Legislature(2003 - 2004)
04/01/2004 03:22 PM House HES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HB 427-PROTECTION OF PERSONS AND PROPERTY
Number 1998
CHAIR WILSON announced that the next order of business would be
HOUSE BILL NO. 427, "An Act relating to guardianships and
conservatorships, to the public guardian and the office of
public advocacy, to private professional guardians and private
professional conservators, to court visitors, court-appointed
attorneys, guardians ad litem, and fiduciaries, and to the
protection of the person or property of certain individuals,
including minors; amending Rules 16(f) and 17(e), Alaska Rules
of Probate Procedure; and providing for an effective date."
Number 1960
JIM SHINE, Staff to Representative Tom Anderson, Alaska State
Legislature, presented the bill on behalf of Representative
Anderson, sponsor of HB 427. He provided the following sponsor
statement:
HB 427 will go a long way towards preventing
exploitation and mistreatment of vulnerable and
incapacitated adults receiving the services of a
private guardian or conservator. It was drafted with
input from the Alaska State Association for
Guardianship and Advocacy, also known as ASAGA, the
Office of Public Advocacy, Adult Protective Services,
the Long-Term Care Ombudsman's office, the Disability
Law Center, and the Senior Advocacy Coalition.
In Alaska, professional guardians (both private and
public) and family guardians provide services to
approximately 2,500 disabled, vulnerable adults.
Under current law, private guardians and conservators
- individuals with the responsibility to make housing,
legal and medical decisions for the disabled, infirm,
mentally ill, and seniors - are completely unregulated
by the State. Many other states regulate their
private guardians appropriately so. Vulnerable and
incapacitated adults are easy prey for those wishing
to exploit their resources.
This legislation would grant the State regulatory
authority over private guardians and conservators and
establish minimum qualifications and standards. The
State oversight and standards for such a sensitive and
critical job will help ensure that vulnerable and
incapacitated adults receive the care they deserve.
HB 427 would ensure those individuals or organizations
wishing to serve as private guardians or conservators
meet certain criteria, and register with the State.
Specifically, this legislation requires private
guardians to be certified by the National Guardianship
Foundation and have at least 2 years of professional
experience working with clients, or a degree in human
services, social work, psychology, sociology,
gerontology, special education, or a closely related
field. HB 427 will also require guardians to have
experience in financial management or a degree in
accounting. Critically, this legislation prohibits
private guardians from registering with the State and
practicing until a State and national criminal
background check is performed.
Finally, HB 427 allows the Division of Occupational
Licensing to revoke a private guardian's license if he
or she has been found to have abandoned, exploited,
abused, or neglected his or her ward, or has become
unfit due to professional incompetence. In short,
through regulatory oversight and the establishment of
professional and academic standards, this legislation
will help ensure disabled adults are not exploited by
those entrusted to manage their affairs.
Number 1882
REPRESENTATIVE GATTO moved to adopt CSHB 427, 23-LS1627\D,
Bannister, 4/1/04, before the committee as the working document.
There being no objection, CSHB 427, Version D, was before the
House Health, Education and Social Services Standing Committee.
MR. SHINE responded that he will defer to Betty Wells who has
been working with the drafter on the bill. He commented that it
is his understanding that Version D has taken away most of the
registration requirements and placed the responsibility with the
Division of Occupational Licensing.
Number 1854
REPRESENTATIVE SEATON asked if the committee could be advised of
the differences between Version A and Version D.
Number 1806
BETTY WELLS, President, Alaska State Association for
Guardianship Advocacy (ASAGA); testified in support of HB 427
and answered questions from the members. She provided the
following statement:
In terms of what you have in front of you, the first
ten pages are the sections [Sec. 13.26.]500 through
[Section 13.26.]590 from the earlier draft and took
the statutory regulations pretty much verbatim out of
500 through 590 and put that into Occupational
Licensing. So the first ten pages of the committee
substitute were in the old draft, they were just in
the back. In addition to doing that it also added
some new language with requirements for licensure in
terms of age of the person, education, experience, and
provides for a temporary license and those are in
08.26.030 and 040, on page two of the committee
substitute. That is the major change from the draft
to the committee substitute.
CHAIR WILSON commented that this is an effort to pull all of
[licensing requirements] together.
MS. WELLS replied that the requirements were in the
guardianships statutes in AS 13.26. They were moved out of the
registration for private professional guardians and pulled
together and moved to the statutes for occupational licensing
which is in AS 08.01. After conferring with the Division of
Occupational Licensing it was decided that there was greater
comfort in monitoring this program by calling it a license, she
said. It has gone from a registration to a license under the
Division of Occupational Licensing, she added.
MS. WELLS told the members that the other language in the bill
is clarifying current statutory language and practice. She
reiterated that the vital changes are in the first ten pages of
the committee substitute which regulates private guardians. Ms.
Wells explained that currently Alaska has no regulations in
place. A couple of years ago there was an incident with a
private agency and it eventually went bankrupt. There is still
fallout from that, and this event made ASAGA realize that it
could no longer be thought that Alaskans are protected, she
said.
MS. WELLS said that Alaska is not alone in the effort to protect
vulnerable adults. She shared that there have been recent news
articles in the Detroit Free Press and out of Queens, New York
expressing the need for wide spread reform.
Number 1712
MS. WELLS reiterated Mr. Shine's comments that this was a
collaborative effort which took place over the last six years.
Number 1682
REPRESENTATIVE WOLF asked Ms. Wells if she is a guardian.
MS. WELLS replied no. She told the members that she is a court
visitor in the Third Judicial District in Anchorage. Ms. Wells
explained that she has been working with adult guardian
investigations for about 15 years.
REPRESENTATIVE WOLF asked Ms. Wells if she has a family member
or a personal friend that is a guardian.
MS. WELLS responded that she does not. She emphasized that she
works with guardians. Ms. Wells explained that she is a
registered guardian with the National Guardianship Foundation
through her work and has served as a guardian on a contract
basis through the Office of Public Advocacy at different times.
She stated she primarily works as a court investigator.
Number 1622
REPRESENTATIVE GATTO commented that the bill is 28 pages long,
and the sectional analysis has 33 parts. He asked if Ms. Wells
would provide a summarizing statement.
MS. WELLS reiterated that the first ten pages of the committee
substitute is new legislation which is being proposed to
regulate private agencies. Currently there is no legislation in
place. For example, a person could have a felony conviction for
embezzlement and if a judge were conned into appointing that
person he/she could serve as a guardian. She explained that the
new legislation takes the responsibility away from the judges
and places the licensing requirement with the Division of
Occupational Licensing. The rest of the bill is basically
clarification and clean up language of the conservatorship and
guardianship statutes. She stated that ASAGA believes it is
essential to put trust back in the system. Ms. Wells told the
members that Alaska is far ahead of many states with respect to
the rights that are guaranteed to vulnerable adults.
Number 1491
REPRESENTATIVE GATTO asked what was the composition of the group
who developed what constituted good regulations.
Number 1479
MS. WELLS responded that there was a study done by the McDowell
Research Group in 1997 which was funded through the Division of
Senior Services in Anchorage. The McDowell Study made six major
recommendations. The groups that has been working on this since
1997 are the Disability Law Center, private attorneys, public
guardians, private guardianship agencies, court officials,
family guardians, Adult Protective Services, and the Long-Term
Care Ombudsman.
REPRESENTATIVE CISSNA asked if the group looked at what other
states have done.
MS. WELLS replied that currently Washington and Arizona require
that a private professional guardian be licensed or registered
with the state and be certified by the National Guardianship
Foundation. As of January 1, 2003 Florida requires all
professional guardians be licensed and seek ongoing education.
California is now working on state specific certification that
will work with national certification. She said she believes
these states are ahead of Alaska. Ms. Wells explained that
there are states out there that do not offer respondents rights
of having an attorney or a court hearing. She summarized that
Alaska has been ahead in some of the recommendations that have
been made nationally, but HB 427 is an important bill.
Number 1308
JOSH FINK, Director, Office of Public Advocacy (OPA), testified
in support of HB 427 and answered questions from the members.
He told the members that he believes this bill is critical
because there is a need to regulate the professional industry
that has such immense power over vulnerable and incapacitated
adults. The state regulates hairdressers, but it does not
regulate people who make decisions about others medical care,
housing, or legal decisions. He reminded the members of an
incident that happened many years ago where a private guardian
went bankrupt. He commented that the office is still dealing
with the consequences of that event.
MR. FINK said he believes it is important to ensure the
integrity of this industry with the public and the courts. He
explained the OPA is currently the guardian of last resort.
When looking for a guardian the family is considered first and
then private organizations are suppose to be considered before
going to OPA. However, increasingly the courts do not have any
level of confidence in the private guardians out there so OPA is
being appointed more and more. Mr. Fink said he would like to
encourage the development of more private professional guardians
and conservators. It would be better for private professionals
to cover that void than government agencies, he added. He said
he does not believe that there will be an industry developed
with the level of confidence needed in the private sector until
there are state regulations in place.
Number 1188
REPRESENTATIVE WOLF asked Mr. Fink if he, any member of his
family, or a personal friend are guardians.
MR. FINK replied that there a number of public guardians in the
agency. He commented that Jim Parker, Supervisor, Public
Guardians Section, of OPA, and Steve Young, lead public
guardian, are sitting in on this meeting. Mr. Fink added that
he is also acquainted with "B" Jarvi in Fairbanks who is a
private guardian.
REPRESENTATIVE WOLF asked if these individuals have gone through
the process and have answered the questions necessary to be a
guardian for a vulnerable adult.
MR. FINK commented that Sharon Wells was instrumental in
crafting the legislation. He said OPA's public guardians,
including Steve Young and Jim Parker worked on the bill also.
The Private Guardian Services Corporation (PGSC) where "B" Jarvi
is associated has been a member of ASAGA, but recently, he said
it withdrew from the group.
Number 1087
REPRESENTATIVE SEATON referred to page 16, lines 7 through 11
and read the following new language:
When appointing a relative or a friend of the
incapacitated person as the guardian of an
incapacitated person, the court shall require that the
proposed guardian complete one hour of manadatory
education on the basics of a guardianship before the
appointment or within 30 days after the appointment.
REPRESENTATIVE SEATON asked if the one-hour course exists now or
is a requirement that will be formulated after the passage of
this legislation.
Number 1036
MR. FINK responded that the OPA currently provides training to
families on how to provide guardianship services. That training
is made available to communities and there are a number of
people who offer classes. He added that OPA also has books,
videos, and written material which has been put in public
libraries. He added that currently OPA has distributed material
to the courthouse as well. In summary this is not a class that
needs to be created, the material is already available, Mr. Fink
said.
Number 1011
REPRESENTATIVE KAPSNER asked if any faith-based groups are doing
this kind of work.
MR. FINK replied not to his knowledge.
REPRESENTATIVE KAPSNER asked if guardian ad litems for adults
with disabilities is pretty much the same as guardian ad litems
for children in need of aid cases (CINA).
MR. FINK responded that the two are different. The guardian ad
litems in a child's case represents the best interest of the
child. When the problems are resolved, the guardian ad litem is
no longer involved. When there is an adult with a public or
private guardian typically most disabled adults have life-long
disabilities and the guardian would be a long-term guardian and
would be looking out for the best interest of the client.
REPRESENTATIVE KAPSNER commented that in CINA cases the guardian
ad litems are appointed, and asked if it works the same way with
guardians.
MR. FINK replied there are two different processes. In CINA
cases typically the state will removed a child from the home,
and start the court process. However, with guardianship case a
petitioner could be a family member, a friend, or a co-worker.
It still requires going to court, but there are different laws
that apply, he said.
Number 0850
REPRESENTATIVE KAPSNER referred to Section 7 in the sectional
analysis where it says:
Section 7. Deletes an option for a guardian to
request that a visitor be appointed to prepare and
submit a report. Requires a court to appoint a
visitor every three years to file a report reviewing
the guardianship.
REPRESENTATIVE KAPSNER commented that she is unfamiliar with the
terminology and asked what the term "visitor" means in this
case.
Number 0850
MS. WELLS replied that the current language indicates that a
visitor would be appointed to do a report. The intent of the
statute is that a visitor would be appointed to do a report
reviewing guardianship every three years. The guardian has to
do a report every year, and then every three years a visitor has
to do a report for the courts. This is just clarifying
language, she commented.
REPRESENTATIVE KAPSNER reiterated that she does not know what
"visitor" means in this context.
MS. WELLS responded that in this bill a visitor is an
investigator. The visitor provides notice to the person and
talks to the petitioner, the person, the doctor, and relatives.
The visitor provides a report to the court prior to a guardian
being appointed. Then every three years the visitor provides a
review of the guardianship to the court. This language just
clarifies that a review is done every three years, not every
year, she said.
Number 0750
JIM PARKER, Attorney, Public Guardian Section, Office of Public
Advocacy, testified on HB 427. He told the members that the
Office of Public Advocacy is the agency of last resort. It
provides guardianship services to disabled adults who do not
have family or friends available to serve. When a private
organization went bankrupt a few years ago it left a lot of
people in bad shape, he said. It is important that it does not
happen again. He said he believes that HB 427 will not make it
too onerous or difficult for those who are willing to serve, Mr.
Parker commented. There needs to be a good balance that will
protect vulnerable Alaskans.
Number 0636
"B" JARVI, Professional Guardian, Professional Guardian Services
Corporation, testified on HB 427. She told the members that
private professional guardians are not notified that cases are
available from the court visitor, the court itself, or the OPA
contract attorney. Ms. Jarvi said she has been told that it is
the decision of the head court visitor to omit notifying
professional guardians of cases available. Ms. Jarvi told the
members that since she is not in court it is a bit hard for the
courts to determine whether the services provided are
trustworthy or not.
MS. JARVI said she has been told that the latest data reflects
that professional private guardians only have ten percent of the
cases, which means the OGA who regulates the private guardian
industry is also the main competitor. She told the members that
when she does hear of a case and goes into court she is
confronted by the OPA contract attorney who is paid by the hour
by the OPA, a court visitor who is paid by the OPA, and members
of the staff of the OPA fighting for the case. She told the
members there is a stacked deck against professional private
guardians.
MS. JARVI testified that she has no problem with certification
of professional or private guardians and believes it to be a
good idea for everyone. However, she said she believes that the
guardians in the state OPA should also meet the same criteria
and court visitors should also have standards imposed upon them
with respect to professional liability. She added that there
should also be background checks required of OPA staff, court
visitors, and contractors.
Number 0399
MS. JARVI explained that OPA is currently setting fees for her
business at $40 per hour, as opposed to what it actually costs
to provide this service. She explained that she cannot compete
at that rate and still cover the overhead costs. Ms. Jarvi
reiterated that she is glad to meet any standards and criteria
provided that there is a level playing field and the same
criteria applies to everyone else. She explained that there is
a lot of conflict between the private guardians and OPA because
it has the option of regulating the private guardians. Someone
has to regulate the industry, but by far the large number of
complaints are against OPA, not the private guardians, because
no one is regulating OPA, she pointed out. Ms. Jarvi commented
that she believes Alaska statute provides very good protection.
She reiterated the unfairness of the agency regulating and
reviewing its competition.
MS. JARVI stated that this bill is a self-serving bill to
increase staffing and the role of OPA. Under statute OPA is
required to look for alternate guardians and conservators. This
is not happening, Ms. Jarvi told the members.
MS. JARVI shared an experience where she had a respondent
nominate her as guardian, go to court, only to have the OPA
attorney steer the case to OPA. Even though he is suppose to
represent the respondent, he also is the guardian ad litem and
projects his wishes as if it were the respondents, she said.
TAPE 04-27, SIDE A
Number 0038
MS. JARVI emphasized the importance of having a level playing
field. She urged the members to ensure that the OPA does not
compete with the private sector. The system needs to be fixed,
she said.
Number 0107
CHAIR WILSON announced that HB 427 would be held in committee.
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