Legislature(2015 - 2016)CAPITOL 120
02/23/2015 01:00 PM House JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| HB8 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 8 | TELECONFERENCED | |
| += | HB 79 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 8-POWERS OF ATTORNEY
1:34:47 PM
VICE CHAIR KELLER announced that the only 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."
VICE CHAIR KELLER opened public testimony.
1:35:20 PM
REPRESENTATIVE MILLETT moved to adopt proposed committee
substitute (CS) for HB 8, Version 29-LS0055\E, Bannister,
2/19/15, as the working document. There being no
objection, Version E was before the committee.
1:36:06 PM
REPRESENTATIVE SHELLEY HUGHES discussed changes in the
committee substitute regarding powers of attorney in that
as the bill allows better powers of attorney for our elders
and vulnerable folks.
1:36:45 PM
GINGER BLAISDELL, Staff, Representative Shelley Hughes,
Alaska State Legislature, paraphrased a two page
explanation of changes as follows [original punctuation
provided]:
Page 5, line 17: added "Notwithstanding AS
13.26.357"
This statutory reference was added because of
new section (page 36, line 7) of validity of
powers of attorney to connect the validity with
the section that says you're not required to
accept the powers.
Page 8, lines 10-14: added "If you do not mark
either of the boxes opposite a category, or if you
mark both of the boxes opposite a category, your
agent or agents will not have the power in that
category."
This language satisfies the interpretation of
the powers in the event the form was not filled
out completely or unclearly.
Page 9, line 2: removes "Delegation" from the list
of general powers because it is included in "grant
of specific authority" and renumbers the remainder
of the list.
Page 9, lines 19-25: includes the additional
"grant of special authority" items that were not
included in
version A.
1. Create or change rights of survivorship
2. Delegate authority granted under the power
of attorney
3. Waive the principal's right to be a
beneficiary of a joint and survivor annuity,
including a survivor benefit under a
retirement plan
4. Exercise fiduciary powers that the principal
has authority to delegate
Page 12, lines 11-12: The committee requested to
include definitions for Guardian or Conservator.
Because both are defined elsewhere in statute, it
was recommended not to repeat definitions in this
Act.
Guardian AS 13.26.005
Conservator AS 13.26.2102 Explanation of
changes to HB8 ver E
Page 13, lines 4-7: new section (5) if the
principal has failed to mark either of the "Yes"
or "No" boxes opposite a category of power, or if
the principal has marked both the "Yes" or "No"
boxes opposite a category of power, the agent does
not have the power in that category.
Page 34, line 30: includes the office of the long
term care ombudsman in the list of agencies with
specific authority to protect the welfare of the
principal.
Page 36, line 4: clarification
September 4, 1988 was the date power of
attorney was first entered into statute in Alaska
Page 36, line 7-13: new section 25: Sec.
13.26.357. Execution of power of attorney. A
power of attorney executed in this state is valid
if the principal
1. Signs the power of attorney or, in the
principal's conscious presence, directs
another individual to sign the principal's
name on the power of attorney; and
2. Acknowledges the signature before a notary
public or other individual authorized by law
to take acknowledgements.
Page 36, line 15: definition already provided
Public home care provider AS 47.05.017(3)(c )
1:38:44 PM
REPRESENTATIVE CLAMAN asked Ms. Blaisdell to identify the
four missing "hot powers."
VICE CHAIR KELLER expressed his preference that Ms.
Blaisdell have an opportunity to offer her presentation
prior to the committee members asking questions.
REPRESENTATIVE CLAMAN replied it was more of a
clarification.
MS. BLAIDELL referred to the first page of the Explanation
of Changes document "Page 9, lines 19-25, that adds the
four that were missing." One of the four includes the word
"delegate" that was taken off of the standard powers and
inserted under "hot powers," she said.
1:45:07 PM
REPRESENTATIVE LYNN asked for the definition of a public
home care provider and a private home care provider as they
apply to this bill.
MS. BLAISDELL replied she perform a statute review for
public home care provider, but does not know whether a
definition for private home care provider is available.
1:45:39 PM
REPRESENTATIVE GRUENBERG referred to page 36, line 15, that
mentions public home care provider and he questioned
whether it is defined somewhere else in the statute.
MS. BLAISDELL responded that it is defined in AS
47.05.017(3)(c).
REPRESENTATIVE GRUENBERG asked what AS 47.05.017[a](3)(c)
says.
MS. BLAISDELL read the statute as follows:
(c) In this section, "public home care provider"
means a person who is paid by the state, or by an
entity that has contracted with the state or
received a grant from state funds, to provide
homemaker services, chore services, personal care
services, home health care services, or similar
services in or around a client's private residence
or to provide respite care in either the client's
residence or the caregiver's residence or
facility.
1:47:30 PM
REPRESENTATIVE GRUENBERG opined that if the aforementioned
Title 47 definition was to be used in Title 13, a
conforming amendment would be necessary to reflect that the
definition of "public home care provider" in Title 13 was
taken from [Title 47]. He explained, "Because otherwise,
unless it's in Title 1, it doesn't apply throughout the
whole statute."
1:48:15 PM
VICE CHAIR KELLER said he understood the drafter to say it
was automatically covered without the reference.
MS. BLAISDELL responded that the bill drafter recommended
that a specific definition not be added as it was listed
somewhere else which "is why I did not include it."
1:48:46 PM
REPRESENTATIVE CLAMAN questioned whether the committee
substitute conforms to those of the Uniform Law Commission
(ULC), as was discussed during the last committee meeting,
and whether CSHB 8 has its support.
MS. BLAISDELL replied that she had only spoken with ULC
regarding the first version of the bill, but that she did
forward the committee substitute and the letter describing
the changes, but has not yet received a response.
1:49:41 PM
REPRESENTATIVE GRUENBERG advised that he spoke with Ben
Orzeske, [Uniform Law Commission Legislative Council] and
Mr. Orzeski would be available at 2:00 to answer questions
telephonically. He commented there may be conflict between
two uniform acts due to the manner the bill is written.
1:51:03 PM
REPRESENTATIVE HUGHES reminded the committee that they did
go through the ULC's model language piece by piece with the
Department of Law, and the Long Term Care Ombudsman, and
picked out issues that made sense for the State of Alaska.
House Bill 8 with the "yes" / "no" options on the form, the
ability to have a definition of "sign" when some
individuals cannot write their signature, and the language
addressing Alaska Native legal issues made the powers of
attorney better. She expressed that the bill does not
parallel the uniform laws so they did not receive a letter
of support.
1:52:54 PM
REPRESENTATIVE GRUENBERG opined that the phrase causing
problems is on page 5, line 17, "Notwithstanding AS
13.26.357".
VICE CHAIR KELLER opened public testimony.
1:54:02 PM
MARIE DARLIN, Coordinator, American Association of Retired
Persons (AARP), said she represents the American
Association of Retired Persons (AARP) that supports the
bill as it cures the unspecific powers of attorney
problems.
1:55:38 PM
DENISE DANIELLO, Executive Director, Alaska Commission on
Aging (ACoA), Department of Health & Social Services,
offered support for HB 8 as people 85 and older are most at
risk for developing chronic health conditions, physical
disabilities and cognitive impairments that may be due to
dementia or adverse reactions to medications. These
issues, she expressed open seniors to financial
exploitation and other forms of elder abuse. She pointed
out that the bill incorporates provisions from the Uniform
Power of Attorney Act (UPOAA) making the Alaska Statutes
interstate compatible with other states, which is
especially important when a principle and agent live in
different states.
The Alaska Commission on Aging (ACoA) also supports
incorporating the Substitute Decisions Act (SDA) into
Alaska Statutes to protect a vulnerable person while they
are traveling. Most importantly, she expressed, ACoA
supports improvements to the Power of Attorney form by
increasing the principle's control over delegating their
authority with respect to routine financial transactions,
as well as the "hot powers."
1:57:58 PM
TERESA HOLT, Ombudsman, Office of Long Term Care Ombudsman,
Department of Revenue, said the Office of Long Term Care
Ombudsman investigates complaints on behalf of or from
seniors living in assisted living homes and nursing homes,
and supports HB 8. She remarked that the investigations of
durable powers of attorney are a long standing problem such
as: unscrupulous agents spending senior's assets for their
own benefit; a personal care attendant using the debit card
to purchase items for themselves; a family member spending
hundreds of thousands of dollars on vacations or cars; an
agent transferring the elder's home into their own name; or
someone dissolving a family trust prior to the senior
passing and thereby transferring the assets to themselves
rather than spread amongst the siblings. She offered
excitement in that the form specifically states the agent
must act in accordance with the principle's wishes or the
principle's best interests and keep records and that agents
are liable to restore or reimburse the principle or
principle's successors if the agent abuses its power of
attorney. She remarked that seniors have to indicate
either "yes" / "no" for each of the fourteen powers, and
the super-powers which is an active designation versus
crossing out and she appreciates a judicial review when an
individual believes someone is abusing or misusing their
power of attorney. She described situations on both sides
where a third party accepted a document they shouldn't
have, or wouldn't accept a document that would have been in
senior's best interests.
2:01:57 PM
VICE CHAIR KELLER referred to page 36, line 15, and ask
Terry Bannister (Legislative Legal and Research Services
drafting attorney on-line) whether or not another
definition should be repeated in public home care provider.
REPRESENTATIVE GRUENBERG then referred Ms. Bannister to
Sec. 26, page 36, lines 14-18 regarding the definition of
public home care provider. He said that Ms. Blaisdell
pointed out it is currently defined in AS 47.05.017 and
unless there is something in that particular definition
that would reference back to Title 13, he suggested that
somewhere in "that area of Title 13" that public home care
provider is defined in AS 47.05.017.
TERRY BANNISTER, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative
Affairs Agency, said the other definition does not apply to
this and it is a good idea to define public home care
provider.
2:04:01 PM
REPRESENTATIVE GRUENBERG asked whether Ms. Bannister's
recommendation is that it is defined "fresh," or references
back.
2:04:10 PM
MS. BANNISTER responded that if it is tied to something
that will be the main teller of the item, Legislative Legal
and Research Services references back. But, she said, if
it needs its own special definition it would be defined
especially for the section.
REPRESENTATIVE GRUENBERG offered to submit a conceptual
amendment and the drafter and sponsor could determine how
to craft it.
2:04:45 PM
VICE CHAIR KELLER asked Representative Gruenberg to ask Ms.
Bannister about the "Notwithstanding" part as he would
prefer asking Legislative Legal and Research Services.
REPRESENTATIVE GRUENBERG responded to Vice Chair Keller
that he is not sure he fully understands the
"Notwithstanding" controversy.
2:05:23 PM
REPRESENTATIVE CLAMAN asked why there are a number of
movements away from not following the uniform act in more
significant ways. He said he is particularly concerned
about powers of attorney which often are executed in
Alaska, but show up in the other 49 states. He described
it as enough of a departure from the uniform laws that the
ULC did not write a letter of support.
MS. BANNISTER responded that is a "policy call."
2:07:09 PM
REPRESENTATIVE CLAMAN suggested that without getting into
the policy questions in what ways does this differ from the
uniform act. He said that "apparently you can't tell us
the reasons why you chose to differ," but to explain where
it differs in significant ways from the uniform act.
MS. BANNISTER replied that there are probably many
differences, but that does not mean it doesn't contain some
of the concepts in the uniform act. She said she has not
read the full uniform act but knows that the bill pulled
the provisions it wanted.
2:08:17 PM
REPRESENTATIVE GRUENBERG remarked it is important to see
that the bill combines two uniform acts. He said he would
like to know what the bill does, what the sponsor is doing
that is different, "what's going on here."
VICE CHAIR KELLER pointed out this is not the first time
this bill has been in front of the committee.
REPRESENTATIVE LYNN referred to Sec. [2], page 1 and noted
that it refers to the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the United
States Virgin Islands and questioned whether those are the
only locations the bill is concerned. He referred to the
Marshall Island, Guam, and America Samara and asked where
they would fit.
2:10:46 PM
REPRESENTATIVE GRUENBERG said it appears the bill adds the
Virgin Island and questioned why that wouldn't have been
included previously. He noted that if uniform acts are now
starting to include the Virgin Islands as a separate
category whether the legislature should look at other
uniform acts to determine if this should be included
generally.
MS. BEHR, Attorney, Alaska Uniform Law Delegation replied
that the definition here is the standard definition used in
all uniform acts so as long as the Virgin Islands was a
territory or insular possession subject to the jurisdiction
of the United States, it should have been included
specifically, or would have been picked up in the catch
all. She offered that if Representative Gruenberg
preferred to look at other uniform acts to determine
whether it was omitted, that would be appropriate.
2:12:07 PM
DEBORAH BEHR said she has been a member of the Alaska
Uniform Law delegation for over 20 years and explained that
the State of Alaska has been a member of the Uniform Law
Commission (ULC) since 1914, Alaska has been an active
participant in that it has adopted the major bills of the
ULC such as the Uniform Commercial Code, and the Uniform
Child Custody and Jurisdiction Act, she explained. The
delegation considers the ULC as a state's rights
organization wherein all of the states meet once a year
with the best minds to determine what is working. She
describes it as a totally open process with experts on the
banking community, insurance community, et cetera, watching
how the ULC develops uniform acts. It is voted on, similar
to the legislature, by the states and [the law] then goes
to the states to be enacted by all of the people who
participated in it. She described [the laws] as the best
thoughts across state lines, and easier to enforce in a
nation where people travel a lot. She pointed the
committee to CSHB 8, page 37, line 22, "Chapter 28.
Recognition of Substitute Decision-Making Documents" and
opined that the bill avoids the need for attorney and court
involvement, helps the process move faster and
inexpensively, and implements the principle's wishes
quickly. Ms. Behr stated that the bill answers the
questions between states as to what was expected, what
could be asked for, and the penalty when an individual does
not accept one of the documents. She offered a situation
where a principle opens a bank account to receive their
social security check in a different state, or possibly
consents to a medical procedure, or the principle's credit
cards were hacked and had to be canceled with new cards
issued. She related that the ULC supports pages 37-41, and
a technical amendment can be made in the other body.
2:15:41 PM
REPRESENTATIVE CLAMAN asked whether the ULC supports and
the "rest of what we are doing here," other than page 37-
41.
MS. BEHR explained that the goal of ULC is to encourage a
uniform adoption of its laws so a judge is familiar with a
power of attorney form or health care form from other
states. She noted the sponsor picked good provisions of
the uniform act and she particularly appreciates the
protection of seniors but there are a lot things where
there are differences. Therefore, she explained, CSHB 8
will not go down in ULC books as a uniform act.
2:16:55 PM
REPRESENTATIVE CLAMAN asked for an explanation of how it
differs from the uniform act.
MS. BEHR replied a red flag is in the [power of attorney]
form itself as the uniform act has one general power of
attorney and the agent receives all of the powers unless a
line is drawn through it and "no" is written. The Alaska
form is different in that Alaskans must stipulate "yes" /
"no" to each power which is enough to make it not uniform
law. There are other things she could go over, but [the
form] is "pretty major," she remarked.
2:18:28 PM
REPRESENTATIVE GRUENBERG asked Ms. Behr to go over other
major differences that would make this non-uniform and
questioned whether the "yes/no" form as opposed to an "opt
out" form would make it non-uniform.
MS. BEHR advised she has not talked to Ben [Orzeski}, but
when the options are "yes/no," there is a possibility
something might be omitted. Whereas if someone is given
all of the powers, except the one the principle crosses
out, the principle has clearly given the agent all the
powers the principle has.
REPRESENTATIVE GRUENBERG noted a provision that if a person
neglects to check a box, or checks both boxes, by default
the agent does not receive the power.
MS. BEHR submitted that there could be [a power] the
principle wants to give but it is not listed on the form,
and therefore questioned "What if it is not an all-
inclusive list." She opined that is the difficulty in a
specific list versus a general list.
2:20:48 PM
REPRESENTATIVE CLAMAN offered a scenario of a principle
signing a power of attorney and if it is a general blanket
power of attorney then the agent has full authority.
Whereas when going line-by-line, the principle must
specifically choose "yes/no" and, he questioned, does the
principle understand what they are signing away versus a
general power of attorney with exclusions. He expressed
that from an evidentiary standpoint, the approach the ULC
has taken prefers the general power in that an individual
makes active efforts to eliminate, rather than the reverse
of what is going on.
MS. BEHR commented it is a "major" policy call for the
legislature to make.
REPRESENTATIVE CLAMAN questioned how enforceable would
another state treat Alaska's "yes/no" provision versus the
general blanket provisions that might be adopted in other
states. He further questioned if that could create issues.
MS. BEHR stated in dealing with conservative attorneys in
the financial world she has had to explain commas, so it is
an issue. She then pointed out that there has been
significant testimony for the "[yes]/[no]" form.
2:23:00 PM
VICE CHAIR KELLER noted there has been a suggestion of a
conceptual amendment and would like to know the sponsor's
thoughts.
MS. BLAISDELL responded to Representative Gruenberg's
concern about the definition of a public home care provider
and pointed to Sec. 47, which is very specific to home care
providers and is under the section of administration of
welfare, social services, and institutions. She described
it as very broad where a home care provider will conduct
business and it describes who a public home care provider
is. She referred to page 36, line 15, and noted a public
home care provider is discussed. Unfortunately, she noted,
the bill only shows the parts of the law being changed and
explained that existing statute subsection (b) reads "in
this section public home care provider has the meaning
given in AS 47.05.017(c).
MS. BLASDELL agreed with Representative Gruenberg's
statement that another subsection of AS 13.26.358 already
references back.
VICE CHAIR KELLER closed public testimony after
ascertaining no one further wished to testify.
2:25:41 PM
REPRESENTATIVE MILLETT stated she does have concerns on the
state-to-state functioning of the "yes/no" form questions,
but believes it is in the best interest of Alaskan seniors.
She noted she is comfortable with the bill as written.
2:26:33 PM
REPRESENTATIVE CLAMAN advised he does not have a problem
with CSHB 8 moving out of committee but is troubled about
taking a different path. He said he has been dealing with
this in an estate matter in which a release from another
state was presented to a sister state. Unfortunately, he
explained, the sister state didn't like it so attorney's
fees started running. He remarked that it is a concern
because the legislature wants to protect Alaskan seniors
from fraud and also the public from running into high and
arguably unwarranted attorney's fees.
2:27:54 PM
REPRESENTATIVE KELLER assured Representative Claman that
everyone agrees with him wholeheartedly, that the issue is
the most expedient and least expensive care, legal and
otherwise, for Alaskan seniors. He said that many share
his concerns and want to make this right.
2:29:42 PM
REPRESENTATIVE MILLETT moved to report the proposed CS for
HB 8, Version 29-LS0055\E, Bannister, 2/19/15, from
committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
8(JUD) was reported from the House Judiciary Standing
Committee.
2:30:05 PM
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB08 Description of Changes to ver E.pdf |
HJUD 2/23/2015 1:00:00 PM |
HB 8 |
| HB08 Draft Proposed ver E.pdf |
HJUD 2/23/2015 1:00:00 PM |
HB 8 |
| HB08 Fiscal Note - LAW.pdf |
HJUD 2/23/2015 1:00:00 PM |
HB 8 |
| HB08 Supporting Documents - LTCO.pdf |
HJUD 2/23/2015 1:00:00 PM |
HB 8 |