Legislature(2015 - 2016)BELTZ 105 (TSBldg)
02/08/2016 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB121 | |
| SJR15 | |
| SCR4 | |
| HB8 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 121 | TELECONFERENCED | |
| + | HB 8 | TELECONFERENCED | |
| += | SJR 15 | TELECONFERENCED | |
| += | SCR 4 | TELECONFERENCED | |
HB 8-POWERS OF ATTORNEY
1:54:37 PM
CHAIR MCGUIRE announced the consideration of HB 8. [SCS CSHB
8(HSS) was before the committee.]
1:55:24 PM
GINGER BLAISDELL, Staff, Representative Shelly Hughes, Alaska
State Legislature, presented the following sectional analysis
for HB 8, version G, on behalf of the sponsor:
Section 1 replaces the current definition of an
"agent" with a more nationally recognized term.
Section 2 corrects the definition of "state" by
including the United States Virgin Islands.
Section 3 adds new definitions for "durable,"
"electronic," "power of attorney," "principal,"
"record," and "sign," as they pertain to the Act. The
definition for "sign" is probably the most
significant. An audible or visual designation or
signing for someone is now allowed. This is for
someone who has full capacity but is inhibited from
signing for him/herself due to some physical
impairment.
Section 4 is a new section that states that an agent
is the person granted powers and the finances belong
to the principal. It contains the agent's acceptance
and liability and describes the agent's duties. It
also pertains to the acceptance and termination of a
power of attorney.
Section 5 recognizes a power of attorney executed in
another state.
Section 6 edits the power of attorney (POA) form in
statute and requires the principal to mark (as opposed
to check) a box in each category and 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 a death deed;
change rights of survivorship; delegate authority; and
waive the principal's right to be a beneficiary. For
example, a person might want someone to make their
house payments, but not sell their house.
SENATOR COSTELLO asked what section prevents someone from
selling another person's house and taking the payments.
MS. BLAISDELL directed attention to page 8, line 19 titled "real
estate transactions" and line 23 titled "banking transactions."
Checking "No" on line 19 would prohibit someone from making any
real estate transactions, and checking "Yes" on line 23 would
allow a person to pay the mortgage on behalf of the principal.
CHAIR MCGUIRE described this as an excellent provision. She
expressed hope that the bill isn't so specific that it leaves
out the ability to add protections later on.
SENATOR COSTELLO asked the definition of "personal relationships
and affairs" on page 8, line 29, because a power of attorney for
personal affairs could include real estate transactions. Also,
"records, reports, and statements" on page 9, line 1, could be
confusing to interpret. She argued that all the categories fall
under personal affairs. She asked if there was another
intention.
MS. BLAISDELL advised that expanded definitions and what would
be included in each category appear later in the bill.
2:03:59 PM
MS. BLAISDELL continued to discuss Section 6 explaining that
page 9 has a new section titled "grant of specific authority,"
which is optional. These are things that a person may or may not
choose to award someone who is managing their finances. These
are commonly referred to as "Hot Powers" because they carry more
weight than day-to-day transactions. Page 10 updates the term
"check" to "mark" so any kind of tangible mark can be accepted
in lieu of a signature and "disability" is changed to
"incapacity." Page 11 strengthens the notary provision. If a
person is selected to sign on behalf of the principal who is
physically unable to sign, the notary must document the personal
information of the principal and the person signing on the
principal's behalf.
SENATOR COSTELLO asked the procedure and requirements if the
principal is not present at the signing.
MS. BLAISDELL clarified that the principal has to physically
appear; a person is signing on their behalf because the
principal is physically unable to sign. This could be due to
arthritis or a broken arm, for example.
2:09:00 PM
SENATOR COGHILL related a personal experience, and asked if the
potential for intimidation has been considered.
MS. BLAISDELL acknowledged that she hadn't completely vetted
"intimidation." She continued the sectional analysis:
Section 7 changes the term "attorney in fact" to
"agent."
Section 8 deals with the applicability of provisions
and changes terms for consistency. A new paragraph (5)
clarifies that if the principal fails to mark either
the "yes" or "no" box, or marks both boxes, the agent
would not be granted that power.
Sections 9-11 remove the term "revoke, create or
modify a trust" and includes it in a separate
selection on the POA form.
Section 12 adds the ability for the agent to use
credit and debit cards, and electronic transactions.
2:12:03 PM
SENATOR COSTELLO asked what protection a bank would have when
the person using the card isn't named on the card.
MS. BLAISDELL explained that the bill provides judicial relief
and allows someone to look at the agent's actions. She continued
the sectional analysis:
Section 13 adds additional responsibilities and
clarification responsibilities of the agent to manage
the affairs of the principal's businesses.
Section 14 identifies an additional function of
managing the principal's insurance or annuity.
Section 15 provides the agent with all the powers to
effectively manage the principal's retirement plan(s).
2:15:26 PM
Section 16 amends the section regarding personal
relationships such as child support under HIPAA rules.
SENATOR COGHILL asked how this affects a healthcare directive.
MS. BLAISDELL clarified that this does not replace or supersede
a healthcare directive. She continued the sectional analysis:
Section 17 amends the section regarding government,
military service, or civil service. It allows the
agent to enroll in, apply for, select, reject, change,
amend or discontinue a program.
2:17:49 PM
Section 18 adds a new subsection (q) to AS 13.26.344
regarding specific authority with respect to gift
transactions. This is one of the Hot Powers where a
principal can designate whether or not the agent has
powers to designate gifts.
Section 19 amends AS 13.26.347 to relieve an agent of
liability for breach of duty unless it was committed
dishonestly.
2:19:13 PM
Section 20 replaces the term "disability or
incompetence" with "incapacity."
SENATOR COSTELLO asked if incapacity is defined elsewhere.
MS. BLAISDELL directed attention to the definition on page 37,
line 14.
2:20:00 PM
VICE CHAIR COGHILL assumed the gavel.
SENATOR COSTELLO asked if this definition matches the definition
in the insurance statutes.
MS. BLAISDELL confirmed that they match.
SENATOR COSTELLO suggested looking to make sure that this
definition of "incapacity" matches the specifically delineated
definition for healthcare insurance to apply.
VICE CHAIR COGHILL suggested that Deborah Behr may have an
answer.
2:21:47 PM
MS. BLAISDELL continued the sectional analysis.
Section 21 clarifies the grounds for determining
incapacity of an individual and includes additional
provisions such as if the principal is missing,
detained or unable to return to the U.S.
Section 22 is a technical amendment that inserts the
term "agent" and updates the statutory reference.
VICE CHAIR COGHILL questioned the reason that Section 21 was
repealed and reenacted.
MS. BLAISDELL didn't recall the reason. She continued the
sectional analysis:
Section 23 adds a new section on judicial relief that
allows specified individuals to petition the court
asking for a review of the agent's conduct. It also
adds a new section on relationship to other laws that
specifies that the Act does not supersede any other
law applicable to a financial institution or other
entity; and it allows electronic signatures.
[Section 24 is a technical amendment to update terms.]
Section 25 adds a new section relating to execution of
power of attorney. It states that a power of attorney
in this state is valid if the principal signs the form
or directs another to sign on his/her behalf and the
signature is acknowledged by a notary. She deferred to
Deborah Behr for a further explanation.
Section 26 is a technical change to remove the term
"attorney in fact."
Section 27 adds new definitions to AS 13.26.
Section 28 adds a new chapter titled "Recognition of
Substitute Decision-Making Documents" that requires
the state of Alaska to recognize as valid any
decision-making documents for a principal as long as
they were executed in compliance with the law from the
jurisdiction from which they came.
2:27:01 PM
SENATOR COSTELLO said that tells her that notary signatures on
any document aren't recognized from state-to-state.
MS. BLAISDELL said she isn't sure about any document, but it
could affect a financial power of attorney or healthcare
directive. She continued the sectional analysis:
Section 28, page 40, also adds definitions clarifying
what it means when accepting documents between states.
Section 29 repeals AS 13.26.338(a), AS 13.26.344(n)
and AS 13.26.353(c).
Section 30 is the applicability section. A power of
attorney formed prior to the effective date of the Act
is not nullified.
Section 31 provides an effective date of January 1,
2017.
2:30:00 PM
REPRESENTATIVE SHELLEY HUGHES, Alaska State Legislature, sponsor
of HB 8, stated that elders and vulnerable individuals in this
state are valued and honored, but they need certain protections.
She highlighted that AARP, the Association of Mature Americans
and other senior groups support the bill because they see the
need. In Alaska, there are 600 allegations of financial
exploitation and many of those involve the misuse of a power of
attorney. These clarifications will strengthen the statutes,
protect vulnerable individuals and guide those caring for them.
2:31:56 PM
SENATOR WIELECHOWSKI asked if she had a list of where the bill
deviates from the Uniform Power of Attorney.
MS. BLAISDELL agreed to share a copy of the 175 page document.
She explained that the Uniform Law Commission compared, line by
line, the Alaska statutes to their model bill. The sponsor, long
term care ombudsman and an assistant attorney general then
reviewed the comparison.
SENATOR WIELECHOWSKI said he's interested in the meaningful
policy decisions, not clerical or technical changes.
VICE CHAIR COGHILL expressed interest in seeing where Alaska law
departs from the model legislation.
2:34:09 PM
DEBORAH BEHR, Member, Alaska Uniform Law Delegation, stated that
Alaska has been a member of the commission since 1914. She
explained that this confederation of states looks at things that
are appropriate to be uniform among the states. The model bill
took 3-4 years to complete and uses what all states could accept
and the courts could interpret uniform across the states. That
is the goal of a Uniform Act.
She described the first 37 pages of the bill as an Alaska
version of the Uniform Act and deferred further comment on those
pages to the sponsor.
Page 38 forward is the Uniform Act that allows for recognition
of substitute decision-making documents, primarily the power of
attorney and the advanced healthcare directive. It establishes a
uniform process for these documents to be accepted quickly from
state to state without having to go to court. She provided
examples.
She noted that she suggested four technical amendments to the
sponsor's staff to make the bill work better. She also described
the power of attorney improvements in the bill as excellent
compared to current Alaska law, but not uniform.
2:39:47 PM
SENATOR COSTELLO asked if pages 1-37 have elements that were
vetted and ultimately rejected by the national committee or
developed in Alaska.
MS. BEHR said her understanding is that the sponsor looked at
the Uniform Act and reviewed it with a variety of Alaska groups
before making Alaska-specific changes. She opined that one of
the major differences between the documents is the statutory
form itself. The Alaska form requires "yes" or "no" responses to
options, whereas the Uniform Act form only requires a person to
initial the options he/she wants. The terminology in the
standard form is also slightly different than the Alaska form.
While she believes this will cause interpretation problems, it
is a vast improvement over the existing power of attorney law.
SENATOR COSTELLO asked if the Uniform Law Commission considered
and rejected the "yes" or "no" method for selecting options or
if it's unique to Alaska.
MS. BEHR replied, "If we do a yes/no, we'll be the only state in
the union, to my knowledge, to do this."
2:43:18 PM
RACHAEL GREENBERG stated that she is representing AgeNet, a
group of 40 agencies that provide services to over 10,000
seniors around the state. Their priority is to protect older
Alaskans from elder financial abuse, exploitation and harm. HB 8
provides this protection.
She disclosed that she is also the executive director of MatSu
Senior Services and when they assist with a power of attorney
form, they ask the agent to step out of the room to avoid the
potential for coercion. On a regular basis there are
misunderstandings about the specific powers that a power of
attorney provides, and HB 8 will strengthen that protection for
elders. She urged the committee to support the bill.
VICE CHAIR COGHILL noted that the bill requires a person who is
not physically able sign to give verbal consent. He asked if
she's had that experience.
MR. GREENBERG answered yes; they've had a number of people who
could not sign their name because of arthritis or blindness, but
they were cognitively aware and knew exactly what they wanted.
The existing law makes this process difficult, she said.
VICE CHAIR COGHILL said the committee will be looking for
cognitive capacity because of the prevalence of early-onset
dementia to Alzheimer's.
MS. GREENBERG clarified that they won't notarize a signature if
a person has early-stage dementia.
2:47:40 PM
VICE CHAIR COGHILL asked Ms. Behr how close the definition for
"incapacity" is to the Uniform Law.
MS. BEHR said she believes the Alaska definition is very close
but she'd have to match it word-for-word. She added that the
existing definition in statute focuses on medical issues and the
bill adds concepts to deal with more than that. She cited the
example of reporters who were kidnapped while on overseas
assignment and pointed out that somebody has to conduct their
business during that time.
VICE CHAIR COGHILL asked how close the bill is to the Uniform
Act with respect to a person who is physically unable to sign
but cognitively aware.
MS. BEHR directed attention to the provisions on page 11, lines
29-31. She said they were added in a previous committee and to
her knowledge they are not part of the Uniform form. She
acknowledged that this may address problems that Alaska has
experienced.
VICE CHAIR COGHILL asked Ms. Blaisdell her perspective.
MS. BLAISDELL said the Uniform law form asks the person to
initial each item they want and HB 8 asks the person to select
either "yes" or "no" for each option.
2:51:40 PM
VICE CHAIR COGHILL said he would leave public testimony open.
He asked Ms. Behr who generally holds people to account when
they have a power of attorney for another person, primarily a
family member.
MS. BEHR deferred the question to the senior advocates because
they've been collecting the complaints. She added that there
have been an estimated 600 complaints filed and her
understanding is that the "war stories" relate to gifts.
VICE CHAIR COGHILL held HB 8 in committee with public testimony
open.