Legislature(2015 - 2016)BELTZ 105 (TSBldg)
04/08/2015 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing: Alaska Public Offices Commission | |
| HB5 | |
| SB76 | |
| SJR15|| SCR4 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 5 | TELECONFERENCED | |
| + | SCR 4 | TELECONFERENCED | |
| SJR 15 | |||
| + | SB 76 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 5-CONSERVATOR OF PROTECTED PERSONS
1:50:33 PM
CHAIR MCGUIRE announced the consideration of HB 5. "An Act
relating to the persons who may be appointed conservators of a
protected person." She asked for a motion to adopt the proposed
committee substitute (CS).
1:50:47 PM
SENATOR COGHILL motioned to adopt the proposed committee
substitute for HB 5, labeled 29-LS0032\N, as the working
document.
CHAIR MCGUIRE found no objection and announced that version N
was before the committee.
1:51:16 PM
MS. SALTZMAN reviewed the changes in the CS.
Section 1 broadens the scope of who could be appointed a
conservator and a guardian in cases of a conflict of interest.
Page 1, lines 6-8, deletes the language "the person is the
spouse, adult child, parent, or sibling of the incapacitated
person and".
Section 2 adds a new subsection [g] to AS 13.26.145 on page 2,
lines 1-4, that provides an extra level of due diligence by the
court relating to the nature and scope of the conflict of
interest.
Section 3 on page 2, lines 7-8, deletes the language "the person
is the spouse, adult child, parent, or sibling of the
incapacitated person and".
Section 4 adds a new subsection [h] to AS 12.26.210 on page 2,
lines 11-15, that provides an extra level of due diligence by
the court relating to the nature and scope of the conflict of
interest.
She noted that the guardianship and conservator statutes mirror
one another so both had to be amended with the same language.
This work was done working closely with the sponsor and the
Department of Law.
CHAIR MCGUIRE thanked Ms. Saltzman for her work.
1:55:18 PM
ALEX HILDEBRANDT, Assistant District Attorney, Civil Division,
Human Services Section, Department of Law (DOL), introduced
himself.
SENATOR WIELECHOWSKI expressed the concern that removing the
language in Sections 1 and 3 could potentially create a cottage
industry for professionals and businesses to act as conservators
and charge exorbitant amounts.
MR. HILDEBRANDT pointed out that the option to have a
professional conservator or guardian already exists. Banks and
trusts generally serve in this capacity, but in Anchorage there
are also private parties that have taken on the responsibility.
He opined that the court oversight will prevent exploitation of
the vulnerable adults.
SENATOR WIELECHOWSKI asked if this would allow someone with a
potential conflict of interest to act as a conservator, and if
he is comfortable that the courts will be able to adequately
protect the vulnerable people.
MR. HILDEBRANDT acknowledged that the Department of Health and
Social Services (DHSS) has that concern about changing the
language. The hope is that the new subsections in the
guardianship and conservatorship statutes will require the court
to think about and provide written findings about whether or not
a conflict exists and whether it is or is not substantial. The
situation of an unrelated paid care provider serving as a
conservator would likely rise to the level of a substantial
conflict.
Based on his experience doing these hearings, he believes the
court would be reluctant to appoint a direct service provider.
This language intentionally mirrors the Uniform Probate Code,
which prevents direct service providers and things like a long-
term care home from being a guardian or conservator for finances
and other aspects of a person's life.
2:00:01 PM
SENATOR WIELECHOWSKI asked to hear from Department of Health and
Social Services (DHSS).
SENATOR MICCICHE asked if a spouse or step child from a former
marriage would be recognized as a relative or friend of an
incapacitated person.
MR. HILDEBRANDT responded that AS 13.26.145(d) lists the people
qualified for appointment as guardian and it includes a spouse.
SENATOR COGHILL offered his understanding that the courts are
already familiar with determining potential conflict,
substantial interest, and best interest.
MR. HILDEBRANDT agreed that those findings are already in
statute as things the court should consider. He pointed out that
this will require the court to also make a written finding.
SENATOR COGHILL asked how the court will vet the appointments.
MR. HILDEBRANDT responded that, based on his experience, the
group of people who could be appointed as a guardian or
conservator is not expanding. What is expanding is the group of
people who could be appointed with a conflict.
SENATOR COGHILL said he's trying to understand how it will play
out in court, but he generally likes the idea.
2:06:55 PM
DEB ETHERIDGE, Deputy Director, Division of Senior and
Disabilities Services, Department of Health and Social Services
(DHSS), introduced herself.
SENATOR WIELECHOWSKI asked if she had concerns with the bill.
MS. ETHERIDGE said the bill deviates from the [Uniform Probate
Code] and other standards, but DHSS is more comfortable with the
current committee substitute because it provides additional
protection by requiring the court to make the determination.
SENATOR WIELECHOWSKI asked the rationale for not allowing people
that are not the spouse, adult child, parent, or sibling to be
appointed as guardian or conservator of an incapacitated person.
MS. ETHERIDGE explained that it's considered a significant
conflict when a person can pay him or herself with money they're
controlling for somebody who is incapacitated or vulnerable.
SENATOR WIELECHOWSKI expressed concern with the way the statute
is written because it doesn't clarify what constitutes a
substantial conflict.
MS. ETHERIDGE said she couldn't alleviate the concern, but it
appears that the court could identify it as a substantial
conflict of interest if a person would be paying him or herself.
SENATOR WIELECHOWSKI asked what percentage of the people who
have applied to be a conservator in the last couple of years are
spouses, adult children, parents, or siblings.
MS. ETHERIDGE said she didn't have access to that information
but about 52 percent of the guardianship and conservatorship
reports for adult protective services are related to a family
member. She clarified that a report to adult protection is
mandatory if there is a suspicion that exploitation may be
occurring, but it doesn't necessarily mean that maltreatment or
financial exploitation has occurred.
SENATOR WIELECHOWSKI asked what oversight the court has after it
allows someone who has a conflict to watch over a vulnerable or
incapacitated person.
MS. ETHERIDGE replied there are annual reports and anyone can
file a request for a review of a guardian or conservator.
2:12:10 PM
SENATOR MICCICHE asked how many of the 52 percent she referenced
are compensated.
MS. ETHERIDGE said she doesn't have that information. Responding
to a further question, she explained that adult protective
services receives allegations about the use of the vulnerable
adult's funds that are not related to their needs. Those
allegations are investigated.
SENATOR MICCICHE asked if the conflict is that they're being
compensated for the service and they're paying themselves.
MS. ETHERIDGE replied DHSS gets allegations about using funds
for other than the needs of the vulnerable adult.
CHAIR MCGUIRE commented on the protections that are embedded in
other areas of the law.
2:14:04 PM
SENATOR WIELECHOWSKI asked how many claims DHSS receives in a
year about people who are taking advantage of a vulnerable
adult.
MS. ETHERIDGE reported that in FY2014 DHSS received 1,069
reports of self-neglect, 682 reports of neglect, 492 reports of
financial exploitation, 79 reports of exploitation of a person,
194 reports of mental abuse, 208 reports of physical abuse, 51
reports of sexual abuse, and 64 reports of abandonment. In
FY2014 DHSS received 535 allegations of financial exploitation,
investigated 492, and substantiated 20 percent of the
allegations.
SENATOR WIELECHOWSKI asked for a copy of the list.
MS. ETHERIDGE agreed.
2:16:12 PM
SENATOR MICCICHE asked if the department reviews cases as
opposed to investigating complaint-driven reports.
MR. HILDEBRANDT explained that adult protective services doesn't
automatically conduct reviews, but anyone can file asking for
one. The division is required to provide a financial report
every year and a court-appointed third party is appointed every
three years to review and assess the guardianship or
conservatorship.
2:17:45 PM
DARIN COLBRY, representing himself, Anchorage, Alaska, testified
in support of HB 5. He advised that he contacted the sponsor
about introducing the bill. He and his wife both have
conservators. His father is his conservator and his wife would
like her father-in-law to be her conservator too, but that's
prohibited because it's a substantial conflict of interest.
CHAIR MCGUIRE stated that the legislature and this committee
expect the courts to look closely and analyze the situation
carefully before appointing someone who has a substantial
conflict of interest as a guardian or conservator. The intent is
to allow people who need a conservator to have as many options
as possible.
2:22:02 PM
NANCY MEADE, General Counsel, Administrative Staff, Alaska Court
System, said she would relay that to the court but with the
understanding that judges and other judicial officers already
take very seriously the appointments of conservators and
guardians. She explained the process to become a conservator for
financial decisions or a guardian for medical decisions.
Addressing Senator Micciche's question, she advised that the
order says that someone who is not a professional company that
provides conservatorship or guardianship services on a regular
basis is considered a relative or friend and therefore must take
the training program. Those classes are offered by both the
court and executive branch.
MS. MEADE pointed out that in about 40 percent of the cases that
are filed for a guardianship or conservatorship, the court
determines that the person is not incapacitated so they do not
need protection. She said the court doesn't collect data about
how often an applicant has one of the conflicts of interest
identified in AS 13.26.210(b), but judges she polled did not
think it was extremely common. Family members usually don't have
a conflict of interest, although they often take payment from
the funds of the protected person.
Addressing a question from the previous hearing, she explained
that the power of attorney is a private contract that has to be
entered when a person has the legal capacity to enter a
contract. It can be limited in time and scope and doesn't
necessarily preclude the person from acting for him or herself
during the life of the contract. A conservatorship is a court
document that says a person is permitted to make financial
decisions for someone who is not able to make decisions for him
or herself. She noted that adult children often pay bills for
their parents and only get a conservatorship if they're
challenged by a bank or other financial entity.
2:27:33 PM
SENATOR WIELECHOWSKI asked if the requirement in Section 4 for
the court to make written findings will potentially impose a
fiscal burden on the court.
MS. MEADE said she didn't anticipate a fiscal impact, although
both Section 2 and Section 4 will add to the court's workload.
She explained how it potentially would work to comply with the
statute and ensure that if an appointment is made under
subsection (c) that everyone has thought about it and made those
best-interest findings.
SENATOR COGHILL asked if in Section 4 the conflict of interest
on page 2, line 15, should be described as a perceived conflict.
MS. MEADE replied her reading is that the wording is adequate
and appropriate. A conflict of interest necessarily exists for
subsection (h) to apply.
2:30:02 PM
CHAIR MCGUIRE closed public testimony and solicited a motion.
2:30:20 PM
SENATOR COGHILL motioned to report the Senate CS for HB 5 from
committee with individual recommendations and attached zero
fiscal note.
2:30:51 PM
SENATOR WIELECHOWSKI said he wouldn't object to moving the bill
but wanted his concerns on the record, because this is patching
a law that is very outdated when it needs a comprehensive
overhaul. He suggested that the sponsor may want to look at that
for next year.
2:32:16 PM
CHAIR MCGUIRE announced that without objection SCS HB 5(JUD) is
reported from the Senate Judiciary Standing Committee.