Legislature(2011 - 2012)CAPITOL 120
02/25/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB150 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 114 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 150 | TELECONFERENCED | |
| += | HB 127 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 25, 2011
1:12 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Chair
Representative Steve Thompson, Vice Chair
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Wes Keller
Representative Lance Pruitt
Representative Mike Chenault (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 150
"An Act relating to the protection of property of persons under
disability and minors; relating to the crime of violating a
protective order concerning certain vulnerable persons; relating
to aggravating factors at sentencing for offenses concerning a
victim 65 years or older; relating to the protection of
vulnerable adults; amending Rule 12(h), Alaska Rules of Criminal
Procedure; amending Rule 45(a), Alaska Rules of Criminal
Procedure; amending Rule 65, Alaska Rules of Civil Procedure;
amending Rule 17, Alaska Rules of Probate Procedure; amending
Rule 9, Alaska Rules of Administration; and providing for an
effective date."
- HEARD & HELD; ASSIGNED TO SUBCOMMITTEE
HOUSE BILL NO. 114
"An Act relating to an opt-out charitable giving program offered
by an electric or telephone cooperative."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 127
"An Act relating to the crimes of stalking, online enticement of
a minor, unlawful exploitation of a minor, endangering the
welfare of a child, sending an explicit image of a minor,
harassment, distribution of indecent material to minors, and
misconduct involving confidential information; relating to
probation; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 150
SHORT TITLE: PROTECTION OF VULNERABLE ADULTS/MINORS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/09/11 (H) READ THE FIRST TIME - REFERRALS
02/09/11 (H) JUD, FIN
02/23/11 (H) JUD AT 1:00 PM CAPITOL 120
02/23/11 (H) Heard & Held
02/23/11 (H) MINUTE(JUD)
02/25/11 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
KELLY HENRIKSEN, Assistant Attorney General
Human Services Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Presented HB 150 and responded to
questions.
TRACI PAIGE, Supervisor
Adult Protective Services
Anchorage Office
Division of Senior and Disabilities Services
Department of Health and Social Services (DHSS)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 150.
RACHEL LEVITT, Director
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to a question during discussion
of HB 150.
JOANNE GIBBENS, Deputy Director
Central Office
Division of Senior and Disabilities Services
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 150.
ACTION NARRATIVE
1:12:39 PM
CHAIR CARL GATTO called the House Judiciary Standing Committee
meeting to order at 1:12 p.m. Representatives Gatto, Thompson,
Gruenberg, Holmes, and Lynn were present at the call to order.
HB 150 - PROTECTION OF VULNERABLE ADULTS/MINORS
1:13:02 PM
CHAIR GATTO announced that the [only] order of business would be
HOUSE BILL NO. 150, "An Act relating to the protection of
property of persons under disability and minors; relating to the
crime of violating a protective order concerning certain
vulnerable persons; relating to aggravating factors at
sentencing for offenses concerning a victim 65 years or older;
relating to the protection of vulnerable adults; amending Rule
12(h), Alaska Rules of Criminal Procedure; amending Rule 45(a),
Alaska Rules of Criminal Procedure; amending Rule 65, Alaska
Rules of Civil Procedure; amending Rule 17, Alaska Rules of
Probate Procedure; amending Rule 9, Alaska Rules of
Administration; and providing for an effective date."
1:15:58 PM
KELLY HENRIKSEN, Assistant Attorney General, Human Services
Section, Civil Division (Juneau), Department of Law (DOL),
noting that the committee had previously received an explanation
of Sections 1 - 7, relayed that Section 8 of HB 150 would add a
definition of the word, "fraud" to Title 13's provisions
pertaining to guardianships and conservatorships; this
definition was taken from the statutes pertaining to the Office
of Elder Fraud and Assistance - AS 44.21.415. Sections 9-11
would alter provisions of Title 18, and address financial
protective orders; specifically, Section 9 would exclude the
crime of violating an ex parte financial protective order from
the list of crimes subject to warrantless arrest, and Sections
10 and 11 would add financial protective orders to the registry
of protective orders maintained by the Department of Public
Safety (DPS).
MS. HENRIKSEN relayed that [Sections 12-41] pertain to AS 47.24,
which governs [the Department of Health and Social Services'
(DHSS's)] adult protective services, which - much like the
Office of Children's Services - receives and investigates
reports of harm to vulnerable adults and, when there is probable
cause to believe that harm is occurring, files petitions for
conservatorship or guardianship. Specifically, Section 12 would
add an employee of an out-of-home residential or health care
facility, and an educator or administrative staff member of an
educational institution, to the list of mandatory reporters.
1:23:49 PM
REPRESENTATIVE GRUENBERG noted that Section 12 would also add
the term, "undue influence" to AS 47.24.010(a), and questioned
why the term, "fraud" isn't being added there as well.
MS. HENRIKSEN, mentioning that there had been discussion on that
issue, explained that it's because Title 47 addresses the health
and welfare of vulnerable adults, whereas Title 13 addresses
fraud and financial matters as they relate to conservatorships
and so warranted the inclusion of that term. Furthermore,
[Section 41's proposed AS 47.24.900(21)] in part defines the
term, "undue influence" as, "deceptively taking control over the
decision making of the vulnerable adult, including decision
making related to finances, property, residence, and health
care"; therefore, the term, "undue influence" is intended to be
a little bit broader than the concept of fraud.
REPRESENTATIVE GRUENBERG acknowledged that point, but suggested
that the term, "fraud" ought to be added to proposed AS
47.24.010(a) regardless, because doing so could be beneficial to
those required to report [suspected harm}.
MS. HENRIKSEN pointed out, though, that there are already many
places in AS 47.24 where the term, "vulnerable adult" along with
a description of the harm that makes someone vulnerable - abuse,
neglect, exploitation, abandonment, or self neglect - is used,
and so several sections of the bill are merely proposing to add
the concept of "undue influence" to those provisions. In
contrast, the term, "fraud" is considered to be an aspect of the
already-used term, "exploitation". In response to a request and
a question, she agreed to research the issue further, and again
relayed that proposed AS 47.24.900(21) defines the term, "undue
influence". That definition requires that the action be
deceptive in nature, and although the question of whether
someone is acting deceptively is subjective, if one believes
that someone is exerting undue influence, then one should file a
complaint with the DHSS's adult protective services, which would
then determine whether such is actually the case.
REPRESENTATIVE GRUENBERG, in response to an earlier question,
noted that the term, "peace officer" - part of the existing
statutory language in Sections 9 and 11 - is defined in AS
01.10.060(a)(7) as:
(A) an officer of the state troopers;
(B) a member of the police force of a municipality;
(C) a village public safety officer;
(D) a regional public safety officer;
(E) a United States marshal or deputy marshal; and
(F) an officer whose duty it is to enforce and
preserve the public peace;
1:30:46 PM
MS. HENRIKSEN - indicating that she would be skipping an
explanation of the sections of the bill that would merely make
conforming changes regarding the term, "undue influence" - went
on to explain that [Section 13] would require a [mandatory]
reporter to include the contact information of the vulnerable
adult in his/her report. Section 15 would permit anyone to make
a report of harm, including a mandatory reporter in his/her non-
occupational capacity; this language was taken from the statutes
pertaining to the Office of Children's Services (OCS) regarding
mandatory reporting. Section 16 would require a public safety
officer to notify adult protective services within 24 hours of
having received a report of harm that involves an imminent risk
of serious physical harm to a vulnerable adult.
REPRESENTATIVE GRUENBERG expressed concern about Section 16's
proposal to delete the words, ", at the earliest opportunity,"
from AS 47.24.010(e). He suggested that instead that language
should be moved to where the proposed new language of, "within
24 hours of receiving the report of harm" is being inserted,
such that that sentence would then in part read, "and shall
notify the department at the earliest opportunity and within 24
hours". Such a change would ensure that the officer doesn't
automatically delay notifying the department for 24 hours.
CHAIR GATTO expressed agreement.
MS. HENRIKSEN indicated that such a change would be acceptable
and in keeping with the administration's goals. In response to
questions, she explained that if a mandatory reporter fails to
report that a vulnerable adult is being harmed, he/she could
face criminal charges; that under existing AS 47.24.010(e), upon
receiving a report, a law enforcement officer must take
immediate action to protect the vulnerable adult, and so all
Section 16 is doing with regard to that officer is requiring
him/her to also notify adult protective services within 24 hours
of receiving the report; that she's not seen any cases in which
an officer, once having received a report of harm to a
vulnerable adult, intentionally didn't take action to protect
the person; and that she is unsure what penalty an officer would
be subject to if he/she doesn't also notify adult protective
services as required.
1:36:50 PM
TRACI PAIGE, Supervisor, Adult Protective Services, Anchorage
Office, Division of Senior and Disabilities Services, Department
of Health and Social Services (DHSS), added that when a report
is made after hours, the department can't respond until the next
business day, and so a mandatory reporter should instead be
reporting to a law enforcement officer, who would then, as
required, take immediate action to protect the vulnerable adult.
In response to comments, she explained that all of the DHSS's
adult protective services' offices' phone messages state office
hours and direct mandatory reporters to contact law enforcement
in emergency situations arising after hours. In response to a
question, she concurred that mandatory reporters who then don't
follow those directions wouldn't be complying with the law.
CHAIR GATTO noted that in Section 16, language on page 9, lines
3-5, says that if the reporting person cannot immediately
contact the DHSS's adult protective services, then he/she is
required to make the report to a law enforcement officer.
REPRESENTATIVE GRUENBERG indicated that that language satisfied
his concern.
MS. HENRIKSEN then explained that Section 18 would add two new
subsections to AS 47.24.010: proposed new subsection (i) would
clarify that a mandatory reporter is still required to report to
the DHSS's adult protective services regardless that he/she may
have also made a report to his/her supervisor or a fellow
employee; and proposed new subsection (j) would provide that a
person who recklessly makes a false report would be civilly
liable for actual damages suffered by the subject of the report.
In response to comments and a question, she clarified that
language in Section 16 regarding bringing an action for damages
pertains to actions taken by a person or an entity attempting to
do a good thing - attempting to help a vulnerable adult - and so
the damages would be limited to only direct economic
compensatory damages for personal injury; in contrast, Section
18's proposed new subsection (j) would pertain to the civil
liability of a person doing a bad thing - making a false report
- and so that person would be civilly liable for actual damages.
In response to a further question, she indicated that proposed
AS 47.24.010(j) applies to reckless behavior, rather than to
mere negligent behavior, because the department doesn't want
people hesitating to make a report.
1:48:32 PM
MS. HENRIKSEN - relaying that Sections 19-24 would merely make
conforming changes - explained that Section 25 would add seven
new subsections to AS 47.24.015, which pertains to the
department's investigatory power. Proposed new subsection (h)
would require individuals and entities to provide [the
department] access to the health and financial records of a
vulnerable adult as part of its investigation. Proposed new
subsection (i) would prohibit anyone from interfering in an
investigation. Proposed new subsection (j) would allow [the
department] to file a petition for an ex parte order granting
access to records if no petition for guardianship or
conservatorship has been filed, and would provide legal
standards for obtaining such an order: there must be a report
of harm, and it must be shown [that either the ex parte order is
necessary in order to access the vulnerable adult, or] that the
records are relevant to the investigation. Proposed new
subsection (k) would allow adult protective services access to
any departmental information necessary to assist in the case -
this concept was borrowed from the statutes pertaining to
certification and licensing. Proposed new subsection (l) would
allow the department to audiotape or videotape an interview of a
vulnerable adult if he/she has the capacity to give his/her
consent and does so. Proposed new subsection (m) would require
the department to provide training to its investigators.
Proposed new subsection (n) would define the term, "financial
records".
MS. HENRIKSEN, in response to questions, explained that the
question of whether a vulnerable adult has the capacity to give
consent would be determined by the social worker handling the
case; that without that consent, the vulnerable adult's
interview cannot be taped; that Section 25's proposed subsection
(h) would probably not violate the federal Health Insurance
Portability and Accountability Act (HIPAA) because the HIPAA
provides an exception allowing certain entities to disclose
information to an agency charged with investigating reports of
harm; that research of what other states are doing indicates
that proposed subsection (h) would not cause any constitutional
problems; and that proposed subsection (j) reflects the DHSS's
desire to have the courts determine that an ex parte order is
warranted in certain situations, instead of simply [obtaining]
subpoena power.
REPRESENTATIVE GRUENBERG expressed disfavor with the department
having so much access to a person's financial and healthcare
records.
MS. HENRIKSEN indicated that the department is requesting these
provisions because it is being stymied in its efforts to access
the vulnerable adult's information when conducting
investigations into reports of harm. The department needs
access to those documents, and under provisions of the bill, it
could seek an ex parte order without first having to create a
court case.
REPRESENTATIVE GRUENBERG questioned, though, whether there
weren't already provisions in the Alaska Rules of Civil
Procedure that allow for obtaining a subpoena without first
filing a court case.
MS. HENRIKSEN relayed that she was nescient regarding whether
there were.
REPRESENTATIVE GRUENBERG expressed concern that [the provisions
of Section 25] would run counter to the Fourth Amendment.
2:00:23 PM
RACHEL LEVITT, Director, Anchorage Office, Office of Public
Advocacy (OPA), Department of Administration (DOA), agreed to
research that issue, noted that the OPA's Elder Fraud and
Assistance section already has the authority to access the
financial records of elders who may be the victims of fraud and
financial exploitation, and offered her understanding that
[Section 25] would merely be providing that same power to the
DHSS.
MS. HENRIKSEN went on to explain that Sections 26-29 would
update the statutes pertaining to surrogate decision-makers by
adding new fiduciaries - attorneys-in-fact, trustees, and
surrogates for health care decisions under AS 13.52.030 - to the
list of those who may serve in that capacity. In response to a
question, she explained that an attorney-in-fact is someone who
holds power of attorney. In response to another question, she
acknowledged that Section 26 would also delete language from AS
47.24.016(a) that precludes a spouse from being chosen as a
surrogate decision-maker for a vulnerable adult if they aren't
living in the same domicile, and indicated her understanding
that this provision of Section 26 would address situations in
which the vulnerable adult is in a nursing home or other health
care facility, for example.
CHAIR GATTO, noting that he doesn't live with his spouse during
the legislative session, expressed favor with the deletion of
that language.
2:04:32 PM
JOANNE GIBBENS, Deputy Director, Central Office, Division of
Senior and Disabilities Services, Department of Health and
Social Services (DHSS), concurred with Ms. Henriksen's summation
of Section 26, and that there could be a variety of reasons the
vulnerable adult isn't living with his/her spouse, and offered
her understanding that [other provisions of law] address
situations involving domestic violence (DV) between a vulnerable
adult and his/her spouse.
REPRESENTATIVE GRUENBERG - commenting on the [potential]
vagueness of the word, "domicile" - expressed favor with Section
26's proposed deletion. He suggested, though, that the phrase,
"permanent separation" should be added to Section 26's proposed
AS 47.24.030(a)(1), which currently precludes a spouse from
being chosen as a vulnerable adult's surrogate decision-maker in
situations where one of the parties has initiated divorce or
dissolution proceedings. Observing, then, that existing AS
47.24.030(a)(2) uses the term, "lives with", he suggested that
more research be conducted to ensure that the provisions of AS
47.24.030(a) are as flexible and inclusive as the DHSS would
wish. For example, should the [grown] grandchild of a
vulnerable adult be included in the list of people who could be
chosen to serve as the vulnerable adult's surrogate decision-
maker?
REPRESENTATIVE HOLMES pointed out that paragraph (6) of proposed
AS 47.24.030(a) allows either a close friend or a relative of
the vulnerable adult to be chosen as a surrogate decision-maker,
and so [grown] grandchildren, for example, are already
addressed.
CHAIR GATTO observed that under AS 47.24.030(a), because the
word, "or" is used at the end of paragraph (5), the DHSS need
choose only one of the people listed in paragraphs (1)-(6).
MS. HENRIKSEN mentioned that generally what she has found, at
least in Southeast Alaska, is that the department only gets
involved with a vulnerable adult to begin with because he/she
doesn't already have someone trustworthy to help him/her. In
response to questions, she offered her understanding that the
reason the person chosen to be a surrogate decision-maker must
be at least 18 years old is because a minor doesn't have the
legal authority to enter into contracts or make the kinds of
decisions that would be required of a surrogate decision-maker;
and that she would research whether an emancipated minor, a
married minor, and a minor serving in the military ought to be
included on the list as well.
2:12:40 PM
MS. HENRIKSEN then explained that Section 30 would add family
members, conservators, and trustees to the list of people who
may be restrained via a court injunction from interfering with a
vulnerable adult's receiving protective services.
REPRESENTATIVE GRUENBERG asked why that list is limited and the
provision doesn't simply apply to anyone who interferes with a
vulnerable adult's receiving protective services.
MS. HENRIKSEN surmised that it was probably the choice of the
drafter to simply add the aforementioned three types of people
to the current list rather than expand the provision to include
everyone, but indicated the DHSS's interest in having this
provision apply to everyone.
REPRESENTATIVE LYNN questioned what would constitute a "family
member" [for purposes of this provision].
MS. HENRIKSEN indicated that the department would be more
concerned with the fact that the interference was occurring at
all rather than with who was doing the interfering, and so would
take action regardless.
CHAIR GATTO, in response to a suggestion regarding how
Section 30 could be changed, mentioned that a committee
substitute (CS) would be a forthcoming.
2:17:14 PM
MS. HENRIKSEN went on to explain that Sections [33-41] would all
address [the definitions laid out in AS 47.24.900]; some
sections add new definitions and some just clarify and update
existing definitions to reflect the DHSS's current practice and
understanding of how "these systems" work. Specifically,
Section 33 would amend the definition of "abuse" in AS
47.24.900(2)(A) such that it would also include the infliction
of emotional distress, and the infliction of fear - including
coercion and intimidation.
REPRESENTATIVE HOLMES asked why Section 33 is also proposing to
delete the word, "wilful" from AS 47.24.900(2)(A).
MS. HENRIKSEN explained that that change was recommended by Ms.
Carpeneti of the DOL's Criminal Division and reflects that that
term generally isn't used anymore and is for the most part
subsumed by the already-included term, "intentional".
REPRESENTATIVE HOLMES questioned what the difference is between
mental distress and emotional distress, and what it would take
to prove either of them.
MS. HENRIKSEN, indicating that she would provide more
information to the committee at a later date, relayed that the
concept [of those two different states of being] was partly
borrowed from other states' laws and partly borrowed from
Alaska's OCS laws, and that this language was intended to be as
inclusive as possible, though the DHSS would probably be
amenable to having it altered.
REPRESENTATIVE GRUENBERG questioned whether the phrase,
"coercion and intimidation" should instead be, "coercion and
duress", and suggested that Section 33 warranted further review.
MS. HENRIKSEN - in response to comments and questions regarding
Section 32 [which would make a conforming change to AS 47.24.130
regarding the term, "undue influence"] - noted that "treatment
by spiritual means through prayer alone" must be consented to by
the person, must be [that of the person's own church or
religious denomination, and must be] administered by an
accredited practitioner of the person's own church or religious
denomination.
REPRESENTATIVE HOLMES added her understanding that Section 32
merely clarifies that [AS 47.24] may not be construed to mean
that a person is being unduly influenced, abused, neglected,
self-neglected, vulnerable, unable to consent, abandoned,
exploited, or in need of emergency or protective services simply
because he/she chooses to receive treatment only through
spiritual prayer.
REPRESENTATIVE GRUENBERG questioned whether the protection
afforded by AS 47.24.130 would also apply in situations where a
person chooses to receive or not receive a particular medical
treatment based on his/her philosophical beliefs.
MS. HENRIKSEN explained that if a person has the capacity to
make a particular health care decision, then [the State] cannot
interfere, and that a person's surrogate is legally obligated to
follow his/her known wishes. However, if there is conflicting
information regarding what those wishes might be, then the
DHSS's adult protective services can seek assistance from the
courts.
REPRESENTATIVE GRUENBERG mentioned that he would be reviewing
Section 32 further.
2:36:03 PM
MS. HENRIKSEN then explained that Section 34 would add an
employee of an in-home care provider to the definition of the
term, "caregiver". The existing definition only includes
[family members,] volunteers, people working on contract, and
people who are complying with a court order; employees of an in-
home care provider don't necessarily have their own contract,
and so Section 34 would bring the definition of "caregiver" up
to date. Section 35 would add a definition of the term,
"informed decision" to the definition of the term, "decision
making capacity"; an "informed decision" would be defined as a
decision made free from undue influence. Section 36 would amend
the definition of the term, "exploitation" in order to capture
the concepts of deception and undue influence.
REPRESENTATIVE GRUENBERG, turning attention back to Section 35,
opined that defining the term, "informed decision" to only mean
a decision made free from undue influence doesn't go far enough;
that term should instead be defined to mean a decision that is
both free from undue influence and that is informed.
MS. HENRIKSEN offered her belief that the existing definition of
the term, "decision making capacity", meaning in part the
ability to understand and appreciate the nature and consequences
of a decision, doesn't make sense unless there is the assumption
that the person has been informed.
REPRESENTATIVE GRUENBERG pointed out, though, that that concept
is not specifically included in the definition of the term,
"informed decision", and again opined that it should be, since
one could be free of undue influence but still be ignorant of
the essential facts.
2:38:38 PM
MS. HENRIKSEN remarked that "the only way we could assess
whether they ... appreciate the nature and consequences of that
specific decision is if ... they've been given the information."
She offered her belief, though, that the administration wouldn't
object to such a change.
REPRESENTATIVE LYNN pointed out, though, that some people may
not want to be informed about certain facts; for example, some
people may not wish to know they have a terminal disease.
MS. HENRIKSEN then acknowledged that someone's ability to assess
and understand the consequences of his/her decision could be
assessed [by the DHSS] without the person having a specific
piece of information.
CHAIR GATTO remarked that a person could make a decision about a
specific course of action he/she wants taken in the future,
while stating that he/she doesn't want to be informed about the
details surrounding that course of action whenever it finally is
undertaken.
REPRESENTATIVE GRUENBERG said, "That may be satisfied when the
definition of 'informed consent' means, 'informed of all the
essential elements', and in that case, it would be irrelevant in
the legal sense, because it wouldn't make a difference."
MS. HENRIKSEN clarified that Section 35 - rather than addressing
the specific level of information a person must have - is
intended to ensure that no one is pressuring a person to do a
particular thing.
REPRESENTATIVE GRUENBERG suggested, then, that the word, "means"
as used on page 16, line 24, should be replaced with the word,
"includes".
MS. HENRIKSEN agreed that that wording would be more precise.
2:43:02 PM
MS. HENRIKSEN went on to explain that Section 37 would clarify
the definition of the word, "neglect". Section 38 would update
the definition of the term, "protective services" by listing
specific examples; "protective services" are services that
alleviate the harm resulting from undue influence, abandonment,
exploitation, abuse, neglect, or self-neglect, and that may be
provided with the consent of the vulnerable adult, of his/her
decision maker, or of the DHSS's adult protective services in an
emergency. Section 39 would clarify the definition of the
phrase, "unable to consent". Section 40 would amend the
definition of the term, "vulnerable adult" such that it would
track specific language in the statutes pertaining to
guardianships and to conservatorships that set out the legal
standard for the appointment of a guardian or conservator.
MS. HENRIKSEN, in response to a question about Section 40 and
its use of the term, "chronic", explained that with regard to
how a mandatory reporter would know when to report, if he/she
suspects that a person is vulnerable, the best thing would be
for the mandatory reporter to report it; doing so but being
mistaken won't result in any penalties, whereas neglecting to do
so would. In response to comments, she agreed to provide the
committee with definitions of [the terms, "chronic" and
"advanced age"].
2:48:00 PM
MS. HENRIKSEN then explained that Section 41 would provide
definitions for the terms, "deception", "fiduciary duty",
"financial institution", "person who stands in a position of
trust or confidence", and "undue influence". The remaining
sections of the bill, Sections 42-47, address proposed changes
to uncodified law and establish an effective date. In response
to a question regarding Section 41, she indicated that the
proposed definition of the term, "financial institution" was
taken from existing Alaska statute, and that the definitions for
the other terms were gleaned from other states' [laws].
REPRESENTATIVE GRUENBERG turned attention to Section 41's
proposed definition of the term, "undue influence", and pointed
out that although it specifies that the term means a person has
acted deceptively, not all instances of undue influence involve
deception. Furthermore, Section 36's proposed addition to the
definition of the term, "exploitation" uses both the term,
"under influence" and the term, "deception". He suggested that
those definitions be revisited to ensure that they satisfy the
administration's intentions.
MS. HENRIKSEN acknowledged those points.
REPRESENTATIVE GRUENBERG expressed concern regarding the
language that would be added to the Alaska Rules of Criminal
Procedure via Section 42, and suggested that the "120-day rule"
pertaining to continuances [in criminal cases] warranted further
review as does the similar rule in the Alaska Rules of Civil
Procedure. "If you're changing rules, make sure that they're
all changed and that they're changed right," he concluded.
CHAIR GATTO, in response to a suggestion and upon determining
that there were no objections, assigned HB 150 to a subcommittee
chaired by Representative Gruenberg.
2:59:03 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:59 p.m.