Legislature(2011 - 2012)CAPITOL 120
03/18/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Attorney General | |
| HB150 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | HB 150 | TELECONFERENCED | |
HB 150 - PROTECTION OF VULNERABLE ADULTS/MINORS
1:56:01 PM
CHAIR GATTO announced that the final order of business would be
HOUSE BILL NO. 150, "An Act relating to the protection of
property of persons under disability and minors; relating to the
crime of violating a protective order concerning certain
vulnerable persons; relating to aggravating factors at
sentencing for offenses concerning a victim 65 years or older;
relating to the protection of vulnerable adults; amending Rule
12(h), Alaska Rules of Criminal Procedure; amending Rule 45(a),
Alaska Rules of Criminal Procedure; amending Rule 65, Alaska
Rules of Civil Procedure; amending Rule 17, Alaska Rules of
Probate Procedure; amending Rule 9, Alaska Rules of
Administration; and providing for an effective date."
CHAIR GATTO noted that the subcommittee on HB 150 has produced a
final report [detailing the differences between the original
bill and a proposed committee substitute included in members'
packets].
1:56:32 PM
REPRESENTATIVE THOMPSON moved to adopt the proposed committee
substitute (CS) for HB 150, Version 27-GH1722\I, Mischel,
3/17/11, as the working document.
REPRESENTATIVE HOLMES objected for the purpose of discussion.
1:58:15 PM
SARAH MUNSON, Staff, Representative Carl Gatto, Alaska State
Legislature, referring to the aforementioned final report,
explained that Version I contains a new Section 1 and a new
Section 2 that propose to change the phrase, "an elderly person
or disabled adult" to the phrase, "a vulnerable adult" in AS
08.29.200(b)(2) and AS 08.63.200(b)(2) respectively; these new
sections were added at the request of the Department of Law
(DOL) and the revisor of statutes because the phrase, "a
vulnerable adult" is what's now being used by the DOL to mean
someone [18 years of age or older] who meets certain
vulnerability criteria. Under Version I, proposed AS
13.26.207(a) now contains the words, "and other persons as
ordered by the court" in the second to last sentence after the
words, "respondent's attorney"; this change to Alaska's
temporary conservatorship statutes would allow the court to
notify those who would most need to know about the
conservatorship, such as various financial institutions.
MS. MUNSON explained that Proposed AS 13.26.209(a) underwent two
changes: first, it now contains the additional sentence, "A
petition filed on behalf of a protected person by another person
must be accompanied by proof of service of the petition on the
protected person or the person's attorney unless service would
cause an immediate threat of harm to the best interests of the
protected person and the petition includes a written explanation
of the harm."; and, second, the last sentence now reads, "The
court shall cause a copy of the protective order, any related
orders, and a scheduling order, if any, to be served on the
respondent and the protected person." These changes regarding
notification address a concern raised in the subcommittee
meeting that an ex parte protective order could be used by
someone to victimize a vulnerable adult; under these two
changes, a vulnerable adult would be notified of the ex parte
protective order unless such notification would be harmful to
him/her.
REPRESENTATIVE GRUENBERG, in response to a question regarding
Sections 1 and 2 of Version I, noted that the term, "vulnerable
adult" is defined in AS 47.24.900 as:
(16) "vulnerable adult" means a person 18 years of age
or older who, because of physical or mental
impairment, is unable to meet the person's own needs
or to seek help without assistance.
MS. MUNSON added that Section 43 of Version I is proposing to
amend that definition thus:
(16) "vulnerable adult" means a person 18 years of age
or older who, because of incapacity, mental illness,
mental deficiency, physical illness or disability,
advanced age, chronic use of drugs, chronic
intoxication, fraud, confinement, or disappearance
[PHYSICAL OR MENTAL IMPAIRMAENT], is unable to meet
the person's own needs or to seek help without
assistance.
2:06:07 PM
MS. MUNSON then explained that proposed AS 13.26.209(d) now
stipulates that notice shall additionally be provided to the
protected person; this is a conforming change regarding
notification of a hearing to extend an ex parte protective
order. In Version I's proposed AS 13.26.209(f), the first
sentence now reads, "A third party that has received actual or
legal notice of a protective order issued under this section
shall comply with the order."; the sentence that began with the
words, "A third person" now begins with the words, "A third
party"; and there is now an additional sentence that says, "As
used in this section, 'actual or legal notice' means delivery by
mail or facsimile at the most recently known place of residence
or business of the third party or registering with the
Department of Public Safety." These changes to proposed AS
13.26.209(f) were suggested by the administration, and reflect
how notice would be provided to third parties such as banks.
MS. MUNSON explained that what was formerly proposed AS
13.26.325 - pertaining to the definition of the word, "fraud" -
was changed in Version I to proposed AS 13.26.324; this change
reflects the fact that a section 325 has already been used in
AS 13.26. Furthermore, proposed AS 13.26.324(2) now more
accurately defines the word, "fraud" in part as, "offenses
against property under AS 11.46.100 - 11.46.740"; and a
conforming change to a similar definition in AS 44.21.415(g) is
being proposed via a new Section 14. Version I's proposed AS
18.65.530(a)(2) fixes a drafting error - noticed by Legislative
Legal and Research Services - via use of the word, "or" instead
of the word, "and". Proposed AS 47.24.010(e) now retains the
existing phrase, "at the earliest opportunity"; this change
ensures that law enforcement officers won't unnecessarily delay
notification.
2:13:04 PM
MS. MUNSON referred to the new subsections being added to AS
47.24.015, and explained that in Version I, proposed subsection
(h) has been rewritten such that in order to conduct an
investigation, the department must seek a subpoena - this change
addresses a concern that as originally written, subsection (h)
raised Fourth Amendment issues; that when subsection (h) was
rewritten, the language in the original bill's proposed
subsection (j) became obsolete, and so Version I no longer
contains that language and the remainder of AS 47.24.015's
proposed subsections have been relettered accordingly; that that
deletion has also resulted [in the deletion of language in the
bill reflecting an indirect court rule change to Rule 65 of the
Alaska Rules of Civil Procedure]; and that Version I's proposed
subsection (m) now uses the phrase, "maintained by any person"
rather than unnecessarily providing for a specific list of
people/entities that maintain financial records, since if the
department wants access to financial records, it doesn't matter
who is holding them.
MS. MUNSON explained that to reflect the statutory creation of
[temporary conservatorships via proposed AS 13.26.207], Version
I's proposed AS 47.24.016(a) now also references conservators;
this conforming change was also made to proposed AS 47.24.017(a)
[and to the first sentence in proposed AS 47.24.050(b)].
Furthermore, proposed AS 47.24.016(a)(1) now also references
legal separation proceedings, thereby precluding a spouse who
has initiated such a proceeding from being selected by the
department as a vulnerable adult's [surrogate decision maker].
Proposed AS 47.24.19(c), in two places, now references "person"
instead of providing for a list of specific people against whom
the department may seek an injunction preventing interference in
the provision of protective services; this change reflects the
fact that anyone who is interfering in a vulnerable adult's
receiving of protective services should be stopped.
REPRESENTATIVE GRUENBERG, in response to a question, explained
that the term, "attorney-in-fact" as used in AS 47.24 refers to
a person operating under power of attorney or some other
delegation of authority.
MS. MUNSON noted that the aforementioned conforming change
regarding conservators should also be made to the second
sentence in proposed AS 47.24.050(b) via an amendment that would
add the term, "conservator," to page 16, line 14, after the
term, "guardian,".
2:19:30 PM
MS. MUNSON went on to explain that proposed AS 47.24.900(2)(A) -
which defines the word, "abuse" in terms of an action taken with
a specific culpable mental state - now also includes the
culpable mental state of "knowing". Proposed AS 47.24.900(4)
now uses the term, "includes", rather than the term, "means", in
its definition of the term, "informed decision"; this change
ensures that being free from undue influence would be considered
a component of, rather than a strict definition of, an informed
decision.
REPRESENTATIVE LYNN questioned whether the bill - for purposes
of ensuring that vulnerable adults are making an informed
decision - addresses the issue of interpreters for those not
fluent in English.
MS. MUNSON offered her understanding that the bill does not
specifically address that issue, but ventured that arranging for
an interpreter would be part of the protective services that the
department provides to a vulnerable adult. She surmised that no
one would consider a vulnerable adult to have consented to
something that he/she didn't understand.
MS. MUNSON went on to explain that proposed AS 47.24.900(7)(B)
now also includes the term, "fraud," in its definition of the
term, "exploitation", as well as a reference to proposed AS
13.26.324(1) and (2)'s specific definition of the term, "fraud".
She noted that in order to avoid using circular logic, proposed
AS 13.24.324(3)'s aspect of the term, "fraud" was specifically
not included in the definition of that term as it's being used
in proposed AS 47.24.900(7)(B) to partly define the term,
"exploitation". Proposed 47.24.900(9) - which defines the term
"neglect" - now also includes the culpable mental state of
"knowing"; and now uses the term, "includes", rather than the
term, "means", in its definition of the phrase, "essential care
or services". This latter change addresses the possibility that
essential care and essential services aren't only food,
clothing, shelter, medical care, and supervision.
2:26:02 PM
MS. MUNSON explained that proposed AS 47.24.900(11) - which
defines the term, "protective services" - has undergone some
formatting and wording changes but not changes to meaning. One
example of a wording change is that what is now proposed
subparagraph (D) says, "staying financial transactions" instead
of, "freezing an account at a financial institution". Proposed
AS 47.24.900(15)(D) - which contains an aspect of the definition
of the phrase, "unable to consent" - now also includes the
concepts of waste or dissipation of income or assets. Proposed
AS 47.24.900(18) has been rewritten such that it now defines the
term, "fiduciary duty" to mean "the duty of a third party who
stands in a position of trust or confidence with another person,
including a vulnerable adult, to act with due regard for the
benefit and interest of that person"; this definition, she
relayed, comes from [a 1969 Alaska Supreme Court case, Paskvan
v. Mesich].
MS. MUNSON explained that proposed AS 47.24.900(21) has been
rewritten such that it now defines the term, "undue influence"
to mean, "the use by a person who stands in a position of trust
or confidence of the person's role, relationship, or authority
to wrongfully exploit the trust, dependency, or fear of a
vulnerable adult to gain control over the decision making of the
vulnerable adult, including decision making related to finances,
property, residence, and health care". This definition, in
addition to partially conforming to language used in other parts
of the bill regarding persons who stand in a position of trust
or confidence, replaces the concept of "deceptively" with the
concept of "wrongfully" in order to avoid using circular logic.
REPRESENTATIVE GRUENBERG noted that one could act wrongfully in
exerting undue influence coercively, for example, but still not
be acting deceptively, [thereby indicating that "wrongfully" is
the more inclusive term].
MS. MUNSON went on to explain that Version I's proposed direct
court rule change to Rule 12(h) of the Alaska Rules of Criminal
Procedure - regarding continuance of trial - now involves the
addition of the following language after that rule's existing
first sentence: "In deciding whether to grant the motion, the
court shall consider the victim's circumstances and the effect
the delay would have on the victim, particularly a victim of
advanced age or extreme youth. The court shall place its
findings on the record.". Similarly, Version I's proposed
direct court rule change to Rule 45(a) of the Alaska Rules of
Criminal Procedure - regarding priorities in scheduling criminal
cases - now involves the addition of the following sentence
after that rule's existing second sentence: "The court shall
consider the circumstances of the victim, particularly a victim
of advanced age or extreme youth, in setting the trial date.".
These two direct court rule changes, she indicated, would ensure
that the court considers the age of the victim without simply
giving preference to a certain group of people over others based
on age, and are necessary in order to address the problem of
some cases either being delayed or not going to trial at all
because a witness or the victim himself/herself has died as a
result of his/her advanced age.
MS. MUNSON explained that under Version I, Section 47's
subsection (c) is now proposing an amendment to uncodified law
to reflect the fact that [the last sentence of] Version I's
proposed AS 13.26.207(a) would effect an indirect court rule
amendment to Rule 77 of the Alaska Rules of Civil Procedure by
requiring a hearing within 72 hours of the filing of a petition
for the appointment of a temporary conservator. In conclusion,
she relayed that in order to ensure that the [Alaska Court
System (ACS)] has enough time to create the forms necessitated
by the enactment of HB 150, Version I is now proposing an
effective date of July 1, 2011, rather than an immediate
effective date as proposed in the original bill.
REPRESENTATIVE HOLMES removed her objection to the motion to
adopt Version I as the working document. There being no further
objection, Version I was before the committee.
2:35:45 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to
add the word, "conservator," to page 16, line 14, after the
word, "guardian,". There being no objection, Amendment 1 was
adopted.
REPRESENTATIVE GRUENBERG then directed attention to language on
page 8, lines 9-10 - existing AS 44.21.415(g)(2) - defining the
term, "older Alaskan" to mean a person residing in the state who
is 60 years of age or older. Noting that AS 44.21.415
establishes the duties of the state's office of elder fraud and
assistance, he questioned whether that statute ought to be
amended such that that office could then provide assistance to
any person 60 years of age or older who is physically present in
Alaska regardless of whether he/she actually resides in Alaska.
The committee took an at-ease from 2:39 p.m. to 2:49 p.m.
REPRESENTATIVE GRUENBERG, referring to an issue raised earlier
by Representative Lynn, asked whether there were any provisions
of statute that provide the right of an interpreter to a
vulnerable adult not fluent in English.
2:53:08 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), explained that federal law requires the court to provide
interpreters to any non-English-speaking persons involved in a
court proceeding.
2:53:54 PM
SCOTT STERLING, Supervising Attorney, Elder Fraud and
Assistance, Office of Public Advocacy (OPA), Department of
Administration (DOA), in response to questions regarding AS
44.21.415 and the term, "residing" as used in its subsection
(g)(2)'s definition of "older Alaskan", explained that his
office first ascertains whether an elderly person who has been
victimized has established actual residency in Alaska, or
whether he/she was victimized while just visiting the state. If
the latter, then his office still attempts to provide what
assistance it can, but doesn't normally engage in full-fledged
representation. For example, his office will provide an older
visitor who's been victimized with a reference to law
enforcement, and will help him/her get immediate assistance from
social service agencies if needed. He mentioned that such cases
are rare, that it's more common that an Alaska resident who was
exploited while living in Alaska then moves out of state, and
it's his office's policy to then finish the [advocacy] work
begun while the victim was residing in Alaska. He noted, too,
that because the statute uses the term, "person" rather than the
term, "citizen", his office would provide assistance to an
illegal alien residing in Alaska who's been victimized, although
to date no such person has sought assistance from his office.
MR. STERLING, in response to questions regarding interpreters,
explained that when his office gets a client who requires an
interpreter, his office attempts to find a pro bono interpreter
in order to better communicate with that client, and has done so
in two instances that he is aware of. He is unaware, however,
of any specific statute, court rule, or constitutional provision
that requires an executive branch agency to provide an
interpreter to a person seeking services, though under his
ethical obligations as an attorney, he added, if he is unable to
find a pro bono interpreter, he would seek permission from his
superiors to retain one. In response to a further question, he
opined that in terms of his office's operations and provision of
services under AS 44.21.415, the current system is working
pretty well with volunteer interpreters, and relayed should he
ever need to actually retain an interpreter, he would do his
best to persuade his superiors to allow it.
REPRESENTATIVE GRUENBERG indicated a desire to research that
issue further.
REPRESENTATIVE THOMPSON - referring to the language of proposed
AS 13.26.209(f) that read, "As used in this section, 'actual or
legal notice' means delivery by mail or facsimile at the most
recently known place of residence or business of the third party
or registering with the Department of Public Safety." - asked
how registering with the Department of Public Safety (DPS)
constitutes notifying a third party about the existence of a
protective order.
3:04:01 PM
KELLY HENRIKSEN, Assistant Attorney General, Human Services
Section, Civil Division (Juneau), Department of Law (DOL),
surmising that [the third party referred to in that provision is
primarily going to be a financial institution], explained that
the language regarding registering with the DPS refers to the
DPS's registry of protective orders, and that once a protective
order is so registered, that in itself is considered to be
providing legal notice, since financial institutions already
check that registry during the normal course of business. She
offered her belief, additionally, that such businesses could
simply set up a system of routinely checking that registry every
day.
REPRESENTATIVE GRUENBERG questioned what the impact would be of
removing the language regarding registering a protective order
with the DPS.
MR. STERLING predicted that it could prove very difficult for a
vulnerable adult from a rural area of the state to deliver
actual notice to a financial institution that doesn't have a
branch in the area. The language providing the alternative of
registering a protective order with the DPS would remedy such
situations. He acknowledged, though, that under the current
language of proposed AS 13.26.209(f), perhaps simply sending a
facsimile of the protective order to the financial institution's
nearest branch or headquarters would suffice, particularly given
that rarely are financial institutions locally owned and
operated anymore. He also mentioned that although the financial
institutions that his office deals with have uniformly been very
cooperative in attempting to stop fraudulent activity, they have
relayed that they often feel constrained by provisions of the
law that require them to honor even a nominally-valid power of
attorney. The hope is that providing for a protective order
would protect both the third party and the vulnerable adult from
the fraudulent acts of the respondent.
[Chair Gatto turned the gavel over to Vice Chair Thompson.]
VICE CHAIR THOMPSON questioned whether proposed AS 13.26.209(f)
ought to be amended such that the protective order would have to
be both delivered by mail or facsimile and registered with the
DPS.
MR. STERLING surmised that such a change might prove more
burdensome on the vulnerable adult - the victim - than would be
desirable. Again, providing that a protective order registered
with the DPS is legally noticed to a third party would give the
victim another option in situations where he/she is unable to
deliver actual notice.
[Vice Chair Thompson returned the gavel to Chair Gatto.]
MS. HENRIKSEN concurred.
[After the following motion but before adjournment, members
thanked various staff members and department personnel for their
subcommittee work on HB 150.]
3:16:58 PM
REPRESENTATIVE THOMPSON moved to report the proposed CS for
HB 150, Version 27-GH1722\I, Mischel, 3/17/11, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection,
CSHB 150(JUD) was reported from the House Judiciary Standing
Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB150 Supporting Documents-Letter ACoA 03-07-11.pdf |
HJUD 3/18/2011 1:00:00 PM |
HB 150 |
| John J. Burns Biography.pdf |
HJUD 3/18/2011 1:00:00 PM |
|
| John J. Burns Resume 03-02-11.pdf |
HJUD 3/18/2011 1:00:00 PM |
|
| HB150 CS Version I 03-17-11.pdf |
HJUD 3/18/2011 1:00:00 PM |
HB 150 |
| HB150 Working Group Final Report 03-18-11.pdf |
HJUD 3/18/2011 1:00:00 PM |
HB 150 |