Legislature(2001 - 2002)
02/19/2002 03:40 PM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= 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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