Legislature(2021 - 2022)BUTROVICH 205
01/31/2022 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SJR19 | |
| HB155 | |
| SB119 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SJR 19 | TELECONFERENCED | |
| += | SB 129 | TELECONFERENCED | |
| += | HB 155 | TELECONFERENCED | |
| + | SB 119 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 155-COURT SYSTEM PROVIDE VISITORS & EXPERTS
2:08:15 PM
CHAIR HOLLAND reconvened the meeting and announced the
consideration of HOUSE BILL NO. 155 "An Act relating to court-
appointed visitors and experts; relating to the powers and
duties of the office of public advocacy; relating to the powers
and duties of the Alaska Court System; and providing for an
effective date."
[This is the first hearing on HB 155.]
2:08:47 PM
REPRESENTATIVE CHRIS TUCK, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 155, stated that this bill was a
collaborative effort to fix a flaw in the Court Visitor Program
[also known as court visitors]. It would transfer the office
from the Office of Public Advocacy (OPA) in the executive branch
to the Alaska Court System in the judicial branch. Currently,
court visitors make recommendations on guardianships and
conservatorships. He paraphrased the sponsor statement.
[Original punctuation provided]:
The Court Visitor Program was created to act as an
investigative arm of the Alaska Court System in
certain protective probate proceedings. Court visitors
conduct independent investigations into whether
guardianships or conservatorships are necessary. They
also review each existing guardianship and
conservatorship at least once every three years.
Additionally, court visitors participate in
psychotropic medication proceedings during involuntary
commitments to investigate whether the patient can
give or withhold informed consent. Since 1984, the
court visitor program has been administered by the
Office of Public Advocacy. Unfortunately, there is no
legislative history that clarifies why this judicial
branch program was placed under the direction of an
executive branch office. The only inference that can
be made is that anything having to do with
"guardianships" was placed with OPA because the office
provides public guardians and attorneys for these
proceedings. As the court visitor program has
continued to grow, it has become increasingly unwieldy
because OPA cannot effectively supervise independent
contractors who act as "the eyes and ears" of the
court. There is also duplicity of services between the
executive and judicial branches of government because
the court system independently contracts with and
directly pays for court visitors in conservatorship
proceedings. OPA is only responsible for providing
court visitors in guardianship proceedings. The
differences between how OPA and the Court System
handle these proceedings have caused frustration among
the court visitors who work both types of cases. Both
the Alaska Court System and OPA agree that
transferring the program to the court system is long
overdue and would make the program more efficient. The
transfer would allow the Court System to put in place
standards for reports and who it chooses to use as a
court visitor.
2:12:09 PM
MICHAEL MASON, Staff, Representative Chris Tuck, Alaska State
Legislature, Juneau, Alaska, on behalf of the sponsor, presented
the sectional analysis for HB 155.
Section 1 Repeals and reenacts AS 13.26.226 (d) to
read: The Alaska Court System shall provide visitors
and experts in guardianship proceedings under AS
13.26.291. The Alaska Court System may contract for
services of court-appointed visitors and experts.
Section 2 Amends AS 13.26.291 (a) to stipulate that
the Alaska Court System shall bear the costs of the
visitors and experts appointed under AS 13.26.226 (c).
Section 3 Amends AS 44.21.410 (a) to remove
paragraph 2 and renumber the remaining paragraph.
2:13:09 PM
Section 4 Amends AS.21.420 (c) to remove language
allowing the Commissioner of Administration to
contract for services for court visitors and experts
to perform the duties set out in AS 44.21.410.
Section 5 Amends AS 44.21.440 (b) to remove a
reference to court visitors from language prohibiting
the Office of Public Advocacy from using improper
pressure to influence the professional judgment of a
person paid by the office.
Section 6 Amends AS.30.839 (d) to remove language
allowing the court to direct the Office of Public
Advocacy to provide a court visitor to investigate
whether a patient can give or withhold informed
consent in psychotropic medication proceedings during
involuntary commitments.
2:13:58 PM
Section 7 Amends 47.30.839 to add a new subsection
to read: (j) The Alaska Court System shall provide
visitors in proceedings under this section. The Alaska
Court System may contract for services of court-
appointed visitors.
Section 8 Amends the uncodified law of the State of
Alaska to add transition language stipulating that the
act applies to guardianship proceedings under AS
13.26.291 and proceedings under AS.30.839 commenced on
or after the effective date of the act. The section
further amends the uncodified law of the State of
Alaska to ensure that the Office of Public Advocacy
shall provide visitors and experts in guardianship
proceedings and visitors in proceedings under AS
47.30.839 that were commenced before the effective
date of the act.
Section 9 Provides an effective date of July 1,
2021.
2:15:11 PM
CHAIR HOLLAND turned to invited testimony on HB 155.
2:15:41 PM
DOUG WOOLIVER, Deputy Admin Director, Office of the
Administrative Director, Alaska Court System, Anchorage, Alaska,
(via teleconference), stated that the Alaska Court System worked
with the Office of Public Advocacy (OPA) on the bill. The court
system agrees with the proposal in HB 155. For some odd reason,
the Court Visitor Program was housed in OPA. As the numbers of
people who need assistance due to old age will continue to
increase, HB 155 makes sense. This bill will transfer the Court
Visitor Program from OPA to the Alaska Court System. He
characterized HB 155 as a good clean-up bill. He recalled that
this transfer has been discussed for many years, as far back as
then-Governor Frank Murkowski's administration. The court
system, OPA, and court visitors support this change. It is
better for people who work for the Alaska Court System but are
housed in OPA to be under the courts.
2:18:28 PM
JAMES STINSON, Director, Office of Public Advocacy, Department
of Administration, Anchorage, Alaska, (via Teams), echoed Mr.
Wooliver's testimony. He was unsure of the reason this function
was placed the Office of Public Advocacy (OPA) in the first
place, but he surmised that it may have been because it dealt
with guardianships. However, the court visitors act as neutral
observers. One legislative audit recommended the program should
be housed within the court system because it creates the
perception that OPA conducts the work and makes all the
recommendations. In doing so, the court system would have more
control over these important proceedings. The court system will
set standards of practice and requirements for court visitor
reports, which are especially important since these proceedings
substantially restrict a person's financial liberty or impose a
full guardianship. He offered his view that this function is not
something that OPA can manage well, but the court system can. He
emphasized that the state must address the court visitor
function since Alaska's aging demographic will lead to more
guardianship proceedings. If the program remains in OPA, the
agency will need to request more resources. He characterized the
bill as a win-win.
2:22:56 PM
SENATOR MYERS said he noticed the fiscal impact was $100,000 in
additional funding for the court system to take over the
program.
MR. MASON responded that OPA and the court system worked
together on the transition plan. He deferred to Mr. Wooliver.
MR. WOOLIVER answered that if the court visitor program remains
with OPA, that agency would also need an additional person to
manage it because the number of guardianship and
conservatorships has grown and will continue to grow.
2:24:59 PM
SENATOR HUGHES acknowledged the efficiencies that this transfer
would provide. She wondered if there was a check and balance
between the branches. She heard testimony from agencies that
this transfer creates efficiencies, and the court system and OPA
support the proposed change. She asked if AARP and the
Governor's Commission on Aging support HB 155 since the court
visitors serve Alaskans.
2:26:21 PM
MR. STINSON responded that anecdotally the perception is that
OPA has too much influence over the proceedings because the
court documents reflect that the Office of Public Advocacy (OPA)
provides the services. The only complaints he has received
questioned the control OPA might have in the process. The last
legislative audit highlighted that perception. OPA provides the
respondent's counsel so that the attorney might be arguing the
case for someone who does not want a conservatorship or
guardianship. The attorney might say that the party does not
warrant guardianship. Still, OPA also funds the court visitor,
whose recommendation might state that guardianship was
necessary. He noted that the perception of a conflict is in the
status quo. Moving the court visitor function to the court
system helps identify that a court visitor is a neutral person.
SENATOR HUGHES asked to hear support from individual Alaskans or
groups supporting Alaskans for this change. While she is not
opposed to HB 155, she would like that input.
2:28:34 PM
MR. MASON offered to reach out to the Alaska Commission on
Aging. He reported that he did not receive any negative feedback
on the bill. He related that the parties are all in agreement
with this change.
2:29:11 PM
SENATOR SHOWER asked if the legislative oversight of the court
visitors would be budgetary.
REPRESENTATIVE TUCK answered yes.
SENATOR SHOWER asked if the court system should house the
guardianship and conservatorship functions or if one function
should stay with OPA.
MR. STINSON answered that the work is essentially the same. He
explained that someone who needs a conservatorship might need
guardianship later. The same court visitors will handle the
cases.
2:30:57 PM
SENATOR SHOWER referred to page 3, Section 5, which read:
(b)The office of public advocacy may not use improper
pressure to influence the professional judgment of a
person who is paid by the office of public advocacy to
act as an attorney or [,] a guardian ad litem [, OR A
VISITOR] for a guardianship or conservatorship
established under AS 13.26.
SENATOR SHOWER acknowledged that this language might be existing
law, but it is still good to review it. He wondered if any
penalties were associated with improper pressure to influence
professional judgment.
MR. STINSON responded that he was unsure. He stated that this
provision would also apply to not exerting influence on guardian
ad litem or attorneys. In those two instances, it is easier
since it is a judicial function. OPA has historically erred on
the side of caution. He surmised that Section 5 brings
heightened attention with that clause. It is easier to
understand the Rules of Conduct for attorneys' duties. OPA
provides administration of a court function, so it does not have
substantial oversight or involvement in what court visitors do.
He said he was unsure of the penalty provisions.
2:32:08 PM
SENATOR SHOWER expressed an interest in the penalty provisions.
He referred to page 4, Section 7, which read:
(j) The Alaska Court System shall provide visitors in
proceedings under this section. The Alaska Court
System may contract for services of court-appointed
visitors.
SENATOR SHOWER wondered if the court system decided it would not
contract for services, would the state pay more to process
additional cases.
REPRESENTATIVE TUCK responded that this would be a year-to-year
budget item based on need and demand. He characterized it as a
"gray avalanche" because the aging process translates to people
needing more services. He referred to the fiscal note. Even
without this bill, the state will provide court visitor
services. The court system and OPA currently negotiate this
function. He offered to research the penalty provisions but did
not believe any penalties applied.
REPRESENTATIVE TUCK reminded members that the Office of Public
Advocacy (OPA) is by nature, an advocacy group. These statutory
provisions establish limitations for the advocacy group by
outlining what they shall and shall not do. However, it makes
more sense to house court visitors in the court system since
they must be neutral.
2:34:08 PM
SENATOR SHOWER expressed concern that as the need for court
visitors grows, it will impact the state since it would require
additional positions.
2:34:30 PM
SENATOR KIEHL asked if the court visitors and experts remain
throughout the conservatorship, guardianship, or time in the
medical system or if the court visitors investigate and make
single reports to the court.
2:35:01 PM
MR. MASON deferred to Mr. Stinson.
2:35:13 PM
MR. STINSON answered that there would be an initial proceeding
followed by a review every three years to determine that the
substantial limitation of liberty was still appropriate. He
stated that a subsequent investigation and report would be
required every three years. Thus, three-year reviews will spike
as the number of total guardianships increases. He explained
that guardianships tend to remain for a person's natural life.
For example, a severely disabled juvenile could become an adult
who might live to be 80-years-old and require full guardianship.
These cases tend to be lengthy, unlike civil or criminal cases
that may be resolved in one or two years when the verdict is
issued.
2:36:20 PM
SENATOR KIEHL referred to the transition section. He asked
whether the three-year reviews were new proceedings or the same
guardianship proceeding throughout the person's natural life.
MR. STINSON answered that it is the same in that it refers to
the same person, and if at all possible, the same court visitor
would conduct the three-year review.
2:37:01 PM
SENATOR KIEHL asked for clarity whether the three-year review
remains the same proceeding; if not, the two entities would be
running the program for decades. He estimated that if the three-
year reviews are new proceedings, the transition period would be
limited to three years in which both agencies run a portion of
the program.
2:37:29 PM
MR. STINSON explained the transition provision. OPA and the
court system have agreed that OPA would pay for the services
provided prior to the effective date. The rest of the costs
would be passed on to the court system. He clarified that there
are no in-house position control numbers (PCNs) that provide
these services. The court visitors are all independent
contractors. The funding that is transferred to the court system
from OPA pays for independent contractors. He explained that the
transition would work such that OPA would stop paying on the
effective date of the bill, and the court system would begin
paying for the services. He stated that OPA does not administer
the proceedings since independent court visitors provide the
investigation and report to the court. The transition refers to
the date for the transfer of responsibility.
SENATOR KIEHL offered to follow up with the sponsor to ensure
that the transition language in Section 8 matches with the
intent.
2:38:50 PM
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 119 Sponsor's Statement Final.pdf |
SEDC 4/23/2021 9:00:00 AM SJUD 1/31/2022 1:30:00 PM |
SB 119 |
| CS SB 129 version O.pdf |
SJUD 1/28/2022 1:30:00 PM SJUD 1/31/2022 1:30:00 PM |
SB 129 |
| HB 155 Sponsor Statement v. B 4.5.2021.pdf |
HJUD 4/5/2021 1:00:00 PM HJUD 4/7/2021 1:00:00 PM SJUD 1/31/2022 1:30:00 PM |
HB 155 |
| HB 155 Sectional Analysis v. B 4.5.2021.pdf |
HJUD 4/5/2021 1:00:00 PM HJUD 4/7/2021 1:00:00 PM SJUD 1/31/2022 1:30:00 PM |
HB 155 |
| HB 155 Supporting Document - Office of Public Advocacy Letter 3.31.2021.pdf |
HJUD 4/5/2021 1:00:00 PM HJUD 4/7/2021 1:00:00 PM SJUD 1/31/2022 1:30:00 PM |
HB 155 |
| HB 155 Additional Document - Alaska Court System Response to HJUD Committee Questions on April 5, 2021 4.7.2021.pdf |
HJUD 4/7/2021 1:00:00 PM SJUD 1/31/2022 1:30:00 PM |
HB 155 |
| SB119 TESTIMONY FOR SENATE ED COMM.pdf |
SEDC 4/28/2021 9:00:00 AM SJUD 1/31/2022 1:30:00 PM |
SB 119 |
| SJR 19 Amendment A.1.pdf |
SJUD 1/31/2022 1:30:00 PM |
SJR 19 |
| SB 119 Sectional 1.25.22.pdf |
SJUD 1/31/2022 1:30:00 PM |
SB 119 |