Legislature(2007 - 2008)BELTZ 211
01/25/2008 03:00 PM Senate LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| SB101 | |
| SB147 | |
| SB107 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 101 | TELECONFERENCED | |
| = | SB 147 | ||
| = | SB 107 | ||
SB 101-GUARDIANSHIP AND CONSERVATORS
CHAIR JOHNNY ELLIS announced SB 101 to be up for consideration.
d
[CSSB 101(2 L&C) version V was before the committee.]
DANA OWEN, Staff to Senator Johnny Ellis, sponsor of SB 101,
said SB 101 has a major change. The Uniform Adult Guardianship
and Protective Proceedings Jurisdiction Act, which is a model
for a lot of states, was added. The idea is to set a uniform
standard for dealing with cases that reach across state lines.
In addition, he said Josh Fink, Director, Office of Public
Advocacy, has asked for a few small changes. On page 9, sections
17 and 18 have been added; section 17 gives the court authority
to make a finding of incapacity in absence of expert testimony
in cases where the respondent stipulates to the incapacity.
Section 18 mandates written findings in cases where the court
deviates from the priority list of potential guardians. Section
20 has the same mandate for written findings in the case of
conservators. Section 21 provides that records of cases
involving public guardians are confidential except where they
are relevant to an investigation of a public guardian who has
provided guardianship or conservator services. There are various
conforming amendments throughout the bill.
3:10:41 PM
DEBORAH BEHR, Chief Assistant Attorney General, Legislation and
Regulations Section, Department of Law, Juneau, said she also is
a uniform law commissioner for the state that brought the
Uniform Adult Guardianship and Protective Proceedings
Jurisdiction Act forward. It is good public policy for Alaska
families. She said SB 101 is supported by the National College
of Probate Judges and the National Guardianship Foundation. The
Department of Health and Social Services supported it as well.
MS. BEHR said that Alaska family are often transient and have
family members in several parts of the US. So, for example, if
she had a mother in Fairbanks, a brother in Virginia and a
sister in California and mother visits sister in California and
has a major event like a stroke and becomes incapacitated, the
court has difficulty deciding which court should handle that
case. In the time you are arguing over which court should handle
it, it's expensive to families. This bill would set up a
priority system among the states as to who should handle these
cases so they can look at what is in the best interest of an
incapacitated family member. So in the example, the family could
go to the California court and say the sister is the best person
to take care of her even though she was with the mother only a
couple of months. The California court under this bill could
easily work with the Alaska court and come up with a plan. SB
147 would also make it easier to transfer guardianship back up
to Alaska. It's cheaper and less stress for families.
3:13:26 PM
JOSH FINK, Director, Office of Public Advocacy, said Mr. Owen
went through the changes and he would give the rationale behind
them. The issue in section 17 was that under current statute,
they are required to provide psychological examination of any
respondent where a petition is filed for a protective order.
This language allows the respondent in instances where he or she
doesn't object to an appointment to forego the need for a
psychological evaluation, which can be very expensive. Rural
parts of the state need to fly a psychologist out or fly the
petitioner and a guardian in.
He explained that under current law sections 18 and 20 for
guardianships and conservatorships have a priority as to who
should be appointed a public guardian or conservator. The order
starts with the person requested by the respondent, then the
spouse, then the adult child or parent, then a relative, family
friend, private guardian and then finally, as a last resort, the
Office of Public Advocacy. This change simply asks that the
court make written findings as to why someone was appointed.
Sometimes, he explained, family members exploit the protected
person or were part of the problem and yet after the appointment
they are at his door trying to micromanage the ward's affairs.
This gives his office a written record of why that person was
not appointed. Making the court explain what it is doing is just
good policy.
MR. FINK said that section 21 is new and exempts public guardian
records from the Public Records Act, because they contain very
personal information like mental health evaluations and personal
family affairs. It's a grey area of the law right now, he
explained, and he wasn't sure if someone asked to see one of
those files that they could be shared or not.
He said section 23 on page 11 clarifies the statute to allow OPA
to go forward on a practice they have been doing since 1986. He
explained that he collects a monthly fee established in
regulation of $40 a month; and for some clients that is a
hardship. OPA can defer the fees until the client comes into
money. If a ward is transferred to a private guardian or family
member or dies, the OPA typically collects the fees after burial
expenses are paid and then have released the remaining funds to
the family. The office already does this, but this language
makes it clear.
3:18:04 PM
SENATOR BUNDE asked how a person can either agree or disagree to
a process that judges them incompetent.
MR. FINK replied that there are two standards: guardianship is a
higher level of incapacity than for conservatorship, which is
just an inability to manage finances. The current practice is a
court visitor goes out and collects whatever medical records are
available and often they are able to get the doctor to be the
expert. Often, particularly with conservatorships, the
respondent will have no objection to the appointment. In some
rural areas the judge has said a person is agreeing to the
protective order, but under the law he has to have him
evaluated. So, he has to be flown in with a caretaker or a
psychologist has to be flown out. It is exceedingly expensive.
If the ward was incapacitated such that consent was an issue, he
couldn't stipulate. There would have to be a psychological
evaluation. Competency means you have to understand the
proceedings you are involved with and what you are doing, he
added.
3:20:03 PM
MARIE DARLIN, Coordinator, AARP Capital City Task Force, AARP,
said she had provided a letter of support to the committee. With
the increasing senior population there will be a bigger need for
this kind of service, she said. Incapacitated elders often have
problems with those kinds of cases. AARP fully supported the
idea behind the legislation.
3:21:25 PM
SENATOR DAVIS moved to adopt CSSB 101(2d L&C), version V. There
were no objections and it was so ordered.
3:22:02 PM
SENATOR BUNDE moved to report CSSB 101(2d L&C) from committee
with individual recommendations and attached fiscal note(s).
There being no objection, the motion carried.
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