Legislature(2011 - 2012)BELTZ 105 (TSBldg)
04/06/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB30 | |
| SB104 | |
| SB98 | |
| SB86 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 86 | TELECONFERENCED | |
| + | SB 104 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 30 | ||
| = | SB 98 | ||
SB 86-PROTECTION OF VULNERABLE ADULTS/MINORS
2:13:05 PM
CHAIR FRENCH announced the consideration of SB 86 relating to
the protection of vulnerable adults and minors. He noted that
this would be the third hearing. The proposed committee
substitute (CS) is designed to match the changes that have been
made to the companion House bill and incorporate the changes
this committee has made. He asked for a motion to adopt the
proposed CS.
SENATOR WIELECHOWSKI moved to adopt the work draft CS for SB 86,
labeled 27-GS1722\B, as the working document.
CHAIR FRENCH objected for discussion purposes.
2:14:29 PM
KELLY HENRIKSEN, Assistant Attorney General, Civil Division,
Department of Law (DOL), said she represents the Department of
Health and Social Services (DHSS).
CHAIR FRENCH pointed out the following people who were online to
answer questions: Scott Sterling, Beth Russo, and Rachel Levitt
from the Office of Public Advocacy (OPA); David Schade from the
Department of Public Safety (DPS); Douglas Moody from the Public
Defender Agency (PDA); Brenda Mahlatini from Adult Protective
Services; and Joanne Gibbens from the Division of Senior and
Disabilities Services (DSDS).
CINDY SMITH, staff to Senator French, explained that version B
incorporates the following changes that the House Judiciary
Committee adopted in the companion bill:
Page 1, line 13, and page 2, line 6: Inserted the words "a
vulnerable" and deleted the words "an elderly person or
disabled" as proposed in the original revisor's bill.
Page 4, line 21; AS 13.26.207(a): Inserted the phrase "and other
persons as ordered by the court" following the word "attorney"
Page 5, lines 4-8; AS 13.26.209(a): Inserted the language "A
petition filed on behalf of a protected person by another person
must be accompanied by proof of service of the petition on the
protected person or the person's attorney unless service would
cause an immediate threat of harm to the best interests of the
protected person and the petition includes a written explanation
of the harm." following the word "person."
Page 5, lines 14-16; AS 13.26.209(a): Replaced "The court shall
cause a copy of the protective order to be served on the
respondent." with "The court shall cause a copy of the
protective order, any related orders, and a scheduling order, if
any, to be served on the respondent and the protected person."
Page 6, lines 1-2; AS 13.26.209(d): Inserted the phrase "the
protected person and" following the phrase "the court shall
provide to"
Page 6, lines 17-18; AS 13.26.209(g): Replaced the language "A
third party shall comply with a protective order issued under
this section." with "A third party that has received actual or
legal notice of a protective order issued under this section
shall comply with the order."
Page 6, line 22; AS 13.26.209(g): Replaced the word "person"
with the word "party"
Page 6, lines 24-26; AS 13.26.209(g): Inserted the language "As
used in this section, "actual or legal notice" means delivery by
mail or facsimile at the most recently known place of residence
or business of the third party." following the word "order"
2:19:12 PM
Page 7, line 9: Replaced AS 13.26.325 with AS 13.26.324 to
address inadvertent duplicate numbering.
Page 7, line 12; AS 13.26.324(2): Replaced the phrase "theft and
related offenses" with the phrase "offenses against property"
Page 7, line 24; AS 18.65.530(a)(2): Replaced the word "and"
with the word "or"
Page 8, lines 10-21; AS 44.21.415(g): This is a new section with
conforming changes to definitions in earlier provisions.
Page 10, line 24; AS 47.24.010(e): Inserted the phrase "at the
earliest opportunity" following the word "shall"
CHAIR FRENCH said he would circle that provision for further
consideration.
2:21:04 PM
Page 13, lines 16-19; AS 47.24.015(h): The original subsection
(h) was redrafted.
MS. HENRIKSEN explained that this gives subpoena authority to
the DHSS as opposed to the previous provision that required
anybody who had documents for custody of a vulnerable adult to
make them available to the DHSS.
Page 13, lines 23; AS 47.24.015(j): Subsection (j) of the
original bill was deleted and the subsequent subsections were
re-lettered accordingly.
MS. HENRIKSEN explained that the original subsection (j) wasn't
needed after the original subsection (h) was redrafted.
Page 14, line 7; AS 47.24.015(m): Replaced the phrase "the
following:" and paragraphs (1)-(4) with the phrase "any person"
Page 14, line 12; AS 47.24.016(a): Inserted the word
"conservator," following the word "guardian,"
Page 14, lines 21-22, AS 47.24.016(a)(1)(B): Replaced the
language "divorce or dissolution" with the language "divorce,
[OR] dissolution, or legal separation"
Page 15, line 19; AS 47.24.017(a): Replaced the language
"guardian or" with "guardian, conservator, [OR]"
Page 16, lines 2-3; AS 47.24.019(c): Replaced the language "a
family member, caregiver, guardian, conservator, attorney-in-
fact, trustee, or surrogate decision maker" with the phrase "any
person"
Page 16, lines 4-6; AS 47.24.019(c): Replaced the language "a
family member, caregiver, guardian, conservator, attorney-in-
fact, trustee, or surrogate decision maker" with the word
"person"
Page 16, lines 21 and 24; AS 47.24.050(b): Inserted the word
"conservator," following the word "guardian,"
Page 17, line 15; AS 47.24.900(2)(A): Inserted the word
"knowing," following the word "intentional,"
Page 18, line 1; AS 47.24.900(4): Replaced the word "means" with
the word "includes" to make it clear that the list is not
intended to be exhaustive.
Page 18, line 11; AS 47.24.900(7)(B): Inserted the word "fraud,"
following the word "deception,"
Page 18, lines 12-13; AS 47.24.900(7)(B): Inserted the language
"in this paragraph, "fraud" has the meaning given in AS
13.26.324(1) and (2);" following the word "duty;"
Page 18, line 15; AS 47.24.900(9): Inserted the word "knowing,"
following the word "intentional,"
Page 18, line 21; AS 47.24.900(9): Replaced the word "means"
with the word "includes" to make it clear that the list is not
intended to be exhaustive.
Page 18 line 22, through page 19, line 6; AS 47.24.900(11):
Legislative Legal Services reformatted this section, but made no
substantive change.
Page 18, line 30; AS 47.24.900(11)(D): Replaced an earlier sub-
subparagraph "(iv) freezing an account at a financial
institution;" with a new subparagraph "(D) staying financial
transactions;"
CHAIR FRENCH asked if DHSS agrees with the change.
MS. HENRIKSEN answered yes.
MS. SMITH continued.
Page 19, line 17; AS 47.24.900(15)(D): Inserted the phrase
", waste, or dissipation" following the word "loss"
Page 19, lines 30-31 and page 20, line 1; AS 47.24.900(18): The
language describing "fiduciary duty" in paragraph (18) was
redrafted.
2:25:47 PM
Page 20, lines 27-31; AS 47.24.900(21): Replaced the language
" "undue influence" means a person of trust or confidence uses
the person's role, relationship or authority to exploit" with
" "undue influence" means the use by a person who stands in a
position of trust or confidence of the person's role,
relationship, or authority to wrongfully exploit"
Page 20, line 29; AS 47.24.900(21): Replaced the word
"deceptively" with the word "wrongfully"
Page 21, lines 6-9; Direct Court Rule Amendment. Rule 12(h): The
new language in Rule 12(h) was redrafted to say, "In deciding
whether to grant the motion, the court shall consider the
victim's circumstances and the effect that delay would have on
the victim, particularly a victim of advanced age or extreme
youth. The court shall place its findings on the record."
CHAIR FRENCH asked if these are motions for continuances in any
matter.
MS. HENRICKSEN said yes.
MS. SMITH continued.
Page 21, lines 19-20; Direct Court Rule Amendment. Rule 45(a):
Deleted all new bolded language in Rule 45(a) and inserted the
language "The court shall consider the circumstances of the
victim, particularly a victim of advanced age or extreme youth,
in setting the trial date." following the word "cases."
Page 21 and 22, Secs. 48 and 49: These are conforming amendments
to adjust for earlier deletions and amendments.
Page 22, line 29; Sec. 53: The effective date language "This Act
takes effect immediately under AS 01.10.070(c)." was replaced
with "Except as provided in Sec. 52 of this Act, this Act takes
effect July 1, 2011."
2:28:17 PM
MS. SMITH continued to explain that version B incorporates the
following changes that the Senate Judiciary Committee made:
Page 4 lines 6-8: added a new subsection (c) to AS 13.26.185 to
clarify that notice provisions do not apply to the ex parte
orders created under this bill
Page 6, lines 7-14: added language to allow the person to be
protected or the respondent to seek modification or termination
of any ex-parte protective order on three days' notice. This was
brought to the committee by the Disability Law Center.
Page 4, lines 21-23: added language that requires that if a
respondent is unrepresented, the court shall appoint an attorney
to represent the person at the hearing. This was brought to the
committee by the Disability Law Center.
Page 22, line 28: added a delayed effective date for the new
reporting provisions in AS 47.24.010(a) and (e) to go into
effect September 1, 2011. This is to provide time to train
people who will be required to report.
Page 6, Sec. 13.26.209(g): Deleted the reference to "registering
with the Department of Public Safety" as a method of serving
notice as that database is not publicly available. This was
added by the House Judiciary Committee and the Department of
Health and Social Services requested it be removed in the House
Finance Committee.
CHAIR FRENCH asked if this was the one change that the House
Judiciary Committee made that this committee declined to accept.
MS. SMITH said that's correct.
CHAIR FRENCH opened public testimony.
2:30:41 PM
MARIE DARLIN, AARP-Alaska, said the AARP letter of support for
SB 86 highlights that the aging of the Alaska population
presents unique challenges for the criminal justice system. The
bill addresses detecting and preventing elder abuse and
increasing awareness of the issue. SB 86 tries to create
vehicles for new emergency procedures to allow courts to
immediately take action when someone is being financially
abused. The bill also addresses other issues of elder abuse and
provides procedures to help protect elders from these
situations.
CHAIR FRENCH removed his objection to the adoption of the CS and
noted there was an amendment from the Department of Law.
2:32:56 PM
SENATOR WIELECHOWSKI moved to adopt proposed Amendment 1,
labeled 27G-1.
CHAIR FRENCH objected for discussion purposes and asked Ms.
Henriksen for an explanation.
27G-1
AMENDMENT 1
Page 5, line 1:
Delete "Ex parte protective"
Insert "Protective"
Page 5, line 26, following "issued," through
line 27:
Delete all material.
Insert "unless dissolved earlier by the
court or on the"
Page 6, line 6:
Delete "ex parte"
MS. HENRIKSEN explained that the first and third change
effectively removes the reference to "ex parte" because what's
included in the provision beyond ex parte is the six month
extension and that's not an ex parte procedure.
CHAIR FRENCH asked for an explanation of the change on page 5,
lines 26-27.
MS. HENRIKSEN said this removes all the particular circumstances
when an order might end and instead say it would occur whenever
the court directs that the ex parte order needs to expire. This
is broader to cover some circumstance that might come up that
isn't included in the prior list.
2:36:07 PM
CHAIR FRENCH maintained his objection to Amendment 1 and called
an at-ease from 2:36 p.m. to 2:43 p.m.
2:43:02 PM
CHAIR FRENCH reconvened the meeting and stated that there's been
agreement on a conceptual amendment to Amendment 1.
CHAIR FRENCH moved a conceptual amendment to Amendment 1.
Subsection (c) on page 5 would read as follows:
(c) An ex parte protective order expires 20 days after
it is issued, at the end of a six-month extension if
granted by the court under (d) of this section, on the
appointment of a temporary or permanent conservator or
dismissal of the petition for the ex parte order
unless dissolved earlier by the court.
CHAIR FRENCH announced that without objection the conceptual
amendment to Amendment 1 is adopted. He removed his objection to
the adoption of Amendment 1 and announced that without objection
Amendment 1, as amended, is adopted.
CHAIR FRENCH announced he would hold SB 86 in committee.
2:44:36 PM
MS. HENRIKSEN questioned the explanation for the delayed
effective date change in Section 52 on page 22. She pointed out
that Sections 16-28 covers a great deal more than Sec.
47.24.010(a) and (e).
CHAIR FRENCH agreed.
MS. HENRIKSEN said she isn't sure if it's a coincidence but Ms.
Gibbons pointed out that Sections 16-28 include all instances of
adding the phrase "undue influence."
CHAIR FRENCH said his understanding is that it came from the
drafter but that will be clarified before the bill is moved from
committee.
SB 86 was held in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSSB 86 (JUD) Protection of Vulnerable Adults.pdf |
SJUD 4/6/2011 1:30:00 PM |
SB 86 |
| SB86 State Statutes on Undue Influence.pdf |
SJUD 4/6/2011 1:30:00 PM |
SB 86 |
| SB 86 Explanation of SJUD changes.doc |
SJUD 4/6/2011 1:30:00 PM |
SB 86 |