mr. Colbry and his wife.
CHAIR LEDOUX closed public testimony after ascertaining no one
further wanted to testify.
1:30:05 PM
REPRESENTATIVE GRUENBERG remarked he would like to take a brief
period of time to check with the Uniform Commissioners to
understand why [the statute] was drafted in this manner as it
appears cumbersome.
1:30:45 PM
CHAIR LEDOUX advised HB 5 would be held over. She requested Ms.
Elliott to work with Representative Gruenberg.
CHAIR LEDOUX suggested to Ms. Ethridge that the division
reconsider its fiscal note.
1:31:41 PM
The committee took an at-ease from 1:31 to 1:34 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB05.pdf |
HJUD 2/11/2015 1:00:00 PM |
HB 5 |
| HB05 Letter of support - AoCA.pdf |
HJUD 2/11/2015 1:00:00 PM |
HB 5 |
| HB05 Fiscal Note.pdf |
HJUD 2/11/2015 1:00:00 PM |
HB 5 |
| HB05 Fiscal Note-Law.pdf |
HJUD 2/11/2015 1:00:00 PM |
HB 5 |
| HB79 Draft Proposed CS ver P.pdf |
HJUD 2/11/2015 1:00:00 PM |
HB 79 |
| HB79 Supporting Documents - Letter McCard.txt |
HJUD 2/11/2015 1:00:00 PM |
HB 79 |
| HB79 Supporting Documents - CRCL Feb-10-2015.pdf |
HJUD 2/11/2015 1:00:00 PM |
HB 79 |
| HB05 Sponsor Statement.pdf |
HJUD 2/11/2015 1:00:00 PM |
HB 5 |
| HB05 Fiscal Note-HSS.pdf |
HJUD 2/11/2015 1:00:00 PM |
HB 5 |
| HB79 SECTIONAL ANALYSIS - ver P.pdf |
HJUD 2/11/2015 1:00:00 PM |
HB 79 |