Legislature(2021 - 2022)DAVIS 106
05/13/2021 03:00 PM House HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| SB89 | |
| HB106 | |
| HB153 | |
| HB139 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 139 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 89 | TELECONFERENCED | |
| += | HB 153 | TELECONFERENCED | |
| += | HB 106 | TELECONFERENCED | |
HB 139-GUARDIANS; LIFE-SUSTAINING PROCEDURES
4:45:18 PM
CO-CHAIR SNYDER announced that the final order of business would
be HOUSE BILL NO. 139, "An Act relating to guardians,
guardianships, successor guardians, incapacitated guardians,
incapacitated individuals, and testamentary appointments of
guardians; and relating to withholding or withdrawing life-
sustaining procedures."
4:46:01 PM
CO-CHAIR ZULKOSKY moved to adopt the proposed committee
substitute (CS) for HB 139, Version LS0036\G, Bannister,
5/10/21, as the working document. There being no objection,
Version G was before the committee.
4:46:31 PM
REPRESENTATIVE SARA HANNAN, Alaska State Legislature, as prime
sponsor, presented HB 139. She explained that the bill comes
from constituents and would resolve a very real issue that they
are facing. She said HB 139 would do three things. First, it
would give legal guardians of incapacitated adult wards the
authority to consent on behalf of that ward to cease or withhold
lifesaving medical measures when those procedures would only
prolong the dying process or offer no reasonable expectation of
cure or relief for the illness that the ward is being treated
for. Second, it would allow the guardian of an incapacitated
ward to make a testamentary (by will) appointment of a
subsequent guardian for the ward should the current guardian
die. Third, it would allow a guardian to name a successor
guardian of his or her ward should the guardian become
incapacitated. She noted that these provisions are all legal,
that guardianships vary from state to state, and that the
circumstances being looked at in HB 139 are narrow in the
statutory areas of Alaska law.
REPRESENTATIVE HANNAN related that Paul Douglas, the constituent
who brought this issue to her, is an older man who is faced with
having an incapacitated [adult] child with a disease. The
family fears that, once they have passed, the decisions they've
made for their son for the last 60 years will not be able to be
carried out. She noted that a group within the court system,
the American Association of Retired Persons (AARP), and the
legal community called [Working Interdisciplinary Networks of
Guardianship Stakeholder (WINGS)], are looking at several
aspects of guardianship law in Alaska that they believe are not
adequate to deal with all circumstances. But, she continued,
she has not yet engaged with those groups on this one very
narrow piece that her constituent asked her to investigate.
4:49:56 PM
TIMOTHY CLARK, Staff, Representative Sara Hannan, Alaska State
Legislature, provided a sectional analysis of HB 139 on behalf
of Representative Hannan, prime sponsor. He stated that the
foundation of the bill is best interest of the ward. Under
existing Alaska law, he explained, the authority of guardians is
limited in end-of-life circumstances, which does not work in the
best interest of the wards. There are examples within the
Journal of the American Medical Association, he continued, of
when a guardian cannot ascertain a patient's preferences and
faces the ethical challenges involved in assessing a person's
best interest. Guardians may be reluctant to give orders
limiting treatment, he related, and reports have long suggested
that they choose instead the safer path of aggressive care by
default or defer to a cumbersome judicial process. That "safer
path" can result in prolonging the dying process and suffering
of the ward under the most extreme end of life circumstance.
MR. CLARK informed the committee that most states do not have
very clear guidance for guardians in statute. That lack of
clarity, he said, can lead to these inadvertent circumstances
where suffering is often prolonged needlessly. Besides the
specific circumstances of the sponsor's constituent, he noted,
there are also more general circumstances in terms of the
wellbeing of incapacitated wards under these end-of-life
situations.
MR. CLARK noted that in granting guardians this authority the
guardian is still not alone in this decision-making process. It
is required, he pointed out, that the incapacitated ward not
have on record anything written or known otherwise in terms of
what his or her end-of-life choices may be. Secondly, the ward
would have to suffer from what is known in law as a qualifying
condition, which is essentially a terminal illness or permanent
unconsciousness. The determination of that condition must be
made by the ward's personal physician and another doctor if
available, and when it comes to permanent unconsciousness a
neurologist also must agree.
MR. CLARK addressed the provisions of HB 139. He explained that
the sections in the bill dealing with a guardian's ability to
name a successor guardian in a will in case of the guardian's
death, or to nominate a successor in case of the guardian's own
incapacity [in the future], is a peace of mind issue for someone
devoted to their adult incapacitated ward. With these
mechanisms, he continued, a guardian can have the peace of mind
that their ward will be looked after by someone who shares their
concern for their ward's wellbeing.
4:56:05 PM
MR. CLARK provided the sectional analysis for HB 139. He said
Section 1 would amend AS 13.26.211 by adding a new subsection
that allows the guardian of an incapacitated person to appoint
by will a person to act as guardian for the ward if the current
guardian dies. This new subsection also states that the
appointment of the new guardian takes effect when the appointee
has given notice to the persons and in one of the manners
described in AS 13.26.296 and files acceptance of the
appointment in the court in which the will is probated. He
noted that AS 13.26.296 has to do with notification of the ward,
the ward's relatives if they can be found, or other interested
parties. He stated that in a future hearing the attorneys
consulted by the sponsor can describe this provision further in
that the court would still have authority to make a final
judgement on the successor guardian's nomination.
REPRESENTATIVE HANNAN, responding to Co-Chair Snyder, noted that
Mr. Paul Douglas, a constituent of hers, is committed to this
issue and has illuminating insights.
4:59:09 PM
PAUL DOUGLAS testified in support of HB 139. He stated he is
the father and legal guardian of his son who has been
incapacitated since birth. He explained that several years ago,
while exploring advance directives and end of life issues, he
came to the realization that after more than 50 years of caring
for, overseeing, and participating in the development,
education, and overall wellbeing of his son, Alaska's statutes
preclude him from participating in all lifesaving decisions
regarding medical procedures related to his son's quality of
life and end of life care. After several years of seeking
support from his local legislators to modify the existing
statutes, he continued, Representative Hannan and her staff
accepted the challenge.
MR. DOUGLAS stated that this issue is very real to him because
in September 2020 his son was diagnosed with stage five advanced
kidney disease with a projected life expectancy of six to twelve
months. He said he agrees with the medical community's
advisement that his son is not a candidate for dialysis and that
the only solution is to focus on quality-of-life issues.
However, he pointed out, current state statute does not allow
him to make those decisions on behalf of his incapacitated son.
MR. DOUGLAS asked committee members to consider the plight of
hundreds of other Alaska families as they face these same heart-
rending decisions. He said his intent today is to focus not
only on his own personal dilemma but to in a small way represent
the grave issues facing many other Alaska families caring for
incapacitated wards. He urged the committee to support HB 139.
REPRESENTATIVE SPOHNHOLZ requested Mr. Douglas to describe what
he means by "quality of life" decisions.
MR. DOUGLAS replied that providing life sustaining medical
procedures just to keep someone alive when it is known for what
purposes? He said his son is wheelchair bound after spinal
surgery in 2016 and is now suffering from untreatable advanced
kidney disease, so his lifetime is short and doing anything to
prolong that doesn't make sense. After discussions with his
[son's] personal care physician and other physicians, he stated,
the consensus is that that is the appropriate way to go. But,
he continued, according to statute he cannot make that decision
and tell the doctors this is what he wants to do.
5:03:23 PM
MR. CLARK resumed the sectional analysis. He explained that
Section 2 would amend 13.26.281(a), which refers to the
termination of guardianships, to add that the subsection is
subject to subsection (c) in the same section.
MR. CLARK stated that Section 3 would amend AS 13.26.281 by
adding a new subsection (c) that would allow a guardian of an
incapacitated person, while having capacity, to name a person to
become a successor guardian for the incapacitated person if the
guardian becomes incapacitated. He said this subsection also
notes that the person named by the guardian has priority as
successor, despite the categories of priority described in AS
13.26.311. He noted that this subsection further states that
the appointment of the successor guardian takes effect when the
appointee has given notice to the persons and in one of the
manners described in AS 13.26.296 and has accepted the
appointment.
MR. CLARK stated that Section 4 relates to the authority of a
guardian to decide on behalf of an incapacitated ward when it
comes to end of life decisions. He said Section 4 would amend
AS 13.26.316(c) which has to do with the general powers and
duties of guardians in two ways. The first is mainly
housekeeping and would substitute the word ["ensure" for
"assure"] in four places where it appears in the section. The
second is the addition of a new [paragraph] (8), which states
that a guardian may make the decision to withdraw or withhold
life-sustaining procedures from the ward if doing so is in the
best interest of the ward. Any such decision must be made
according to AS 13.52.045, which is addressed in Section 5 of
the bill.
MR. CLARK explained that Section 5 would amend AS 13.52.045,
which pertains to the conditions under which life-sustaining
procedures may be withdrawn or withheld, including that the ward
must have a qualifying condition as determined by the ward's
primary physician and at least one other physician if another is
available. A determination of permanent unconsciousness must
include a consultation with a neurologist. He further explained
that in this section "a guardian of an incapacitated person
under AS 13.26" is added to those persons who may determine that
life-sustaining procedures may be withheld or withdrawn from a
patient if doing so would be consistent with the patient's best
interests.
MR. CLARK concluded the sectional analysis by pointing out that
Section 6 would repeal AS 13.26.316(e)(3), which in current
statute prohibits a guardian from consenting to the withholding
of lifesaving procedures on behalf of their ward.
5:09:05 PM
REPRESENTATIVE MCCARTY asked whether a guardian wishing to
appoint [a successor] guardian via a will would be appointed in
a proactive manner. In response to Mr. Clark, he noted that
Section 1 refers to appointment [of a successor guardian] by
will and that Section 3 refers to naming a successor guardian in
case the guardian becomes incapacitated. He asked whether one
person would be the "runner up" in the flow.
MR. CLARK replied that in the case of a testamentary appointment
of a surrogate in case the current guardian dies, he assumes the
current guardian could take that step at any time during his or
her guardianship while still living. He said the naming a
successor guardian should the current guardian become
incapacitated must take place while the current guardian still
has capacity.
REPRESENTATIVE MCCARTY surmised that these provisions are not
asking for that to be done in advance.
MR. CLARK answered that these provisions would be completely
voluntary on the part of any guardian.
REPRESENTATIVE HANNAN responded that it must be done in advance.
For example, she said, the will of [the current guardian] would
have to include the testamentary selection. Or, if Mr. Douglas
decided he needed to have a guardian lined up in case he had a
stroke, that would have to be done now while Mr. Douglas has
full capacity to decide to choose someone to become the guardian
for his son. So, she added, they both would have to be done
prior to the event where they would be needed.
REPRESENTATIVE MCCARTY posed a scenario in which Mr. Douglas is
the guardian for Representative McCarty who is incapacitated.
He inquired whether Mr. Douglas must have a backup guardian in
case something happens to Mr. Douglas unexpectedly.
MR. CLARK replied that these provisions are something a guardian
may choose to do, not anything that a guardian would be required
to do. If a guardian did choose to appoint a successor guardian
by will, a testamentary procedure, then the guardian would have
to be alive to create that will and provision in that will.
Also, he continued, it is clear in the bill that the current
guardian must have capacity at the time of appointing a
successor guardian in the event of the current guardian's future
incapacity.
REPRESENTATIVE MCCARTY surmised that if something happened to
the guardian the courts become the guardian of the ward.
MR. CLARK deferred the question into the future when there is an
attorney available to answer it.
5:15:55 PM
CO-CHAIR ZULKOSKY stated she is interested in hearing from
invited testimony regarding the legal constructs around what
happens under current law in the absence of HB 139.
REPRESENTATIVE SPOHNHOLZ urged that the Office of Public
Advocacy be brought into this conversation since it handles
public guardianship for the State of Alaska and could help
unpack the legal framework for this in a constructive way. She
pointed out that there is familial guardianship and public
guardianship, and that care must be taken in crafting law to not
conflate the two. She inquired about the rationale in Section 4
for changing the word "assure" to "ensure" in multiple places.
MR. CLARK answered that according to the bill's drafting
attorney it is a style update that is legally preferred and
believed to be more explicit. Responding further to
Representative Spohnholz, he confirmed it is housekeeping and
not a policy call that is changing the meaning.
5:19:02 PM
REPRESENTATIVE KURKA asked whether the provision in Section 1
would cause problems with contingency appointees in a will and
other legal documents, or whether there is other statute that
would supersede these circumstances.
MR. CLARK replied that this provision is for the guardian of an
incapacitated ward to appoint, via the guardian's will, a
successor guardian for the ward should the guardian die.
REPRESENTATIVE KURKA posed a scenario in which he is the
guardian of a certain individual and via his will he has
appointed Representative McCarty as his replacement guardian.
The certain individual, he continued, has his own legal
statement that appoints Representative Kurka as guardian and
Representative Prax successor guardian. He asserted that the
certain individual's statement making Representative Prax the
successor would be a superseding document and that this
contingency is not in the bill's language.
MR. CLARK offered his assumption that if an incapacitated ward
had created a power of attorney or other document for health
care decisions while the ward had capacity, then that document
would supersede in healthcare decisions by the guardian. He
said this can be confirmed by attorneys during future hearings.
REPRESENTATIVE HANNAN pointed out that the difference in the
scenario that Representative Kurka is describing is someone who
has had capacity and made decisions. She said HB 139 addresses
the loophole of a person who has never had capacity to make
those decisions and documents. The concern here, she continued,
is the guardian who has always had that ability but loses it.
Currently, when the guardian dies, the courts make the decision
about who becomes the decider for that person. This family, she
continued, is asking for the ability to have the family
participate in that decision.
[HB 139 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 139 House HSS Hearing Request Memo 3.20.2021.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 139 |
| HB 139 National Guardianship Association Standards of Practice 3.20.2021.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 139 |
| HB 139 Guardianship and End-of-Life Decision Making--Journal of the American Medical Association 3.20.2021.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 139 |
| HB 139 Sectional Summary 3.20.2021.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 139 |
| HB 139 Sponsor Statement 3.20.2021.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 139 |
| HB 139 Version I.PDF |
HHSS 5/13/2021 3:00:00 PM |
HB 139 |
| HB 153 FN- HSS.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 153 |
| HB 139 DOA FN.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 139 |
| HB 153a Invited Testimony for 20 April 2021.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 153 |
| HB0153A.PDF |
HHSS 4/20/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM |
HB 153 |
| HB153 - Sectional Analysis.pdf |
HHSS 4/20/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM |
HB 153 |
| HB153 - Sponsor Statement.pdf |
HHSS 4/20/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM |
HB 153 |
| HB 153 Supporting Documents and Education as of 04.19.2021.pdf |
HHSS 4/20/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM |
HB 153 |
| SB 89 Fiscal Note 1 DHSS.PDF |
HHSS 4/29/2021 3:00:00 PM HHSS 5/4/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM SHSS 3/18/2021 1:30:00 PM |
SB 89 |
| SB 89 Sectional Analysis Version GS 1675 A.pdf |
HHSS 5/13/2021 3:00:00 PM SFIN 4/7/2021 9:00:00 AM SHSS 3/18/2021 1:30:00 PM |
SB 89 |
| SB 89 FAQ on Final Rule prepared by Coalition for Community Choice.pdf |
HHSS 4/29/2021 3:00:00 PM HHSS 5/4/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM SFIN 4/7/2021 9:00:00 AM SHSS 3/18/2021 1:30:00 PM |
SB 89 |
| SB 89 One Page Summary.pdf |
HHSS 4/29/2021 3:00:00 PM HHSS 5/4/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM SFIN 4/7/2021 9:00:00 AM SHSS 3/18/2021 1:30:00 PM |
SB 89 |
| SB 89 All Ways Caring Letter of Support.pdf |
HHSS 4/29/2021 3:00:00 PM HHSS 5/4/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM SHSS 3/18/2021 1:30:00 PM |
SB 89 |
| SB 89 Commission on Aging Letter of Support.pdf |
HHSS 4/29/2021 3:00:00 PM HHSS 5/4/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM SHSS 4/1/2021 1:30:00 PM |
SB 89 |
| SB 89 Letter of Support Colony Assisted Living Homes.pdf |
HHSS 5/13/2021 3:00:00 PM SHSS 4/1/2021 1:30:00 PM |
SB 89 |
| SB 89 Letter of Support Samash_Redacted.pdf |
HHSS 4/29/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM SHSS 3/18/2021 1:30:00 PM |
SB 89 |
| SB 89 Settings Information webpage.pdf |
HHSS 5/13/2021 3:00:00 PM |
SB 89 |
| SB 89 Amendments.pdf |
HHSS 4/29/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM |
SB 89 |
| SB 89 Explanation of Changes ver. A to B 4.13.2021.pdf |
HHSS 4/29/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM SFIN 4/14/2021 9:00:00 AM |
SB 89 |
| SB 89 Amendments.pdf |
HHSS 5/4/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM |
SB 89 |
| HB 106 Sectional Analysis version A.pdf |
HHSS 5/13/2021 3:00:00 PM HSTA 3/11/2021 3:00:00 PM |
HB 106 |
| HB 106 Fiscal Note HSS PS.PDF |
HHSS 5/13/2021 3:00:00 PM HSTA 3/11/2021 3:00:00 PM |
HB 106 |
| HB 106 Fiscal Note DPS CJISP.PDF |
HHSS 5/13/2021 3:00:00 PM HSTA 3/11/2021 3:00:00 PM |
HB 106 |
| HB 106 DPS Prensentation 3.11.21 Distributed.pdf |
HHSS 5/13/2021 3:00:00 PM HSTA 3/11/2021 3:00:00 PM |
HB 106 |
| HB 106 Hearing Request 3.1.21.pdf |
HHSS 5/13/2021 3:00:00 PM HSTA 3/11/2021 3:00:00 PM |
HB 106 |
| HB 106 Sponsor Statement 2.18.21.pdf |
HHSS 5/13/2021 3:00:00 PM HSTA 3/11/2021 3:00:00 PM |
HB 106 |
| HB 106 version A.PDF |
HHSS 5/13/2021 3:00:00 PM HSTA 3/11/2021 3:00:00 PM |
HB 106 |
| HB 106 Additional Info - Missing Persons under 21 Statistics.pdf |
HHSS 5/13/2021 3:00:00 PM HSTA 3/16/2021 3:00:00 PM |
HB 106 |
| HB 106 Sectional Analysis 04.12.2021.pdf |
HHSS 4/22/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM |
HB 106 |
| HB 106 Sponsor Statement 04.12.2021.pdf |
HHSS 4/22/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM |
HB 106 |
| HHSS HB 106 DPS Presentation 04.12.2021.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 106 |
| HB 106 DPS Fiscal Note 04.12.2021.pdf |
HHSS 4/22/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM |
HB 106 |
| HB 106 HSS Fiscal Note 04.12.2021.pdf |
HHSS 4/22/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM |
HB 106 |
| HHSS HB 106 DPS Presentation 04.22.2021.pdf |
HHSS 4/22/2021 3:00:00 PM HHSS 5/13/2021 3:00:00 PM |
HB 106 |
| HB 139 Explanation of Changes, Version I to Version G 5.10.21.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 139 |
| HB 139 Blank CS Ver.G 5.10.21.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 139 |
| HB 139 Version G Sectional Summary 5.12.2021.pdf |
HHSS 5/13/2021 3:00:00 PM |
HB 139 |
| SB 89 Amendments, 5.13 .pdf |
HHSS 5/13/2021 3:00:00 PM |
SB 89 |