Legislature(2011 - 2012)BELTZ 105 (TSBldg)
03/18/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB86 | |
| SCR2 | |
| SB30 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 86 | TELECONFERENCED | |
| += | SB 30 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SCR 2 | ||
SB 86-PROTECTION OF VULNERABLE ADULTS/MINORS
1:34:36 PM
CHAIR FRENCH announced the consideration of SB 86 and stated
that this bill hearing would be a work session to reach a
compromise in order to prepare a committee substitute (CS).
1:35:08 PM
SENATOR WIELECHOWSKI joined the committee.
1:36:53 PM
CHAIR FRENCH said he'd like to start with the notice provisions.
In the underlying statute, Title 13, dealing with ex parte
orders, there are notice provisions that are in conflict with
the proposed bill. Ex parte orders normally occur without giving
notice to the other side. This is unusual because only one
person is in the court room. As it stands now it says, "On a
petition for appointment of a conservator or other protective
order, the person to be protected …" must be served personally
by certified mail or by any other method of notice of hearing.
That is in AS 13.26.185. The bill needs to clarify that there
aren't two sets of notice requirements.
The other concern is on page 4, line 22. Scott Sterling had the
same concern. Because it's a vulnerable adult, that person
probably wouldn't be the only other person in the court. The
bill requires notice to the respondent, and there should also be
some notice to the vulnerable adult as well, because you don't
know the level of vulnerability.
1:40:51 PM
SCOTT STERLING, Supervising Attorney, Elder Fraud and
Assistance, Office of Public Advocacy (OPA), Department of
Administration (DOA), said he agrees there should be consistency
between new language and the existing statute. He said we can
carve out an exception for the protective orders that are
authorized by the new section and he would be happy to work on
language to address that issue.
MR. STERLING added that on page 4, line 22, the concern is
ensuring that the vulnerable adult will receive notice, unless
it's certified to the court that it would increase the harm to
the vulnerable adult. This is to prevent an unscrupulous third
party from using this remedy, and also to ensure that the
vulnerable adult knows that relief is being sought on their
behalf. In most cases, the vulnerable adult probably will be the
petitioner, and that issue need not be addressed. This is for
the case when an incapacitated person is being victimized and a
third party tries to halt the harm; they can come in and say
they are speaking on the victim's behalf but the victim would
still receive notice.
CHAIR FRENCH said that makes sense. He posed a hypothetical with
a vulnerable parent, an evil brother, and a good-hearted sister.
MR. STERLING said the first question is if the vulnerable adult
has capacity. If they do, they could ask for relief. If the
vulnerable adult lacks capacity and is being victimized the good
hearted sister could go to court and speak on the person's
behalf for relief, and exempt notice to the vulnerable adult
because the perpetrator could intercept it. Unless there is a
specific reason, the vulnerable adult would receive notice. It
is better to freeze the situation so appropriate agencies can
make inquiries without further dissipation of assets.
1:46:12 PM
CHAIR FRENCH asked if the House had developed specific language.
MR. STERLING answered yes; it is now in the form of a CS in the
other body.
CHAIR FRENCH asked if he'd seen the letter from Mark Regan of
the Disability Law Center. He summarized it as follows: Mr.
Regan recommends an opportunity for the person and respondent to
be protected on three days' notice and adds a provision for
immediate reappointment of counsel.
MR. STERLING said he'd like to look at that letter but he sees
no reason why a person couldn't say they need modification. The
vulnerable adult is entitled to counsel and this ex parte
provision would fit better with the situation where counsel is
appointed. It would be different from the domestic violence
arena.
1:49:17 PM
CHAIR FRENCH said you could see where the situation could
devolve quickly, and there could be substantial assets at risk.
MR. STERLING answered we're often trying to give legal
protections long after the assets are gone.
CHAIR FRENCH pointed out the definitions for undue influence
from other states. He said it's in the packet with the memo from
Mr. Sterling.
1:51:21 PM
SENATOR PASKVAN asked how many people would take advantage of
this ex parte process.
MR. STERLING replied they don't have immediate relief mechanisms
in the law. The best they can do is file for an emergency
conservatorship. Probably half of the cases that come to his
office have entirely dissipated assets or largely so.
SENATOR PASKVAN said he's wondering if this will result in so
many cases statewide that it will unduly impact the court
system.
MR. STERLING answered it may rise to that level over time.
CHAIR FRENCH noted that Ms. Gibbens was on line.
1:54:29 PM
JOANNE GIBBENS, Deputy Director, Division of Senior and
Disabilities Services (DSDS), Department of Health and Social
Services (DHSS) stated that for FY10 DSDS received 541 calls
regarding financial exploitation. She added that she didn't have
data about how many of those calls resulted in verified cases.
SENATOR PASKVAN asked if that phone number was accessible
statewide.
MS. GIBBONS answered yes.
1:55:59 PM
DOUG WOOLIVER, Administrative Attorney, Alaska Court System,
stated that last year the court record shows there were 281
combined conservatorships and guardianships filed, and 61
conservatorships of an adult were filed. He added that they
would expect to see an increase in those over time both because
of the aging population and because this bill creates an
opportunity that doesn't currently exist.
CHAIR FRENCH noted that Alaska has the fastest growing senior
population in the nation.
1:57:18 PM
CHAIR FRENCH said point 2 of Mr. Sterling's memo suggests
replacing the current subsection (f) with other language. He
asked if he meant to delete the contents of lines 17-22.
MR. STERLING said yes. He added that this was corrected in the
CS before the House committee.
1:58:33 PM
SENATOR MCGUIRE reminded the committee that this isn't just
about seniors. Her brother for example, has traumatic brain
injury and issues of individual liberty come into play once the
adult reaches the age of majority. This is an important
provision when you consider seniors and the number of victims of
traumatic brain injury coming out of Iraq. Alaska is good about
recognizing individual liberties, she said.
2:00:18 PM
SENATOR PASKVAN referenced point 2 of Mr. Sterling's memo and
asked what it intends to speak to.
MR. STERLING said the discussion on the companion bill
articulated the same concern of ensuring that due process notice
accompanies the ex parte order process. The remedy was to mail,
fax, or deliver a copy of the order to the third party's bank,
for example. The idea of recording with the state recorder
wasn't viable because of existing provisions in Title 40. The
drafters suggested saying the order would be effective upon
registering with the Department of Public Safety (DPS). That
ties in with the similar registry provision for domestic
violence and stalking orders. This address the fact that most
financial institutions are national companies and they have the
ability to research the registry that's contemplated. On the
family abuse level, the idea is that if the protective order is
served on the alleged perpetrator at their residence or work
that would satisfy due process for receiving notice.
2:04:12 PM
SENATOR PASKVAN said you're referencing the perpetrator, not the
financial institution.
MR. STERLING said it's the third party provision but the order
would need to be served on that branch and the perpetrator so
they are held liable for obeying the order.
CHAIR FRENCH said you'll need to enlist the aid of third parties
from time to time in order to be effective.
MR. STERLING agreed: for example, a family member holds a
nominally valid power of attorney and a third party, such as a
bank, is obliged to honor that. We don't want to put that third
party in a position of dishonoring it without this notice. They
would then be on the alert that someone is abusing the power of
attorney. Do not honor that, under the protection of this order,
until the situation can be clarified.
2:08:00 PM
SENATOR PASKVAN said the banks would need to check the registry.
MR. STERLING replied they would if they didn't receive the
notice by fax or mail. With the property conveying statutes,
financial institutions do this checking regularly for UCC
filings.
2:09:28 PM
CHAIR FRENCH asked why he suggested a change in the definition
of "fiduciary duty."
MR. STERLING said this was addressed in the House bill. He cited
Paskvan v. Messich; it would be most consistent with existing
law.
CHAIR FRENCH asked if "third party" could be changed to "a
person."
MR. STERLING said would be fine.
2:12:02 PM
CHAIR FRENCH asked about the mandatory reporting on page 9, Sec.
16.47.24.010. There's a "shall" and the issue is if there's a
penalty for not making a report.
2:13:19 PM
KELLY HENRIKSEN, Assistant Attorney General, Civil Division,
Human Services Section, Department of Law (DOL), said they
didn't contemplate a penalty. It was intended to be an
incentive.
CHAIR FRENCH noted there is already a penalty in subsection (c).
MS. HENRIKSON said she found similar language in the OCS
mandatory reporting language, in AS 47.17.020. It says the peace
officer "shall immediately take action to protect the child and
shall at the earliest opportunity notify the nearest office of
the Department."
CHAIR FRENCH said the peace officer falls under subsection (a).
The issue is there's a "shall" and if you don't report a serious
crime resulting in injury, you are criminally liable.
MS. HENRIKSON said we wouldn't treat a police officer any
differently.
CHAIR FRENCH said it's not the police officer; it's the
reporting person on line 4 who might be at risk. Those are the
same mandatory reports.
2:16:31 PM
SENATOR PASKVAN said page 9, line 11-16, says "if the decision
under this subsection is to take immediate action it may not
bring an action unless there is gross negligence or intentional
misconduct." He asked if there is a reason for saying immediate
action and why wouldn't it include the decision not to take
immediate action.
MS. HENRIKSON said she reads it the same way. It applies to both
the VPSO and police officer.
SENATOR PASKVAN cited the sentence above and said it's odd.
MS. HENRIKSON agreed it should be made consistent.
2:19:07 PM
CHAIR FRENCH said his list of concerns had been addressed and
noted that DOL had no further questions.
2:19:49 PM
MARIE DARLIN, American Association of Retired Persons (AARP),
stated support for SB 86. She said as the population ages more
of these problems will come to the fore. She agreed with Senator
McGuire that this would apply to more than just seniors.
CHAIR FRENCH closed public testimony and held SB 86 in committee
awaiting a CS.
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