03/14/2008 03:04 PM House L&C
| Audio | Topic |
|---|---|
| Start | |
| HB391 | |
| SB101 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE LABOR AND COMMERCE STANDING COMMITTEE
March 14, 2008
3:04 p.m.
MEMBERS PRESENT
Representative Kurt Olson, Chair
Representative Mark Neuman, Vice Chair
Representative Carl Gatto
Representative Jay Ramras
Representative Robert L. "Bob" Buch
Representative Berta Gardner
MEMBERS ABSENT
Representative Gabrielle LeDoux
COMMITTEE CALENDAR
HOUSE BILL NO. 391
"An Act relating to project labor agreements."
- MOVED CSHB 391 (L&C) OUT OF COMMITTEE
SENATE BILL NO. 101
"An Act relating to private professional conservators and
private and public guardians."
- MOVED CSSB 101(2d L&C) OUT OF COMMITTEE
HOUSE BILL NO. 230
"An Act establishing a fee for disposable plastic bags
distributed by retail sellers of goods or services to consumers
to carry away or protect goods; and establishing the Alaska
litter and marine debris reduction and recycling fund."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 391
SHORT TITLE: STATE CONSTRUCT'N PROJECT LABOR AGREEMENT
SPONSOR(s): REPRESENTATIVE(s) KELLY
02/19/08 (H) READ THE FIRST TIME - REFERRALS
02/19/08 (H) L&C, FIN
03/05/08 (H) L&C AT 8:00 AM CAPITOL 17
03/05/08 (H) Heard & Held
03/05/08 (H) MINUTE(L&C)
03/10/08 (H) L&C AT 3:00 PM CAPITOL 17
03/10/08 (H) Heard & Held
03/10/08 (H) MINUTE(L&C)
03/14/08 (H) L&C AT 3:00 PM CAPITOL 17
BILL: SB 101
SHORT TITLE: GUARDIANSHIP/ CONSERVATORS/INCAPACITY
SPONSOR(s): LABOR & COMMERCE
02/28/07 (S) READ THE FIRST TIME - REFERRALS
02/28/07 (S) L&C, STA, FIN
03/08/07 (S) L&C AT 1:30 PM BELTZ 211
03/08/07 (S) Heard & Held
03/08/07 (S) MINUTE(L&C)
03/13/07 (S) L&C AT 1:30 PM BELTZ 211
03/13/07 (S) Moved CSSB 101(L&C) Out of Committee
03/13/07 (S) MINUTE(L&C)
03/14/07 (S) L&C RPT CS 3DP 1NR SAME TITLE
03/14/07 (S) DP: ELLIS, BUNDE, DAVIS
03/14/07 (S) NR: STEVENS
03/27/07 (S) STA AT 9:00 AM BELTZ 211
03/27/07 (S) Heard & Held
03/27/07 (S) MINUTE(STA)
03/29/07 (S) STA AT 9:00 AM BELTZ 211
03/29/07 (S) Moved CSSB 101(STA) Out of Committee
03/29/07 (S) MINUTE(STA)
03/30/07 (S) STA RPT CS 3DP 2NR SAME TITLE
03/30/07 (S) DP: MCGUIRE, GREEN, BUNDE
03/30/07 (S) NR: FRENCH, STEVENS
01/15/08 (S) RETURNED TO L&C COMMITTEE
01/24/08 (S) L&C AT 3:00 PM BELTZ 211
01/24/08 (S) -- Rescheduled to 01/25/08 --
01/25/08 (S) L&C AT 3:00 PM BELTZ 211
01/25/08 (S) -- Rescheduled from 01/24/08 --
01/28/08 (S) L&C RPT CS(2D) 4DP NEW TITLE
01/28/08 (S) DP: ELLIS, BUNDE, DAVIS, HOFFMAN
02/06/08 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/06/08 (S) Heard & Held
02/06/08 (S) MINUTE(FIN)
02/19/08 (S) FIN RPT CS(2D L&C) 4DP 3NR
02/19/08 (S) DP: ELTON, THOMAS, DYSON, HUGGINS
02/19/08 (S) NR: HOFFMAN, STEDMAN, OLSON
02/19/08 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/19/08 (S) Moved CSSB 101(2d L&C)) Out of
Committee
02/19/08 (S) MINUTE(FIN)
02/25/08 (S) TRANSMITTED TO (H)
02/25/08 (S) VERSION: CSSB 101(2D L&C)
02/27/08 (H) READ THE FIRST TIME - REFERRALS
02/27/08 (H) L&C, JUD
03/12/08 (H) L&C AT 3:00 PM CAPITOL 17
03/12/08 (H) -- MEETING CANCELED --
03/14/08 (H) L&C AT 3:00 PM CAPITOL 17
WITNESS REGISTER
REPRESENTATIVE MIKE KELLY
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions as the prime sponsor of
HB 391.
DEREK MILLER, Staff
to Representative Mike Kelly
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented Amendment 1 on HB 391 on behalf
of the prime sponsor, Representative Mike Kelly.
DANA OWEN, Staff
to Senator Johnny Ellis
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 101 on behalf of the prime
sponsor, the Senate Labor and Commerce Committee.
JOSH FINK, Director
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 101 and answered
questions.
DEBORAH BEHR, Chief Assistant Attorney General
Legislation and Regulations Section
Civil Division (Juneau)
Department of Law (DOL)
Alaska Uniform Law Commissioner
National Conference of Commissioners on Uniform State Laws
(NCCUSL)
Juneau, Alaska
POSITION STATEMENT: Answered questions on SB 101.
MARIE DARLIN, AARP Coordinator
AARP Capital City Task Force
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 101.
ACTION NARRATIVE
CHAIR KURT OLSON called the House Labor and Commerce Standing
Committee meeting to order at 3:04:13 PM. Representatives
Gatto, Buch, Gardner, Neuman, and Olson were present at the call
to order. Representative Ramras arrived as the meeting was in
progress.
HB 391-STATE CONSTRUCT'N PROJECT LABOR AGREEMENT
3:04:29 PM
CHAIR OLSON announced that the first order of business would be
HOUSE BILL NO. 391, "An Act relating to project labor
agreements."[Before the committee is the committee substitute
for (CS) HB 391, Version 25-LS1493\C, Wayne, 2/26/08.]
3:04:39 PM
REPRESENTATIVE GARDNER made a motion to adopt Amendment 1,
labeled 25-LS1493\C.1, Wayne, 3/10/08, which read:
Page 2, following line 9:
Insert a new subsection to read:
"(c) An employer or labor representative who
participates in or administers a fringe benefits
program that is available for selection by an employee
under (b) of this section shall provide to the
employee a written description of the fringe benefits
program within seven days after a request by the
employee."
Reletter the following subsection accordingly.
Page 2, line 28, following "agreement;":
Insert "an employer or labor representative who
administers a fringe benefits program that is
available for selection by an employee under this
paragraph shall provide the employee with a written
description of the fringe benefits program within
seven days after a request by the employee;"
3:04:52 PM
REPRESENTATIVE BUCH objected for purposes of discussion.
3:05:00 PM
REPRESENTATIVE MIKE KELLY, Alaska State Legislature, asked his
staff to present Amendment 1.
3:05:16 PM
DEREK MILLER, Staff to Representative Mike Kelly, Alaska State
Legislature summarized Amendment 1. He stated that Amendment 1
would require an employer to provide a written description of
the fringe benefit package at the request of the employee to
ensure full disclosure and to allow the employee to make an
informed decision. He noted that the language is in proposed SB
276. Amendment 1 satisfies concerns that were raised in the
other body on the companion bill. Thus, the sponsor would like
to offer Amendment 1 to HB 391 for members' consideration.
3:06:06 PM
REPRESENTATIVE BUCH made a motion to adopt a Conceptual
Amendment to Amendment 1, as follows:
On page 1, line 13
Delete, "a written description of the fringe
benefits program"
Insert, "all pertinent information"
REPRESENTATIVE BUCH explained that many of these jobs include
all kinds of information. He said he agreed that the
information should be given to the employee within 7 days, but
items such as material safety data sheets, federal Occupational
Safety and Health Administration (OSHA) information, wage
options, retirement options, and specific information relating
to the job should be made available within 7 days.
3:07:32 PM
REPRESENTATIVE NEUMAN objected to the amendment to Amendment 1.
REPRESENTATIVE KELLY opined that the amendment to Amendment 1
was too broad. "There is never an end to all pertinent
information," he said. He offered that it could refer to the
fringe benefits package. He expressed opposition to adopting
the amendment to Amendment 1.
3:08:43 PM
REPRESENTATIVE BUCH related his own experience in working on
construction jobs with chemicals present. He opined that by the
time the employees requested and obtained the information, that
portion of the job was completed. The employees were not aware
of the conditions pertinent to the specific chemicals. He
expressed concern for the employee's health and safety.
REPRESENTATIVE KELLY maintained his objection to the amendment
to Amendment 1. He related his own experiences with safety data
sheets and opined that falls under current federal law,
including the OSHA requirements. He noted that Amendment 1
assumes that all of the federal requirements will be adhered to,
as well as state requirements.
REPRESENTATIVE BUCH acknowledged that information is available
on site in a book form. However, he opined that the employee
does not have time to do a thorough review and it's important to
provide the information to them for their review.
3:11:45 PM
REPRESENTATIVE NEUMAN inquired as to the specific information
that would be included in the amendment to Amendment 1. He
related his understanding of the intent of Amendment 1 is that
the sponsor would like employees to obtain the necessary
information pertaining to the fringe benefits package.
REPRESENTATIVE BUCH answered that pertinent information would be
whatever the employee ascertains is important and requests such
that he/she should be able to obtain a copy within 7 days. If
the supervisor or employer determined the requested information
is not available or does not apply, then the employee's request
would be denied. In further response to Representative Neuman,
Representative Buch explained pertinent would be whatever is
germane to the job.
CHAIR OLSON offered that the amendment to Amendment 1 is narrow
in scope and is limited to information on employment benefits
package, not safety requirements.
REPRESENTATIVE KELLY pointed out that the information
Representative Buch is referring to is information that is for
all union and non union employees. The information in question
is for employers to provide and is competitive such that the
employee would need the information to make an analysis of the
benefits package, he noted.
3:15:19 PM
REPRESENTATIVE GARDNER reminded members that the information
that is pertinent to the health and safety for employees is
covered under current state and federal law. She opined that
Amendment 1 speaks to information specific to the fringe
benefits package.
REPRESENTATIVE NEUMAN maintained his objection.
3:17:15 PM
The committee took an at-ease from 3:17 p.m. to 3:18 p.m.
3:18:15 PM
REPRESENTATIVE BUCH reiterated the amendment to Amendment 1.
REPRESENTATIVE GATTO expressed concern with "all pertinent
information" and inquired as to what it would entail.
3:19:21 PM
A roll call vote was taken. Representative Buch voted in favor
of the amendment to Amendment 1. Representatives Gatto, Ramras,
Gardner, Neuman, and Olson voted against it. Therefore, the
amendment to Amendment 1 failed by a vote of 1-5.
3:19:55 PM
REPRESENTATIVE GARDNER related her understanding that a written
description of the fringe benefits package would include items
such as the fringe benefits, the cost to the employee, the
vesting period, and other information necessary for the employee
to make an informed comparison of the benefits package.
REPRESENTATIVE KELLY agreed.
CHAIR OLSON, after first determining no one else wished to
testify, closed public testimony on HB 391.
3:21:05 PM
CHAIR OLSON asked if there were any objections to adopting
Amendment 1.
There being no objection, Amendment 1 was adopted.
3:21:50 PM
REPRESENTATIVE BUCH related that employers generally provide a
wage, insurance, and often some type of retirement plan.
However, the employer is the one to select what wage and
benefits that the company will offer. An "at will" employee
must abide by the conditions of employment. Employees in a non
bargaining unit never have a choice in the wage or benefits
package, he opined. He inquired as to whether the sponsor could
provide clarification.
CHAIR OLSON related his own experiences, in which he accepted
the wage and benefit packages offered to him, except for the
period of time when he owned his own company.
REPRESENTATIVE KELLY agreed with Representative Buch that
employers select the package offered to employees. However, he
highlighted that the requirement for a project labor agreement
(PLA) was placed in the AGIA, but specifically omitted the
language for collective bargaining since nationwide 82 percent
of the work force fall under non bargaining employers. He noted
that in Alaska the rate of union employees is higher, ranging
from 25 to 27 percent union. This bill recognizes the PLA, but
attempts to address the 75 percent of employees who are non
union who may wish to work on the pipeline. Under the bill, the
non union employee would select the fringe benefits package
offered, which would consist of the union or non union fringe
benefits package.
3:29:11 PM
REPRESENTATIVE NEUMAN related his understanding that under the
PLA, the employee can select his /her benefits package, and that
the unions don't object to this concept.
3:32:04 PM
REPRESENTATIVE GATTO referred to the word "fringe" which is used
in Amendment 1, previously adopted. He inquired as to whether
"fringe" is a defined term.
REPRESENTATIVE KELLY offered that Wikipedia defines "fringe
benefits" as benefits that include but are not limited to group
insurance - health, dental, life, etc. -, income protection,
retirement benefits, daycare, tuition reimbursement, sick leave,
vacation. He said he did not think it is probably not important
to define "fringe" since most of us would understand what fringe
benefits means.
REPRESENTATIVE BUCH explained that when an employee negotiates
for a job, the components are for wages and benefits. He
offered that in addition to the wages, the fringe benefits
refers to the whole package.
REPRESENTATIVE GATTO argued that he has never heard fringe
benefits to include wages.
REPRESENTATIVE BUCH answered that in negotiations employers
generally talk about packages, one year it might refer to wages,
another year it may apply to benefits. He opined that referring
to fringe benefits is a fairly standard practice so he said he
understands why "fringe" is included in the language.
3:38:00 PM
CHAIR OLSON inquired as to whether deleting "fringe" would
change HB 391 materially.
REPRESENTATIVE KELLY acknowledged that he has heard benefits
referred to in both ways.
REPRESENTATIVE GATTO made a motion to adopt Conceptual Amendment
to delete, the word "fringe" from HB 391.
3:38:41 PM
REPRESENTATIVE GARDNER inquired as to whether adding
"employment" instead of "fringe" benefits would clarify the
matter.
REPRESENTATIVE KELLY offered his belief that the terms, fringe
benefits, employment benefits, and benefits in addition to wages
are all within the jargon. While the term could be defined, he
said he did not believe that it needs to be defined. He
reiterated that the record would reflect the discussion. He
maintained that the terms fringe benefits, employment benefits,
or benefits in addition to wages are what the bill means.
3:39:31 PM
CHAIR OLSON asked if there were any objection to adopting
Conceptual Amendment 2.
REPRESENTATIVE NEUMAN objected.
REPRESENTATIVE NEUMAN related that he has never worked on a job
and been denied his wages earned, but that fringe benefits are
benefits in addition to the wages. A benefits package could be
any extra benefit, which is different than just a benefit, he
opined.
REPRESENTATIVE BUCH related that he received in addition to the
wage, the use of a one bedroom apartment which he would consider
a "fringe benefit." He related that in camps, food and tents
could also be considered fringe benefits.
REPRESENTATIVE NEUMAN maintained his objection.
REPRESENTATIVE GATTO posed a scenario in which a group of
employees is treated to pretzels and potato chips. He opined
that would entail a fringe benefit. He opined that a benefit is
something bargained for, but that a fringe benefit is something
extra and clearly means something different.
3:43:40 PM
A roll call vote was taken. Representatives Ramras, Gardner,
Gatto, and Olson voted in favor of Conceptual Amendment 2.
Representatives Buch and Neuman voted against it. Therefore,
Conceptual Amendment 2 passed by a vote of 4-2.
3:44:49 PM
REPRESENTATIVE BUCH referred to page 2, line 15, "qualified
residents" and inquired as to whether this would be
constitutional since the contractor might be a Canadian company,
such as the TransCanada Pipeline, LTD.
REPRESENTATIVE GATTO concurred with Representative Buch's
concern.
REPRESENTATIVE KELLY opined that this may already be addressed
in AGIA. He further noted his belief that the language
recognizes this concern. He agreed to take the matter to the
bill drafter to check the constitutionality prior to HB 391
moving on to the next committee of referral.
3:47:48 PM
REPRESENTATIVE GARDNER objected.
The committee took an at-ease from 3:47 p.m. to 3:48 p.m.
3:48:08 PM
REPRESENTATIVE GARDNER removed her objection.
REPRESENTATIVE GATTO made a motion to report CSHB 391, Version
25-LS1493\C, Wayne, 2/26/08, as amended, out of committee with
individual recommendations and the accompanying fiscal notes and
forthcoming fiscal notes.
REPRESENTATIVE BUCH objected.
3:48:46 PM
A roll call vote was taken. Representatives Gardner, Neuman,
Gatto, Ramras, and Olson voted in favor of moving CSHB 391,
Version 25-LS1493\C, Wayne, 2/26/08, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes and forthcoming fiscal notes. Representative Buch
voted against it. Therefore, CSHB 391(L&C) was reported out of
the House Labor and Commerce Standing Committee by a vote of 5-
1.
3:49:22 PM
The committee took an at-ease from 3:49 p.m. to 3:51 p.m.
SB 101-GUARDIANSHIP/ CONSERVATORS/INCAPACITY
3:51:31 PM
CHAIR OLSON announced that the final order of business would be
SENATE BILL NO. 101, "An Act relating to private professional
conservators and private and public guardians."
3:52:26 PM
DANA OWEN, Staff to Senator Johnny Ellis, Alaska State
Legislature, testifying on behalf of the Senate Labor & Commerce
Committee, stated that the legislature established licensure and
regulatory oversight of private professional guardians and
conservators in 2004. This bill was drafted with input from the
Office of Public Advocacy (OPA), the Division of Corporations,
Business and Professional Licensing (DCBPL), formerly the
Division of Occupational Licensing, and the Alaska State
Association for Guardianship and Advocacy (SAGA). In addition,
SB 101 is supported by the AARP and other advocates for senior
citizens. This bill has not had any opposition raised in the
numerous hearings held in the Senate, he noted.
MR. OWEN explained that both bills, HB 280 which passed in 2004
and SB 101, have two goals: to ensure that our seniors and
other vulnerable adults are not taken advantage of by those
entrusted with managing their finances and lives, and to
encourage the development of this industry in Alaska. As
Alaska's population grows and ages, these services are becoming
increasingly necessary. The current version of SB 101
incorporates into statutes the Uniform Adult Guardianship and
Protective Proceedings Jurisdiction Act. This act was developed
by the National Conference of Commissioners for Uniform State
Laws to establish common procedures among states for settling
jurisdictional and enforcement issues in cases that cross state
borders. This bill would clarify that the DCBPL may refuse to
renew a license as well as take disciplinary action if the
licensee has failed to meet the licensure requirements. It
would specify those criminal convictions that would preclude an
individual from obtaining a license and it would require that
public guardians possess the same certification and pass the
same background check required of private professional
guardians. Additionally, SB 101 would make a number of
"housekeeping" improvements including: eliminating the need for
multiple licenses and fees; clarifying that bonding and
insurance requirements are set by the court; clarifying that
individuals caring for family members and certain financial
institutions are exempt from the licensing requirement;
clarifying the requirements for the annual report required of
all guardians and conservators; eliminating the need for a
costly expert evaluation in cases where the respondent agrees to
a protective appointment; requiring the court to make written
findings if it deviates from the priority list of potential
guardians and conservators; and exempting the respondents or
awards files from inspection or copying under the public records
act unless the records are relevant to an investigation or
formal proceeding. He concluded that he has only touched on a
few provisions in SB 101.
3:55:28 PM
JOSH FINK, Director, Anchorage Office, Office of Public Advocacy
(OPA), Department of Administration (DOA), explained that Mr.
Owen summarized SB 101 well. This bill was introduced by the
Senate Labor and Commerce committee to fix some unintended
consequences from HB 280, which passed the legislature in 2004.
He echoed Mr. Owen's testimony on the bill's history. He noted
that the primary unintended consequence of passage of the
enabling legislation was that private professional guardians
would be subject to multiple licenses, including an
organizational license for their business, an individual license
for each person in that business. This bill would require an
individual license, either a full guardianship which includes
conservatorship services, a conservatorship license which does
not include the guardianship, but just the financial aspects, or
a partial guardianship which allows the guardian to make
decisions except for conservator services.
3:57:30 PM
MR. FINK, in response to Representative Gardner, explained that
a conservator has authority over the ward's financial estate
such that he/she would pay the bills, receives money, and
budgets. A full guardian performs the conservator functions,
but can also make legal decisions, medical decisions including
treatment, and housing decisions. Partial guardians are used by
individuals that do not need the services of the conservator,
but still need some legal and medical decisions, he noted.
3:58:20 PM
REPRESENTATIVE BUCH inquired as to whether a person is required
to have a license to care for offspring or relatives.
MR. FINK answered no, that the way the statutes are written, if
the conservator or guardian is caring for two or more people,
he/she must have a license, but there is an exemption for
providing conservator or guardian services for one person.
3:59:06 PM
REPRESENTATIVE GATTO inquired as to whether SB 101 has a
conflict of interest provision. He related that as a
conservator or financial manager that the person could buy and
sell stocks, bonds, or other entities that benefit the
conservator.
MR. FINK responded that while that matter is not addressed
specifically in SB 101, it is addressed in existing law. A
conservator has a fiduciary relationship and is covered by
current law. Additionally, the conservator's fees must be
approved by the court. The conservator is required to submit an
annual report to show actions taken on behalf of the client.
REPRESENTATIVE GATTO related his understanding that some people
buy and sell frequently to earn commissions. He inquired as to
whether that type of action would be a violation.
MR. FINK explained that in order to become a conservator or
guardian someone such as adult protective services or a family
friend petitions the court, a court visitor investigates the
need for a conservator or guardian, and makes a recommendation
for a conservator or guardian. Additionally, the statute
establishes a priority, first it is the named choice of the
respondent, next the spouse, then the adult children, with the
Office of Public Advocacy (OPA) as the last choice. The court
appoints an attorney to represent the ward's interests. The
court visitor and attorney report to the court their
recommendations for conservator or guardian. The court will
specify the types of fees that the conservator or guardian can
receive. Thus, if the conservator or guardian exceeded those
fees he/she could be criminally liable for violating his/her
judiciary responsibilities. The court would not appoint
someone's stockbroker, he opined.
4:02:12 PM
REPRESENTATIVE GATTO posed a scenario in which a sibling has the
power of attorney to act on behalf of the person. Once the
sibling is appointed guardian, the sibling would still be
trading stocks on behalf of the ward. He inquired as to whether
that would be a conflict.
MR. FINK answered that it would depend. If the sibling made a
commission on each sale, it would probably be a conflict, he
opined. However, if the sibling received a flat monthly fee and
did not profit, it probably would not be a conflict. This bill
does not address powers of attorney. Even siblings would be
under court purview and would still have to submit to the court
investigator, court attorney, and file an annual report, he
noted.
REPRESENTATIVE GATTO posed a further scenario in which a sibling
is the conservator, but sells the ward's house under the market
value to a friend. He asked if that would constitute a crime.
MR. FINK answered that would depend on specific facts. If a
person were not a ward of the court, the person could sell a
house for less than market value. However, if someone were
incapacitated, it might be suspect. He pointed out that his
office has an elder fraud and assistance section that would
investigate that type of matter.
4:05:24 PM
REPRESENTATIVE GATTO referred to page 22, lines 8-9, and asked
for a definition of "insular possession".
MR. FINK explained that this portion of SB 101 refers to the
federal Uniform Jurisdiction Act.
DEBORAH BEHR, Chief Assistant Attorney General, Legislation and
Regulations Section, Civil Division (Juneau), Department of Law
(DOL), Alaska Uniform Law Commissioner, National Conference of
Commissioners on Uniform State Laws (NCCUSL), referred to page
[22], lines 7-9, and explained that this is the standard
definition that the uniform law commissioners use for states to
cover other possessions subject to jurisdiction of the United
States such as Guam, Puerto Rico, and American Samoa.
4:06:47 PM
REPRESENTATIVE NEUMAN referred to page 1, line 7, and asked why
"private professional" is added.
MR. FINK answered that "private professional" guardian is clean
up language that replaces "individual" or "organizational"
throughout the bill. He explained that these changes will
remove the necessity for the requirement for numerous licenses
that were unintended consequences of the passage of HB 280 in
2004.
REPRESENTATIVE NEUMAN referred to page 6, line 24, which read:
"fails to maintain a bond or other surety as required by a court
order" and inquired as to whether each individual would be
required to get a bond.
MR. FINK explained that currently an organization or individual
must show proof of ability to bond. However, the Division of
Corporations, Business, and Professional Licensing (DCBPL) does
not require social or medical professionals to submit to
bonding. Additionally, the court rule allows the court, based
on size of estate, to require a bond. Thus, it seemed
duplicitous to require proof of ability of bonding without
setting a specific amount. Since the size of the estate varies,
it posed problems. Therefore, at the hearing when the judge
makes the appointment, the judge can determine whether or not a
bond is required and the amount of the bond. The specific
language on page 6, lines 24-25, is necessary so that in the
event the court orders it and the person did not obtain the bond
or surety, that it is a license violation.
4:10:23 PM
REPRESENTATIVE NEUMAN inquired as to whether an individual would
have to carry a bond.
MR. FINK answered that the license is particular to the
individual, so if a business consists of three guardians, the
business would need to be licensed. The bond requirement would
attach to each licensee.
REPRESENTATIVE NEUMAN inquired as to whether the cost of the
bonding requirement is onerous.
MR. FINK offered that under current law the court can require
guardians to submit to a bond. He noted that currently only a
handful of private professional guardians practice in the state.
He opined that this language would not add any impediments, but
would remove the impediment that the licensee must show proof of
the ability to bond.
4:11:55 PM
REPRESENTATIVE NEUMAN referred to page 2, paragraph [4], and
asked if a theft of a pack of cigarettes would prevent a person
from becoming licensed as a guardian.
MR. FINK answered that only misdemeanors that involve dishonesty
such as fraud, omission, or misrepresentation would apply. He
noted it is a policy call.
REPRESENTATIVE NEUMAN inquired as to whether the Department of
Commerce, Community, & Economic Development (DCCED) would make
the determination. He expressed concern that a person convicted
of a small theft would not be able to be employed as a guardian,
even if his/her debt to society has been paid.
MR. FINK, in response to Representative Neuman, answered that if
a person were convicted of a crime of dishonesty the person
could not become a guardian or conservator.
REPRESENTATIVE NEUMAN referred to page 5, proposed paragraph
(3), with respect to the financial statement, and asked for
clarification.
MR. FINK offered that the DCCED and the Alaska State Association
for Guardianship and Advocacy (ASAGA) asked for this provision
to provide accountability. The conservator is managing
someone's estate, so it is relevant to review fees charged and
his/her business expenses. In further response to
Representative Neuman, Mr. Fink explained that the person would
provide this information at the time of licensure.
4:16:17 PM
REPRESENTATIVE NEUMAN referred to page 6, page 24, and inquired
if the bond is at the discretion of the court.
MR. FINK explained that the court would set the amount of the
bond based on the particular circumstances. He pointed out that
the ward has an attorney to represent his/her interests, but
that the court would ultimately decide. He noted that if the
person is a family member, he/she would be exempt from the bill.
However, he pointed out that under current law, family members
would still be required to file an annual report.
4:18:57 PM
REPRESENTATIVE NEUMAN referred to page 7, lines [12]-14, and
asked for clarification of AS 06.26.020.
MR. FINK answered that statute exempts financial institutions
which have a trust department that provide these services. The
financial institutions have federal oversight. Mr. Fink further
clarified that AS 06.26 is the Revised Alaska Trust Company Act.
CHAIR OLSON opined that the federal oversight provides stricter
guidelines for the financial institutions.
4:20:06 PM
REPRESENTATIVE RAMRAS related his experience in employing a
developmentally disabled person. He expressed concern that the
job coach takes the approximate $2,500 earnings per year. He
inquired as to whether that is appropriate and what oversight,
if any, that his office would have in such matters.
MR. FINK pointed out the conservator or guardian would have
fiduciary responsibility to use any earnings in the best
interests of the ward. He suggested options to investigate
matters could include petitioning the court to review the case,
or filing a complaint with OPA. He further suggested that a
person could also file a complaint with adult services when a
concern exists that a developmentally disabled person is being
exploited. He further suggested that the conservator or
guardian might be able to explain how the money is being spent
on behalf of his/her ward. In further response to
Representative Ramras, Mr. Fink explained that the court could
appoint a visitor to investigate any matter that appears
suspicious.
4:23:58 PM
REPRESENTATIVE GARDNER related her experience with a family
member with dementia. She explained that her family hired out-
of-state professionals, with first a conservator and then a
guardian. She pointed out that the annual report is to assure
the court that the estate is being handled appropriately and the
needs of the ward are being met. The bond is to protect the
best interests of the ward. While the statutes may seem
cumbersome, she said she felt that the interests of the ward
were the first priority of the conservator, the guardian, and
the court, she opined.
4:25:07 PM
MR. FINK added that OPA offers a family guardianship program to
provide information on all aspects of guardianships. He noted
that OPA provides a binder of information along with a video
that are made available and libraries to provide continuing
education to family members.
4:26:05 PM
MR. FINK, in response to Representative Buch, offered that OPA
has a family guardianship designated telephone line that
provides information on the next classes offered. Besides the
office in Anchorage, the Fairbanks office can conduct classes.
Rural residents are served via mailing them the binder,
including forms and video that provides the information on
guardian and conservators.
4:27:18 PM
REPRESENTATIVE GATTO recalled that former Representative Bruce
Weyrauch previously introduced legislation that he believed was
called the "five wishes" which collected various statutes. He
inquired as to whether Mr. Fink had knowledge of this
legislation.
4:28:00 PM
MS. BEHR answered that the information is located in the
statutes. Additionally, she noted that most of the hospitals
distribute powers of attorney forms, at no cost, when people
check into the hospital. Under this bill the family of the
person who had filled out a guardianship form that named a
family member would not be required to be involved with OPA.
4:28:37 PM
REPRESENTATIVE RAMRAS asked to put on the record that he
believes Mr. Fink is a tireless advocate who has a tremendous
breadth of knowledge on these issues.
4:29:14 PM
REPRESENTATIVE NEUMAN referred to page 11, proposed Section 24,
and inquired as to whether this is new language.
MS. BEHR answered that proposed Section 24 is standard language,
that the uniform law commissioners are recommending that all
states adopt. This proposed section will help by providing
similar procedures between states so that when an Alaska family
has a family member outside of Alaska, the process is the same
or similar to our process for appointing a guardian or
conservator.
4:30:02 PM
REPRESENTATIVE NEUMAN inquired as to the reason that prompted
this bill besides adopting the Uniform Adult Guardianship and
Protective Proceedings Jurisdiction Act.
MR. FINK answered that until 2004, the licensure for private
professional guardians did not exist. He explained that at
least one large case exists in which a number of people
complained that they had a private conservator and within a year
their family member's estate was depleted. This resulted in a
significant litigation which is still ongoing to recover the
estate through insurers. However, these cases highlighted a
problem that there wasn't any oversight of conservators and
guardians. At the same time, Alaska has an increasing
population that requires these services. In 2004, the
legislature required licensure and reporting through the DCCED.
Unfortunately, the bill inadvertently created some impediments
for those seeking licensure. He expressed his desire to nurture
this industry and have more private professional guardians and
conservators in Alaska. This bill would correct unintended
consequences. Since this bill relates to private professional
conservators and guardians, the uniform commissioner
incorporated provisions into the bill to assist Alaskans who
have members living outside Alaska that need services of private
professional conservators or guardians.
4:32:07 PM
MS. BEHR further explained the impetus for the Uniform Adult
Guardianship and Protective Proceedings Jurisdiction Act was to
assist people traveling with family members who need services
that require court action. Ms. Behr related her own experience
in which her mother, who lives in Fairbanks, traveled to
California to visit her daughter and had a major stroke. In
this instance, the California court did not know how to proceed
with the case since her mother was not a California resident.
Her family decided the mother needed to stay in California where
the illness occurred, since that is where the care was being
provided and since her sister could provide support. However,
the California court did not know if the case needed to be held
in Alaska, which is expensive, she opined. She pointed out that
if her mother recovered and wanted to move to Juneau that the
changes in SB 101 would make it very easy to transfer the
guardianship back to Alaska.
4:33:16 PM
MS. BEHR, in response to Representative Gatto, explained that a
will is one of the important documents that people can execute.
She offered that a will can help determine many things such as
who will care for any children in the event the parents die.
She further noted that people writing their own wills can miss
vital information such as pension plans.
4:34:25 PM
MARIE DARLIN, AARP Coordinator, AARP Capital City Task Force, in
response to an earlier question, noted that the forms
Representative Gatto referred to are called advanced directives
and are in statute. She explained the forms allow a person to
do whatever he/she wants with respect to appointing someone to
care for their needs in the event the person is incapacitated.
This bill builds on the previous legislation that created the
licensure for conservator and guardians and remedies some of the
problems that arose. She noted she provided the committee with
a letter of support for SB 101. Ms. Darlin emphasized that as
the need for guardians has grown and will continue grow with the
aging population. The courts have found it more difficult to
find family members who are willing to provide conservator or
guardianship services so the need for additional professional
people arises. This bill would improve the quality of care for
people who need conservators and guardians to assist them, she
opined. She noted SB 101 provides safeguards through the
licensure and reporting requirements which helps to ensure that
conservators and guardians are prepared through training and
certification to better understand their responsibilities and
requirements to care for incapacitated people. She pointed out
that these services are helpful to family members since the
incapacitated person is often not in the same town. She offered
AARP's full support for SB 101.
4:37:24 PM
CHAIR OLSON, after first determining no one else wished to
testify, closed public testimony on SB 101.
4:37:43 PM
REPRESENTATIVE GARDNER moved to report CSSB 101(2d L&C) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSSB 101(2d L&C) was
reported from the House Labor and Commerce Standing Committee.
4:38:13 PM
ADJOURNMENT
There being no further business before the committee, the House
Labor and Commerce Standing Committee meeting was adjourned at
4:38 p.m.
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