Legislature(2015 - 2016)CAPITOL 120
02/13/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB8 | |
| HB79 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 8 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| *+ | HB 83 | TELECONFERENCED | |
| += | HB 79 | TELECONFERENCED | |
HB 8-POWERS OF ATTORNEY
1:06:43 PM
VICE CHAIR KELLER announced that the first order of business
would be HOUSE BILL NO. 8 "An Act relating to powers of attorney
and other substitute decision-making documents; relating to the
uniform probate code; and providing for an effective date."
1:07:11 PM
REPRESENTATIVE SHELLEY HUGHES spoke as prime sponsor on HB 5 and
advised the intent is to protect seniors and individuals at
vulnerable stages of their lives from fraud and abuse in power
of attorney relationships. She offered that the Alaska
Commission on Aging, American Association of Retired Persons
(AARP), and the Association of Mature American Citizens (AMAC),
have communicated with her in support of this legislation. She
described "principle" as the individual granting power, and
"agent" as the individual being granted power, as two new
definitions. She further described "jargon" such as "hot
powers" wherein an individual must seriously consider granting
power. The intention of this legislation includes fewer
investigations, lawsuits, and court proceedings focusing around
[fraud and abuse] and that sometimes the power of attorney for a
child or senior or a [vulnerable individual] moves across state
lines and this legislation improves the undertaking for the
principle and the agent, she contends.
1:11:56 PM
The committee took an at-ease from 1:11 p.m. to 1:13 p.m., due
to technical difficulties.
1:13:30 PM
REPRESENTATIVE LYNN requested a legal definition of a senior.
1:14:39 PM
GINGER BLAISDELL, Staff, Representative Shelley Hughes, Alaska
State Legislature, advised that this legislation is not
necessarily solely for seniors but is used more often when an
individual gets older. The legislation could also be used for
someone going into surgery or cancer treatments where they know
it will takes a few months and would like someone to handle
their financial affairs. She opined that the powers could be
for anyone of any age.
1:15:10 PM
REPRESENTATIVE LYNN questioned whether the word "senior" is used
in HB 8, and if so, what is the definition.
MS. BLAIDELL replied that she would check.
1:15:28 PM
REPRESENTATIVE GRUENBERG asked if an individual from the Uniform
Commission would be available to testify.
MS. BLAISDELL, in response to Representative Gruenberg, advised
that Deborah Behr, Uniform Law Commissioner, is in the audience.
REPRESENTATIVE GRUENBERG inquired whether anyone from the
Chicago staff is available.
MS. BLAISDELL answered "Not anybody from Chicago."
1:16:04 PM
REPRESENTATIVE CLAMAN questioned whether Alaska enacted the
Uniform Probate Code, in the 60's, which had power of attorney
provisions in it.
REPRESENTATIVE HUGHES responded that the Uniform Probate Code
was enacted in 1972.
1:16:56 PM
REPRESENTATIVE CLAMAN indicated there was recognition within all
states to update their Probate Code as to powers of attorney.
He questioned whether [HB 8] is an effort to be consistent on a
national level that has been perceived to be best practices.
REPRESENTATIVE HUGHES responded "yes" and "no" because the items
were reviewed one-by-one and included those that made sense, but
did not adopt all of the recommendations. Therefore, the
Uniform Law Commission did not provide a letter of support for
HB 8, but it does improve the ability to work across state
lines.
REPRESENTATIVE CLAMAN asked whether Representative Hughes would
be identifying the areas in which the recommendation is to not
follow the Uniform Law Commission's recommendations.
REPRESENTATIVE HUGHES offered that she will do her best to point
out where the legislation is in alignment and what they did not
adopt.
1:18:29 PM
REPRESENTATIVE GRUENBERG remarked it would be helpful to him
that someone from the Chicago staff of the Uniform Commissioners
be involved.
1:19:54 PM
MS. BLAISDELL paraphrased the sectional analysis as follows
[original punctuation provided]:
Section 1, Pg 1, ln 4. Replaces the current definition
of an "agent" The term attorney-in-fact appears
similar but should be distinguished from the term
attorney-at-law. An attorney-at-law in the United
States is a lawyer - someone licensed to practice law
in a particular jurisdiction. The Uniform Power of
Attorney Act and this bill employ the term Agent. As
an Agent, an attorney-in-fact is a fiduciary for the
principal, so the law requires an attorney-in -fact to
be completely honest with and loyal to the principal
in their dealings with each other. An Agent would be
held to the same level of honesty.
Section 2, Pg 1, ln 9. Corrects the definition of
"state" by including the United States Virgin Islands
technical.
Section 3, Pg 1, ln 13. Adds new definitions for
"durable", "electronic", "power of attorney",
"principal", "record" and "sign" as they pertain to
this act. It was brought to our attention that a
signature or initials could be quite difficult for
someone with arthritis. Under this definition, a
variety of ways for a person to "sign" would be
allowed.
Section 4, Pg 2, ln 17. In this bill an Agent is the
person granted powers and the finances belong to the
Principal. AS 13.26.326 Agent's acceptance and
liability In the event the Agent violates a provision
in this act, the Agent must restore the value of the
property and reimburse any fees/costs paid associated
with the liability. Section 4, Pg 2, ln 28. Agent's
duties clearly defines the responsibilities of
managing the Principle's financial best interests. An
Agent acting in good faith will not be held liable if
the Principle's plan cannot be preserved. Section 4,
Pg 4, ln 22. AS 13.26.328 Acceptance of Power of
Attorney This section pertains to a third party
accepting the responsibilities of an Agent - such as
an accounting firm, family lawyer, court appointed
person, or others. Section 4, Pg 6, ln 10. AS
13.26.329 Termination of Power of Attorney; agent's
resignation notice. Identifies the circumstances when
a Power of Attorney is terminated.
Section 5, Pg 7, ln 1. AS 13.26 amended to recognize a
power of attorney executed in another state. A power
of attorney executed in another state is valid in
Alaska if the POA complied with the issuing
jurisdiction's law or requirements of the military.
Section 6, Pg 7, ln 9. AS 13.26.332 Statutory Form
Power of Attorney This section edits the actual form
recognized by the State of Alaska. The most
substantive change to the form is requiring the
Principle to mark a box for each category. This action
will provide the opportunity for the principle to
award POA in whole or part to an Agent(s). The form
also provides optional grant of specific authority to:
Create, amend, revoke, or terminate a trust; make a
gift; create or change beneficiaries; or revoke a
transfer on death deed.
Section 7, Pg 11, ln 10. Sec 13.26.335 Additional
optional provisions Changes the term "attorney-in
fact" to Agent.
Section 8, Pg 12, ln 8. Sec 13.26.341 applicability of
provisions Changing the terms for consistency; "mark"
and "incapacity."
Section 9, Pg 13, ln 2, Pg 14, ln 3. "revoke, create
or modify a trust" Removes the option to "revoke,
create or modify a trust" in this section. Revoke,
Create or Modify a Trust is now.
Section 10-11, Pg 14, ln 27, Pg 15, ln 26.
Section 11, Pg 16, ln 22, Pg 18, ln 5. A separate
selection on the POA form.
Section 12, Pg 19, ln 19. AS 13.26.344(d) Allows the
Agent to use credit and debit cards, and electronic
transactions.
Section 13, Pg 23, ln 4. (10-14) adds additional
responsibilities and clarification responsibilities of
the Agent to manage the affairs of the Principal's
business(es):
(10) allows the Agent to operate, buy, sell, etc.
the Principal's interest in a business
(11) allows the Agent to put additional capital
into a business
(12) allows the Agent to participate in
reorganization of a business
(13) sell or liquidate the business
(14) establish the value under a buy-out
agreement.
Section 14, Pg 25, ln 18. (13) exercise investment
powers available under a contract of insurance or
annuity. Identifies an additional function of managing
the Principal's insurance or annuity.
Section 15, Pg 25, ln 24. AS 13.26.344(h) Repealed
section with respect to gifts and replaced with
instructions regarding retirement plans. Provides the
Agent with all powers to effectively manage the
Principal's retirement plan(s).
Section 16, Pg 26, ln 6. AS 13.26.344(j) amends
section regarding personal relationships May or May
not include gifts. Requires the Agent to maintain the
customary standard of living of the spouse, children,
and other dependents of the principal. Includes court
ordered financial support. Acts as the Principal's
personal representative under HIPAA rules.
Section 17, Pg 28, ln 28. AS 13.26.344(k) amends
section regarding government or military service.
Includes civil service. Includes allowance and
reimbursement for transportation of the individuals.
Also allows the Agent to enroll in, apply for, select,
reject, change, amend or discontinue a program.
Section 18, Pg 30, ln 7. AS 13.26.344 adds a new
subsection: (q) specific authority with respect to
gift transactions. This is an optional designation on
the POA Form where a Principal can designate the Agent
to have the powers to designate gifts.
Section 19, Pg 31, ln 15. AS 13.26.347 is amended to
relieve an Agent of liability for breach of duty
unless is was committed dishonestly. For example: if
the Agent makes a late payment on behalf of the
Principal, the Agent would not be held liable for that
action. IF the Agent purposefully paid for
unauthorized expenditures from the estate, or
consistently made late payments and the late fees were
significant, the courts could determine that the Agent
did not act in the best interest of the Principal and
could impose a mediating action.
Section 20, Pg 32, ln 6. AS 13.26.350 amends this
section replacing the term "disability or
incompetence" to "incapacity". The definition of
"incapacity" is on page 36 of this act.
Section 21, Pg 33, ln 2. AS 13.26.353 (a) repealed and
reenacted: establishing the incapacity of an
individual. Clarifies the grounds for determining
incapacity of an individual and includes additional
provisions such as if the Principal is missing,
detained, unable to return to the United States.
Section 22, Pg 33, ln 24. Technical amendment Inserts
the term Agent and updates statutory reference.
Section 23, Pg 33, ln 31. AS 13.26 adds new sections:
Sec. 13.26.354 Judicial relief. Sec 13.26.355
Relationship to other laws. Judicial relief allows
specified individuals to petition the court regarding
the Agent's conduct. This act does not supersede any
other law applicable to a financial institution or
other entity; allows for electronic signatures.
Section 24, Pg 35, ln 3. Technical amendment inserts
the terms Agent, incapacity, and Power of Attorney.
Section 25, Pg 35, ln 23. Technical amendment Removes
term Attorney-in-Fact.
Section 26, Pg 35, ln 28. AS 13.26 adds new
definitions: "benefits from government programs or
civil or military service," "good faith,"
"incapacity," "retirement plan."
Section 27, Pg 36, ln 30. Adds a new chapter to read:
Recognition of Substitute Decision-Making Documents.
Sec 13.28.010 Validity of substitute decision making
document. Requires that the state of Alaska deem
decision-making documents valid for a Principal as
long as the documents were executed in compliance with
the law from the jurisdiction from which they come. A
photocopy or electronically transmitted copy of an
original has the same effect as the original. Sec
13.28.020 Meaning and effect of substitute decision-
making document. The meaning and effect of the
document and the authority of the decision maker are
determined by the law of the jurisdiction where the
document was executed. Sec 13.28.030 Reliance on
substitute decision making document. A person in good
faith accepts the document without the knowledge that
the document is genuine, valid and in effect. A person
may request that the document be translated and may
obtain an opinion of counsel regarding the document.
Sec 13.28.040 Obligation to accept substitute
decision-making document. Defines circumstances where
a person should or may not accept a document. If the
document is deemed to be genuine, a person who refuses
to accept a document is subject to court action. Sec
13.28.050 Remedies under other law Remedies do not
abrogate and right or remedy under a law of this
state. Sec 13.28.060 Uniformity of application and
construction. When applying a uniform law, Alaska may
edit the language to "fit" Alaska law. Sec 13.28.070
Relation to Electronic Signatures in Global and
National Commerce Act. This act does not supersede Sec
13.28.090 Definitions. "Decision maker," "good faith,"
"health care," "person," "personal care," "property,"
"record," "substitute decision-making document." Sec
13.28.095 Short Title. Uniform Recognition of
Substitute Decision Making Documents Act.
Sec 28, Pg 40, ln 8. AS 13.26.338(a) repealed AS
13.26.353(c) repealed Principal no longer draws a line
through the sections that he/she DOES NOT want the
Agent to manage. Requirement for a person to accept
the POA or could receive a $1,000 civil penalty plus
actual costs.
Sec 29, Pg 40, ln 9. Applicability.
Sec 30, Effective Date January 1, 2016.
1:27:42 PM
MS. BLAISDELL advised that page 9 is a new section "Grant of
Specific Authority (Optional)." There is no requirement for an
individual to select any of the items, and noted if the
individual does not select either "yes" or "no," it is
automatically "no." She described "hot powers" as a broad and
more impactful transaction an individual would perform. The
first one is create, remand, revoke or terminate a trust which,
she offered, is a significant responsibility someone may or may
not want to give their agent. She offered that making a gift is
very broad, such as, buying a raffle ticket for a student, or a
gift to a charity of many thousands of dollars, or to a family
member, or to themselves. She described the changing of a
beneficiary designation as a significant item that a principle
may or may not award to their power of attorney. There are four
other items requested from the Uniform Law Commission and "truly
I don't know why we didn't get all eight items in, but one of
the recommendations would be to add those other items." She
said it was not adopted in this version of the bill from the
Uniform Law Code, "and certainly we would be happy to entertain
those few items."
REPRESENTATIVE HUGHES advised the intention is that all eight
items are included in the legislation, but they accidentally
fell through the cracks in the drafting.
1:41:00 PM
REPRESENTATIVE CLAMAN questioned the definition of "hot powers."
MS. BLAISDELL, in response to Representative Claman, advised
"hot powers" is a user term she learned from the Uniform Law
Commission. "Hot powers" is something independently chosen and
not part of a form, and otherwise would not be awarded to the
agent. The power must be specifically selected - on the form it
is the section "Optional."
REPRESENTATIVE HUGHES added that "hot powers" are very
substantial in that the principle is giving hefty power to the
agent, such as creating or revoking a trust, or changing a
beneficiary, something important the principle consider
seriously so it is included in a separate section.
1:52:46 PM
REPRESENTATIVE GRUENBERG reiterated he would like a document or
testimony from the Chicago staff of the Uniform Commissioners,
as to the difference between this and the Uniform Act. He is
aware the Uniform Probate Code is large and complex and that
they do not list in the Uniform Acts Annotated as there are too
many.
MS. BLAISDELL remarked that last year she provided to the
committee a word-for-word every sectional compared to the Alaska
Uniform Code including notes the Uniform Law Commission offered.
She advised she will provide copies to the committee of the
entire document of the language the sponsor accepted, and did
not accept.
REPRESENTATIVE KELLER suggested Representative Gruenberg work
with the sponsor.
1:54:41 PM
REPRESENTATIVE CLAMAN opined that the Uniform Law Commission
chose not to endorse the proposed amendments and asked whether
Ms. Deborah Behr would testify, or offer it in writing.
VICE CHAIR KELLER suggested he get together with Representative
Gruenberg and the House Judiciary Standing Committee staff,
including the items left out by Legislative Legal and Research
Services.
REPRESENTATIVE CLAMAN stated he is interested in the areas the
Uniform Law Commission differs with HB 8, and the reasons why.
MS. BLAISDELL, in response to Representative Gruenberg, advised
that HB 8 enters strictly into financial powers.
REPRESENTATIVE GRUENBERG questioned whether the Uniform Act is
limited accordingly.
MS. BLAISDELL answered in the affirmative.
1:58:05 PM
MS. BLAISDELL responded to Representative Claman and stated that
when first looking at the drafting of the bill, with regard to
Alaska fraud, it appears to be more toward seniors or elderly
parents. When initially drafting, the Uniform Law Commission
compared every statute and created the document she previously
spoke to. She then met with the long-term care Ombudsman and
its attorney, and went through every single line, section by
section, and found that a portion of the language the Uniform
Law Commission requested already existed in Alaska Statutes and
they determined it was similar enough that it did not require a
change. She noted there are very specific Alaska laws
pertaining to Native rights, shareholder, Native Corporation
rights that were not changed. The Uniform Law Commission has
not spoken to her directly regarding which sections it felt were
not being followed and she could not say which ones might be
less impactful than others, she offered.
2:00:12 PM
MS. BLAISDELL reiterated that the sponsor put four of the eight
"hot powers" in the form and accidentally omitted four and
suggested the committee may decide to add the four into a
committee substitute. Clarification of certain definitions were
necessary, such as, "guardian," "conservator," and on page 35,
line 24, there is also a generic term "public home care
provider." She advised that a "public home care provider" was
previously in statute, and the sponsor's intent is to correct
the "attorney-in-fact" language. A public home care provider
can perform miscellaneous chores so the individual can continue
living at home and, she indicated, the statute reads that the
public home care provider should not be the individual's power
of attorney. The reasoning is that they are being paid to
perform a certain set of skills and having the power of attorney
may create a conflict of interest as far as the wellbeing of the
principle. She indicated that a better definition is necessary
for the public home care provider and referred to page 35, line
29 "(c) A special power of attorney created before September 4,
1988 ..." but pled ignorance because she does not know what
happened on September 4, 1988, that was so significant as to
stay in statute. She advised she would research the issue for
clarification.
2:03:38 PM
REPRESENTATIVE GRUENBERG noted that the House Judiciary Standing
Committee is dealing with HB 5, which is regarding conservator
and conflict of interest.
2:04:23 PM
REPRESENTATIVE CLAMAN indicated that one of the global changes
in the legislation is changing from the term "disability" to
"incapacity." He questioned whether that change is recommended
by the Uniform Law Commission.
MS. BLAISDELL responded to Representative Claman that she would
have to go through the large document from the Uniform Law
Commission to make sure, but she did flag in an existing statute
"a note to decision on AS 13.26.010." She remarked that it is
talking about the definition of an incapacitated person, which
was a court decision that she believes drove the definition
change.
2:06:22 PM
REPRESENTATIVE KELLER referred to page 7, "Validity of power of
attorney executed in another state." He noted that the growing
sophistication of [Alaska's] powers of attorney may harm certain
individuals. He offered a scenario of an individual going
through the form marking off what "counts and what doesn't." He
said his understanding is that there are two categories of power
of attorney that are optional and questioned whether the Uniform
Code, or anyone goes to different levels of power of attorney
beyond that, like a power of attorney for business. He opined
that if it gets too confusing it will end up hurting people
because they can't understand it.
REPRESENTATIVE HUGHES answered that ultimately she believes the
form is more user friendly and understandable for the individual
filling it out as it breaks the form apart. The principle has
to stop and think about each item and often a person is filling
it out with the assistance of an attorney, she said.
2:09:07 PM
MS. BLAISDELL offered that an agent could manage all of a
principle's financial effects while alive, and when the
principle dies someone else might take over and disperse funds
differently with a completely different action. She explained
it depends upon what phase of life an individual is in and their
expectations and offered that there is a wide variety of powers
of attorney. Some can be very short term as for coaches when
traveling to Canada for sports with a minor. House Bill 8, is
strictly dealing with the financial responsibilities of a person
when they become incapacitated.
2:10:48 PM
REPRESENTATIVE KELLER described the form as something that is
filled out to prevent problems if there is an incapacity.
2:11:33 PM
REPRESENTATIVE GRUENBERG, in response to Representative Claman,
suggested reviewing two laws passed last year, House Bill 88, 42
SLA 2013, and House Bill 211, 19 SLA 2014. These laws deal with
statutory reference to mental retardation with using up-to-date
terms, and the employment of persons with disabilities, he
explained. He opined this is a sensitive issue to people with
certain disabilities or incapacities and how it would fit with
the terms used in HB 8. The Uniform Act is drafted nationally
and other states have not gone through the same history as
Alaska in the last two years.
2:13:00 PM
REPRESENTATIVE HUGHES advised she would look at that issue.
2:13:17 PM
MS. BLAIDELL, in response to Representative Claman, advised that
AS 13.26.010 is regarding incapacity versus disability, and the
court case notes to the decision.
2:13:49 PM
REPRESENTATIVE KELLER referred to page 8, and questioned where
the "hot powers" came from, how they relate, and he assumed Ms.
Blaisdell would give the committee the whole list.
MS. BLAISDELL responded that page 8 is a list of routine
financial transactions most individual's deal with on a regular
basis, such as, investments, bank accounts, household effects,
utility payments, and personal relationships and affairs. The
list on page 8 already existed and for the most part is being
kept the same, although "gift transactions" was removed, and
"retirement plans" added as a separate item. She referred to
page 9, "Grant of Specific Authority (Optional), which is the
jargon "hot powers," and the grant of "hot powers" is strictly
optional. She opined that this is where an agent could commit
the greatest level of fraud by giving themselves a gift,
changing the beneficiary designation so they receive everything
in the end.
2:16:13 PM
MS. BLAISDELL referred to pages 8-9, and stated she does not yet
have an answer as to what happens when a "yes" or "no" block is
not marked in some manner. She pointed out that the legislation
has a zero fiscal note.
2:17:15 PM
REPRESENTATIVE GRUENBERG referred to page 9, line 14, revoking a
transfer on death deed and suggested expanding it as currently
there can be a transfer on death bank accounts, and transfer on
death securities accounts. He further suggested the sponsor
speak with Legislative Legal and Research Services on those
issues.
[HB 8 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB08 Fiscal Note - DHSS.pdf |
HJUD 2/13/2015 1:00:00 PM |
HB 8 |
| HB08 Section Analysis-Power of Attorney.pdf |
HJUD 2/13/2015 1:00:00 PM |
HB 8 |
| HB08 Sponsor Statement - Power of Attorney.pdf |
HJUD 2/13/2015 1:00:00 PM |
HB 8 |
| HB08 Supporting Documents - AARP letter.pdf |
HJUD 2/13/2015 1:00:00 PM |
HB 8 |
| HB08 Supporting Documents-Article AARP summary report.pdf |
HJUD 2/13/2015 1:00:00 PM |
HB 8 |
| HB08 Supporting Documents-Article Remedying Financial Abuse by Agents Under a POA for Finances.pdf |
HJUD 2/13/2015 1:00:00 PM |
HB 8 |
| HB08 Supporting Documents-Article Uniform Law Commission.pdf |
HJUD 2/13/2015 1:00:00 PM |
HB 8 |
| HB08 ver A Powers of Attorney.pdf |
HJUD 2/13/2015 1:00:00 PM |
HB 8 |
| HB08 Supporting Documents-Articles multiple articles.pdf |
HJUD 2/13/2015 1:00:00 PM |
HB 8 |