Legislature(2001 - 2002)
02/19/2002 03:40 PM Senate STA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 190-GUARDIANSHIPS; CONSERVATORSHIPS
CHAIRMAN THERRIAULT announced it was not his intent to move the
bill from committee that day. Bill sponsor, Senator Gary Wilken,
informed the Chair he would present language for a committee
substitute at a subsequent hearing.
YURI MORGAN, staff to Senator Gary Wilken, introduced the bill as
the result of a yearlong review of the guardianship system in
Alaska.
The 1998 Alaska Guardianship Study, conducted by the McDowell
Group of Juneau, found the Alaska guardianship system to be
complex and confusing.
In that same year, the 12 member Long Term Care Task Force
recommended the Department of Administration give serious
consideration to the recommendations given in the McDowell Group
study.
In June 1999, the Division of Senior Services formed a
stakeholder group to review the recommendations and reach a
consensus on the needed changes to the guardianship system.
Stakeholders included representatives from the Alaska Court
System, court visitors, the Office of Public Advocacy, the Alaska
Mental Health Trust Authority and other advocacy groups for the
trust beneficiaries, for-profit guardian companies and private
guardians for Alaskans. SB 190 incorporates the following statute
changes as recommended by the stakeholder group:
· Clarifies the role of an attorney who represents a ward or
respondent
· Creates an interim guardian
· Allows the expanded use of private for-profit guardianship
services
· Clarifies that a guardian may also serve as a conservator
· Requires a report on the availability of a private guardian
or conservator be on an annual basis instead of every six
months
· Clarifies that the Office of Public Advocacy (OPA) may not
use improper pressure to influence recommendations
4:00 p.m.
CHAIRMAN THERRIAULT called a brief at ease to wait for Brandt
McGee.
4:10
CHAIRMAN THERRIAULT called the meeting back to order. He noted
Senator Wilken's anticipated CS adds language to the bill; it
doesn't necessarily replace the proposed language.
He said he had several questions that he wanted entered in the
record. First, he has anecdotal evidence that OPA is not
following the requirement that a public guardian must report to
the court every six months on the efforts to find a private
guardian or conservator. He expressed concern that the bill
proposes to change the reporting from every six months to an
annual basis. He would like to understand what has been going on
and the reasoning behind the change.
Section 1 states, "The principal duty of an attorney representing
a ward or respondent is to represent the ward or respondent
zealously. Zealous representation includes at least personal
interviews…." He said he's also concerned because a number of
times he's heard that some of these individuals appear before the
court and have never met the person they are supposedly
representing.
He asked Mr. McGee to comment on the bill and discuss the
additional sections the committee will be asked to consider in
the possible CS.
MR. BRANDT MCGEE from the Department of Public Advocacy said he
would give a brief sectional analysis.
Section 1 is designed to separate the duties of an attorney and a
guardian ad litem. Those terms are used interchangeably in the
1982 statute and they are separate and distinct functions. The
role of the attorney is to represent the wishes of his or her
client and the role of a guardian ad litem is to represent their
best interests. Both roles cannot be played at once. Although an
attorney can switch roles and become a guardian ad litem, the
roles must be performed sequentially, not at the same time.
Deleting the latter part of subsection 3 clarifies this.
Subsequent sections in the bill further clarify the distinction
between an attorney and a guardian ad litem.
Sections 2-5 are devoted to the new legal term, "interim
guardianship." Currently there are only emergency and regular
guardianships. If one files for a regular guardianship, it may be
months before that guardianship is considered. Emergency
petitions are generally filed even though the specific legal
criteria may not be met. The purpose of the interim guardianship
is to provide another choice for the court and the petitioner.
This language is adopted pursuant to the McDowell report in 1998.
Section 6-7 expands the definition of those types of entities
thatmay be appointed as guardian. For-profit corporations are
specifically added to clear up the previous confusion because
they haven't been specifically identified.
Section 8 says the guardian has the powers and duties of a
conservator unless another distinct conservator has been
appointed. This will be beneficial for financial institutions
that sometimes question whether a guardian can perform financial
functions as well.
Section 9 clarifies the role of an attorney as in Section 1.
Under current ethical standards, it's not possible for an
attorney to also be a guardian ad litem.
Section 10 changes from 6 months to annually, the reporting
requirement for a public guardian on efforts to find a suitable
private guardian or conservator. The only way a public guardian
learns an alternative to guardianship is if someone else steps
forward. There is little need for a search for such a person
because those searches are conducted by the visitor prior to the
appointment of anyone to act as guardian. Public guardians would
immediately bring a motion to change guardianship if they learned
of another available person because this is one of the few ways
they have to control their caseload.
Section 11 is intended to further preclude the Office of Public
Advocacy from exercising any undue influence over persons who are
acting as OPA contractors.
Section 12 recognizes the difficulty a visitor might have in
locating any express wishes regarding medication and changes the
wording accordingly. Current law imposes an impossible burden on
the visitor.
Section 13 also deals with the roles of attorneys and guardians
ad litem.
CHAIRMAN THERRIAULT referred to Sections 6 & 7 and asked why
there is a prioritized system listed in Section 6 while Section 7
says the priorities are not binding.
MR. MCGEE said that is essential because there are often
inappropriate people in those categories. There must be a way for
the court to use discretion to rule out certain people who might
be appointed, but are inappropriate guardians or conservators.
The court shouldn't be forced to appoint an individual simply
because they fall in a higher level of priority. Of course the
court would use discretion and have to show cause for ignoring
the priorities. He said he hasn't heard of many conflicts over
this.
CHAIRMAN THERRIAULT said the concern he has heard is that the
private associations or non-profits are ranked above the public
guardian but the visitor, who is a state employee, refers the
majority of the cases to the public guardian.
MR. MCGEE said the visitor is a private contractor, not a state
employee.
CHAIRMAN THERRIAULT said when he was sitting on the
Administration Budget Subcommittee, he remembers hearing that
caseloads were high. However, when he was back in the district he
would hear from private attorneys and people working for the non-
profits that they couldn't get cases referred to them because the
public guardians had them all. With that in mind, the proposed
deletion in Section 10 raises questions.
MR. MCGEE said that for many years two private guardianship
agencies in the Fairbanks area have alleged that OPA is in
competition with them for cases because the only way OPA can
justify their budget is to continue to add cases. They say they
are not being appointed cases because he is telling visitors not
to recommend appointment of those entities. He said neither of
those allegations is true. Legislative auditors thoroughly
examined the competition charge prior to issuing their most
recent report. They found the charges to be completely untrue and
their recommendation was that the private guardianship agencies
needed to do more outreach to improve their competitive economic
position. He said OPA has no interest in taking any new cases;
his guardians have in excess of 80 cases apiece now, which is
over three times the load when they took over this function in
1985. Based on national standards, they have justification for
hiring six new guardians. It's clear they don't need new cases to
justify their existing budget.
CHAIRMAN THERRIAULT asked how they were handling the requirement
to report to the court at least once every six months on efforts
to find a private guardian or conservator.
MR. MCGEE said he has never heard of anyone making a report on
that and has never seen such a report. At the same time, he knows
of no instances where a public guardian didn't immediately bring
it to the attention of the court if they found a suitable
substitute guardian.
CHAIRMAN THERRIAULT asked if those cases are generally moved
through the court and the guardianship is passed to a family
member or private guardian.
MR. MCGEE said typically guardianship is passed to a family
member; he doesn't know if such cases have been moved to a
private guardianship entity. He knows there is a significant
level of distrust of private guardianship entities throughout the
system.
CHAIRMAN THERRIAULT asked him to address other areas of the bill
that have language proposed for inclusion in the bill.
MR. MCGEE said he has spoken with Senator Wilken's staff and
Terry Banister from the Legislative Affairs Agency about some
ideas he has in light of support findings issued in the spring
and fall of 2001 regarding one of the private guardianship
entities. First, he proposes that the level of reporting
requirements be increased for private guardianship entities that
are paid for their services. This includes a provision that
requires a CPA audit of their organization on an annual basis.
Further, he proposes that they be required to provide a monthly
accounting of the charges they make for their services to each
client and to get court approval if they charge more that
$1,000.00 per month for a client. The reports would be sent to
both the probate court and the Office of the Long-Term Care
Ombudsman.
Currently there is no significant control over the billing
activity of private guardianship entities and their reports are
not required to have any detail regarding their charges to
clients. They are able to bill whatever they choose and the
billing is submitted to an account rather than to an individual
who will review the bill.
The court system is responsible for receiving the reports but has
never been staffed to perform investigations other than on an ad
hoc basis. If someone speaks up, they will always appoint a
visitor to investigate the circumstances, but there is no regular
review of billing practices of private guardianship agencies.
There is no state government entity that is an obvious candidate
for this function. The court system has no desire to add to their
list of non-adjudicated functions and the OPA is an inappropriate
entity to investigate complaints about or monitor private
guardianship agencies. First they would be charged with being in
competition with these agencies and second, they provide
representation and advocacy not investigative services.
The Office of the Long-Term Care Ombudsman is suggested because
many of the individuals that are protected under long-term care
are also guardianship cases. Additionally, they are an
investigative agency with the skill to perform investigations.
CHAIRMAN THERRIAULT asked if the state is able to recoup some of
the expenses incurred in a guardianship case in which the
incapacitated individual has resources.
MR. MCGEE said they recoup money from all their clients unless
doing so would cause undo hardship. They collect a standard
$40.00 per month charge from each client; even those who are only
receiving state and federal assistance because of their mental
capacity are charged. They recoup about $250,000.00 a year, and
most of it comes from the individual's permanent fund dividends.
However, they don't have the ability to charge those individuals
that have additional resources more than $40.00 per month unless
a significant financial transaction is conducted.
CHAIRMAN THERRIAULT asked how this compares to the private
guardians.
MR. MCGEE said they are able to charge whatever they want
whenever they want, but the great benefit to private guardianship
entities is that there is no cost to the public for their
services. In 1989 when the Community Advocacy Project of Alaska
(CAPA) was first organized, they were very supportive because
they believed private guardianship entities would be an option
for individuals with resources to pay for their own guardianship
services and OPA would not be involved. They continued to be
supportive for many years until "things frankly kind of turned
sideways with respect to their operations."
CHAIRMAN THERRIAULT asked what happened.
MR. MCGEE said they do not receive the annual visitor reports on
private guardianship entities, but when incapacitated individuals
are rendered indigent, OPA inherits the cases and finds that many
are "a mess." Also, the former executive director stole about
$475,000.00 from the program, which provided a real wakeup call
for many within the system.
Two things are increasing their caseloads. First is the graying
of Alaska and second, more people are becoming aware of the
benefits of guardianships. The only way to reduce their incoming
caseload is through private guardianship entities so they are
completely supportive of the concept.
CHAIRMAN THERRIAULT asked how he found out about the
embezzlement.
MR. MCGEE said he received a call from the current executive
director of CAPA in the summer of 2000. The other information he
has is contained in the findings of the probate and superior
courts in cases in 2001.
CHAIRMAN THERRIAULT asked whether the individual was indicted.
MR. MCGEE said he was not, but he is still under investigation.
He added that the records of CAPA in Anchorage burned.
CHAIRMAN THERRIAULT agreed that with the aging of the Alaskan
population, this will become a larger issue. He said he wants a
better understanding before moving forward on the bill and would
like to see the additional language Mr. McGee has for possible
inclusion in the CS.
SB 190 was held in committee.
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