Legislature(2015 - 2016)BELTZ 105 (TSBldg)
03/02/2016 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB174 | |
| SB180 | |
| SB174 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 112 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 174 | TELECONFERENCED | |
| += | SB 180 | TELECONFERENCED | |
SB 180-PARENT-GUARDIAN/CHILD: TEMP. POWER OF ATTY
2:07:47 PM
VICE CHAIR COGHILL announced the consideration of SB 180.
SENATOR CATHY GIESSEL, Alaska State Legislature, sponsor of SB
180, noted this was the second hearing and there was a new CS,
version H.
2:08:53 PM
SENATOR MICCICHE moved to adopt the CS for SB 180, labeled 29-
LS1431\H, as the working document.
SENATOR WIELECHOWSKI objected for discussion.
2:09:23 PM
KARI NORE, Staff, Senator Cathy Giessel, Alaska State
Legislature, explained changes in the new CS for SB 180, version
H. The first change occurs on page 5 of the original bill,
version W; subsection (j), beginning on line 14 on page 5, was
removed due to concerns by the Office of Children's Services
(OCS). She noted OCS was afraid (j) would allow individuals to
circumvent OCS by diverting to the power of attorney (POA)
process. OCS suggested the sponsor put forward a statutory
exemption under AS 47.32 for organizations similar to Beacon
Hill and Safe Families for Children.
She reported that the second change was on page 7 of version H,
where two additional sections were added. Section 5 references
the exemption and Section 6 is the actual exemption.
MS. NORE reviewed questions previously raised by committee
members and Legislative Legal Services' responses. In response
to Senator McGuire's concern, Legislative Legal attorneys
determined that the bill does not supersede judicial bypass.
Senator Costello had asked whether both parents must sign the
POA and the answer is that the delegation of powers is the first
step in a custody case. The goal of the bill is to make the
process quick and easy and to not involve an attorney, so it is
not necessary to have both parents sign. She stressed that a
delegation of powers over a minor does not affect the rights of
a non-signing parent and it can be revoked at any time.
2:12:29 PM
VICE CHAIR COGHILL offered his understanding that if there are
disagreements between parents, there are other legal avenues
available for appeal.
MS. NORE agreed. She explained that the delegation of powers is
designed to be an easy way to help families get back on their
feet without risk of losing custody of their children.
MS. NORE addressed the question raised by Senator Wielechowski
concerning PFD's and property belonging to a minor child. She
said the sponsor proposes a change to remove the words "of
property" on page 2, line 3, and on page 3, line 13, to prevent
the host family or attorney-in-fact from having purview over the
property of the minor child; it would remain with the biological
parent.
SENATOR WIELECHOWSKI asked if the sponsor will propose that
change.
MS. NORE said yes. She said there was also a question raised
about the ability to recoup medical and dental costs, or costs
related to the care of a child. The sponsor decided not to
address this issue because when a family enters into an
agreement using the power of attorney, such as with Beacon Hill,
there is a built-in agreement that the family will not seek
recovery of medical costs. It is supposed to be minimal cost to
the host parent or attorney-in-fact.
2:14:41 PM
SENATOR WIELECHOWSKI summarized that the person with the POA
would not be responsible for expensive medical care, should the
child need it.
MS. NORE said, "Correct."
2:15:24 PM
MS. NORE addressed a question posed by Senator Wielechowski
regarding emancipation. She explained that the bill does not
address emancipated minors and it would be up to the
organizations to set standards related to placement based on
age.
SENATOR COSTELLO asked what happens if one parent disagrees with
the POA being provided to a third party.
MS. NORE said if one parent signs and one does not, the one who
does not sign does not lose any rights, and either parent can
revoke the POA at any time.
SENATOR COSTELLO said she was trying to think of a family
situation where one parent thinks the POA will result in harm to
the child.
2:17:24 PM
SENATOR GIESSEL suggested that the president of Beacon Hill
address the question. She maintained that families seeking
assistance voluntarily call Beacon Hill because they want to
retain custody of their children and they are working hard to
resolve their issues. She suggested that there is much more
cooperation between parents than Senator Costello envisions.
SENATOR WIELECHOWSKI said he had the same question.
2:18:46 PM
CHARITY CARMODY, President, Beacon Hill, answered questions
related to SB 180. She provided an example similar to the
situation Senator Costello posed where the mother used a POA to
put the kids in Safe Families for Children and the dad appeared
after a month and agreed to sign the same POA, but if he
wouldn't have agreed, he could have revoked the POA.
SENATOR COSTELLO asked if the legislation were to pass and
Beacon Hill were not in place, what would happen when a POA is
signed without the other parent's knowledge.
MS. CARMODY offered her belief that it was the same concept for
other POA issues, such as enrolling a child in school, and the
parent would have the right to cancel the POA.
2:21:39 PM
SENATOR MICCICHE asked if existing law has the POA cancelling
provision in it.
MS. CARMODY said it does.
SENATOR WIELECHOWSKI asked why the bill is needed.
MS. NORE explained that originally the existing POA statute was
included in the bill. The sponsor made the bill more robust at
the request of OCS due to the sensitivity of the cases.
Currently, entities such as Beacon Hill operate under a variance
under OCS, and the intent is to allow those entities to continue
to provide services without running the risk that the variance
could be withdrawn.
2:23:36 PM
SENATOR WIELECHOWSKI said he supports the concept of the bill
but believes the worst case scenarios should be considered
during the discussion. He summarized that the statute gives a
single parent the right to create a POA and does not require
both parents to sign it. He voiced concern when there is a
broken family and parents disagree. He asked if there should be
a requirement that both parents agree to the POA.
SENATOR GIESSEL explained that Chad Hutchinson, the majority's
attorney, provided a summary of delegation of powers by a
parent, which consists of a scale. The lowest end of the scale
is delegation of powers by a parent and requires no court
filing, does not affect the rights of a non-signing parent, and
can be revoked at any time. The next level up is guardianship
which requires court action. The bill provides for a nimble,
easy, safe process.
2:26:12 PM
SENATOR WIELECHOWSKI referred to language in Section 2 where it
says a parent or guardian of a minor child may delegate to
another person, whereas in subsection (b), line 9, it says "a
parent or guardian who delegates a power." He voiced concern
about a parent that is not informed, finds out about the POA,
and then is relying on the other person to revoke the POA.
MS. NORE referred to number 3 on the legal memo and pointed out
that the bill uses the singular term and the plural term.
SENATOR WIELECHOWSKI countered that it says one or both parents
can execute a POA for their child. The legal memo states that
the sponsor may want to address whether or not both parents must
sign the POA and what would happen if one parent disagreed. He
suggested specifying that both parents need to agree.
VICE CHAIR COGHILL asked for Ms. Carmody to comment.
MS. CARMODY offered her understanding that this language already
exists in the current POA statute. She noted that some parents
are missing or not involved and it would pose problems to have
to track down both parents or prove who they are.
2:29:39 PM
SENATOR MICCICHE referred to existing law AS 13.26.020 and Sec.
01.10.050(b), where it explains that the plural and singular
references to parent/parents includes both. Existing law allows
permission for POA by one or both parents.
VICE CHAIR COGHILL said he could see that when there is a
divided family, the POA may need to be resolved in court. He
asked if one parent has veto power in this bill.
MS. NORE said yes.
2:30:25 PM
SENATOR COSTELLO said she thought it was an implied power on
page 2, line 21, "unless a parent or guardian revokes a power of
attorney." She suggested adding "where reasonable" to avoid the
situation just described and to add protection.
MS. NORE explained that the issue with adding qualifications for
contacting a parent who is out of the picture is that the point
of the delegation of powers is to provide quick action when
there are emergency circumstances in the family. She gave an
example of a parent who relapses and is at risk of losing her
children. She concluded that qualifications could defeat the
whole purpose of the bill.
2:32:44 PM
SENATOR WIELECHOWSKI referred to page 2, lines 9 - 12. He said
he believes the lines mean the parent or guardian who delegated
the POA can revoke it. He suggested adding "either parent can
revoke the POA."
2:33:42 PM
MS. CARMODY said she likes the idea that both parents would have
the right to revoke the POA.
VICE CHAIR COGHILL asked whether Senator Wielechowski is
suggesting to make it explicit that it is either parent who can
revoke the POA.
SENATOR WIELECHOWSKI said he was open to the discussion.
VICE CHAIR COGHILL offered his belief a parent has that right.
2:34:36 PM
SENATOR MICCICHE opined that is already the case in existing
law, but he was not opposed to clarification.
VICE CHAIR COGHILL said it is important to fine-tune the law at
this level.
SENATOR GIESSEL said she understands what Senator Wielechowski
is seeing in line 9, and she suggested, "Either a parent or
guardian under (a) of this section may revoke the power of
attorney at any time." It removes "who delegates a power" which
is where there is confusion.
SENATOR WIELECHOWSKI agreed that seems to solve the problem.
2:36:14 PM
VICE CHAIR COGHILL summarized that the idea is to strike "who
delegates a power."
SENATOR WIELECHOWSKI suggested "who delegates a power under (a)
of this section."
SENATOR WIELECHOWSKI removed his objection to adopting version
H.
VICE CHAIR COGHILL found no further objection and version H was
adopted.
2:37:00 PM
MS. NORE pointed out there was discussion about potentially
removing the word "property" on page 2, line 3.
2:37:30 PM
SENATOR MICCICHE moved Conceptual Amendment 1: in Section 2, on
page 2, line 3, remove the word "property" regarding the
delegation of powers over a minor child. It should now say
"regarding the care or custody of the minor child. . . "
2:38:03 PM
MS. NORE pointed out the additional need to remove "property" on
page 3, line 13.
SENATOR MICCICHE restated Conceptual Amendment 1 to remove the
word "property" on page 2, line 3, and on page 3, line 13.
VICE CHAIR COGHILL found no objection and Conceptual Amendment 1
was adopted.
2:39:13 PM
VICE CHAIR COGHILL referred to a potential amendment on page 2,
line 9, removing the words "who delegates a power under (a) of
this section."
SENATOR MICCICHE suggested removing "who delegates a power under
(a) of this section" from the first part of the sentence and
adding "under (a) of this section" after "power of attorney."
Then it would read "a parent or attorney may revoke the power of
attorney under (a) of this section at any time."
SENATOR COGHILL said he did not think it made any difference
because it falls under the "delegation of powers over minor
child" section. It was a stated right to revoke the POA.
2:40:37 PM
SENATOR MICCICHE said it is pointing to a specific POA.
Legislative Legal clarified that any parent or guardian can
revoke a POA.
SENATOR MICCICHE moved to adopt Conceptual Amendment 2, on page
2, line 9, where it says "a parent or guardian may revoke the
power of attorney under (a) of this section at any time" the
words "who delegates a power under (a) of this section" would be
removed.
VICE CHAIR COGHILL found no objection and Conceptual Amendment 2
was adopted.
2:42:24 PM
SENATOR COSTELLO noted there is another bill going through the
legislative process that removes any reference to "attorney-in-
fact" which is commonly used for POA.
SENATOR GIESSEL thanked Chair Costello for that information. She
said page 5, subsection (j)(2) has a definition of attorney-in-
fact related to this particular bill. She assumed revisers would
update it.
VICE CHAIR COGHILL commented that it was a good catch.
2:43:57 PM
SENATOR MICCICHE moved to report the CS for SB 180, version H as
amended, from committee with individual recommendations and
attached fiscal note.
VICE CHAIR COGHILL announced that without objection, CSSB
180(JUD) is reported from the Senate Judiciary Standing
Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 174 FiscalNote.pdf |
SJUD 3/2/2016 1:30:00 PM |
SB 174 |
| SB 180 Legal Memo 2-26-16 judiciary questions.pdf |
SJUD 3/2/2016 1:30:00 PM |
SB 180 |
| SB 180 CS Draft version H.pdf |
SJUD 3/2/2016 1:30:00 PM |
SB 180 |
| SB 180 Back Up Safe Families One-Pager.pdf |
SJUD 3/2/2016 1:30:00 PM |
SB 180 |
| SB 174 Support Emails.pdf |
SJUD 3/2/2016 1:30:00 PM |
SB 174 |
| SB 174 Opposition Emails.pdf |
SJUD 3/2/2016 1:30:00 PM |
SB 174 |
| SB 174 Opposition Andree.msg |
SJUD 3/2/2016 1:30:00 PM |
SB 174 |