HB 427-PROTECTION OF PERSONS AND PROPERTY Number 1998 CHAIR WILSON announced that the next order of business would be HOUSE BILL NO. 427, "An Act relating to guardianships and conservatorships, to the public guardian and the office of public advocacy, to private professional guardians and private professional conservators, to court visitors, court-appointed attorneys, guardians ad litem, and fiduciaries, and to the protection of the person or property of certain individuals, including minors; amending Rules 16(f) and 17(e), Alaska Rules of Probate Procedure; and providing for an effective date." Number 1960 JIM SHINE, Staff to Representative Tom Anderson, Alaska State Legislature, presented the bill on behalf of Representative Anderson, sponsor of HB 427. He provided the following sponsor statement: HB 427 will go a long way towards preventing exploitation and mistreatment of vulnerable and incapacitated adults receiving the services of a private guardian or conservator. It was drafted with input from the Alaska State Association for Guardianship and Advocacy, also known as ASAGA, the Office of Public Advocacy, Adult Protective Services, the Long-Term Care Ombudsman's office, the Disability Law Center, and the Senior Advocacy Coalition. In Alaska, professional guardians (both private and public) and family guardians provide services to approximately 2,500 disabled, vulnerable adults. Under current law, private guardians and conservators - individuals with the responsibility to make housing, legal and medical decisions for the disabled, infirm, mentally ill, and seniors - are completely unregulated by the State. Many other states regulate their private guardians appropriately so. Vulnerable and incapacitated adults are easy prey for those wishing to exploit their resources. This legislation would grant the State regulatory authority over private guardians and conservators and establish minimum qualifications and standards. The State oversight and standards for such a sensitive and critical job will help ensure that vulnerable and incapacitated adults receive the care they deserve. HB 427 would ensure those individuals or organizations wishing to serve as private guardians or conservators meet certain criteria, and register with the State. Specifically, this legislation requires private guardians to be certified by the National Guardianship Foundation and have at least 2 years of professional experience working with clients, or a degree in human services, social work, psychology, sociology, gerontology, special education, or a closely related field. HB 427 will also require guardians to have experience in financial management or a degree in accounting. Critically, this legislation prohibits private guardians from registering with the State and practicing until a State and national criminal background check is performed. Finally, HB 427 allows the Division of Occupational Licensing to revoke a private guardian's license if he or she has been found to have abandoned, exploited, abused, or neglected his or her ward, or has become unfit due to professional incompetence. In short, through regulatory oversight and the establishment of professional and academic standards, this legislation will help ensure disabled adults are not exploited by those entrusted to manage their affairs. Number 1882 REPRESENTATIVE GATTO moved to adopt CSHB 427, 23-LS1627\D, Bannister, 4/1/04, before the committee as the working document. There being no objection, CSHB 427, Version D, was before the House Health, Education and Social Services Standing Committee. MR. SHINE responded that he will defer to Betty Wells who has been working with the drafter on the bill. He commented that it is his understanding that Version D has taken away most of the registration requirements and placed the responsibility with the Division of Occupational Licensing. Number 1854 REPRESENTATIVE SEATON asked if the committee could be advised of the differences between Version A and Version D. Number 1806 BETTY WELLS, President, Alaska State Association for Guardianship Advocacy (ASAGA); testified in support of HB 427 and answered questions from the members. She provided the following statement: In terms of what you have in front of you, the first ten pages are the sections [Sec. 13.26.]500 through [Section 13.26.]590 from the earlier draft and took the statutory regulations pretty much verbatim out of 500 through 590 and put that into Occupational Licensing. So the first ten pages of the committee substitute were in the old draft, they were just in the back. In addition to doing that it also added some new language with requirements for licensure in terms of age of the person, education, experience, and provides for a temporary license and those are in 08.26.030 and 040, on page two of the committee substitute. That is the major change from the draft to the committee substitute. CHAIR WILSON commented that this is an effort to pull all of [licensing requirements] together. MS. WELLS replied that the requirements were in the guardianships statutes in AS 13.26. They were moved out of the registration for private professional guardians and pulled together and moved to the statutes for occupational licensing which is in AS 08.01. After conferring with the Division of Occupational Licensing it was decided that there was greater comfort in monitoring this program by calling it a license, she said. It has gone from a registration to a license under the Division of Occupational Licensing, she added. MS. WELLS told the members that the other language in the bill is clarifying current statutory language and practice. She reiterated that the vital changes are in the first ten pages of the committee substitute which regulates private guardians. Ms. Wells explained that currently Alaska has no regulations in place. A couple of years ago there was an incident with a private agency and it eventually went bankrupt. There is still fallout from that, and this event made ASAGA realize that it could no longer be thought that Alaskans are protected, she said. MS. WELLS said that Alaska is not alone in the effort to protect vulnerable adults. She shared that there have been recent news articles in the Detroit Free Press and out of Queens, New York expressing the need for wide spread reform. Number 1712 MS. WELLS reiterated Mr. Shine's comments that this was a collaborative effort which took place over the last six years. Number 1682 REPRESENTATIVE WOLF asked Ms. Wells if she is a guardian. MS. WELLS replied no. She told the members that she is a court visitor in the Third Judicial District in Anchorage. Ms. Wells explained that she has been working with adult guardian investigations for about 15 years. REPRESENTATIVE WOLF asked Ms. Wells if she has a family member or a personal friend that is a guardian. MS. WELLS responded that she does not. She emphasized that she works with guardians. Ms. Wells explained that she is a registered guardian with the National Guardianship Foundation through her work and has served as a guardian on a contract basis through the Office of Public Advocacy at different times. She stated she primarily works as a court investigator. Number 1622 REPRESENTATIVE GATTO commented that the bill is 28 pages long, and the sectional analysis has 33 parts. He asked if Ms. Wells would provide a summarizing statement. MS. WELLS reiterated that the first ten pages of the committee substitute is new legislation which is being proposed to regulate private agencies. Currently there is no legislation in place. For example, a person could have a felony conviction for embezzlement and if a judge were conned into appointing that person he/she could serve as a guardian. She explained that the new legislation takes the responsibility away from the judges and places the licensing requirement with the Division of Occupational Licensing. The rest of the bill is basically clarification and clean up language of the conservatorship and guardianship statutes. She stated that ASAGA believes it is essential to put trust back in the system. Ms. Wells told the members that Alaska is far ahead of many states with respect to the rights that are guaranteed to vulnerable adults. Number 1491 REPRESENTATIVE GATTO asked what was the composition of the group who developed what constituted good regulations. Number 1479 MS. WELLS responded that there was a study done by the McDowell Research Group in 1997 which was funded through the Division of Senior Services in Anchorage. The McDowell Study made six major recommendations. The groups that has been working on this since 1997 are the Disability Law Center, private attorneys, public guardians, private guardianship agencies, court officials, family guardians, Adult Protective Services, and the Long-Term Care Ombudsman. REPRESENTATIVE CISSNA asked if the group looked at what other states have done. MS. WELLS replied that currently Washington and Arizona require that a private professional guardian be licensed or registered with the state and be certified by the National Guardianship Foundation. As of January 1, 2003 Florida requires all professional guardians be licensed and seek ongoing education. California is now working on state specific certification that will work with national certification. She said she believes these states are ahead of Alaska. Ms. Wells explained that there are states out there that do not offer respondents rights of having an attorney or a court hearing. She summarized that Alaska has been ahead in some of the recommendations that have been made nationally, but HB 427 is an important bill. Number 1308 JOSH FINK, Director, Office of Public Advocacy (OPA), testified in support of HB 427 and answered questions from the members. He told the members that he believes this bill is critical because there is a need to regulate the professional industry that has such immense power over vulnerable and incapacitated adults. The state regulates hairdressers, but it does not regulate people who make decisions about others medical care, housing, or legal decisions. He reminded the members of an incident that happened many years ago where a private guardian went bankrupt. He commented that the office is still dealing with the consequences of that event. MR. FINK said he believes it is important to ensure the integrity of this industry with the public and the courts. He explained the OPA is currently the guardian of last resort. When looking for a guardian the family is considered first and then private organizations are suppose to be considered before going to OPA. However, increasingly the courts do not have any level of confidence in the private guardians out there so OPA is being appointed more and more. Mr. Fink said he would like to encourage the development of more private professional guardians and conservators. It would be better for private professionals to cover that void than government agencies, he added. He said he does not believe that there will be an industry developed with the level of confidence needed in the private sector until there are state regulations in place. Number 1188 REPRESENTATIVE WOLF asked Mr. Fink if he, any member of his family, or a personal friend are guardians. MR. FINK replied that there a number of public guardians in the agency. He commented that Jim Parker, Supervisor, Public Guardians Section, of OPA, and Steve Young, lead public guardian, are sitting in on this meeting. Mr. Fink added that he is also acquainted with "B" Jarvi in Fairbanks who is a private guardian. REPRESENTATIVE WOLF asked if these individuals have gone through the process and have answered the questions necessary to be a guardian for a vulnerable adult. MR. FINK commented that Sharon Wells was instrumental in crafting the legislation. He said OPA's public guardians, including Steve Young and Jim Parker worked on the bill also. The Private Guardian Services Corporation (PGSC) where "B" Jarvi is associated has been a member of ASAGA, but recently, he said it withdrew from the group. Number 1087 REPRESENTATIVE SEATON referred to page 16, lines 7 through 11 and read the following new language: When appointing a relative or a friend of the  incapacitated person as the guardian of an  incapacitated person, the court shall require that the  proposed guardian complete one hour of manadatory  education on the basics of a guardianship before the  appointment or within 30 days after the appointment. REPRESENTATIVE SEATON asked if the one-hour course exists now or is a requirement that will be formulated after the passage of this legislation. Number 1036 MR. FINK responded that the OPA currently provides training to families on how to provide guardianship services. That training is made available to communities and there are a number of people who offer classes. He added that OPA also has books, videos, and written material which has been put in public libraries. He added that currently OPA has distributed material to the courthouse as well. In summary this is not a class that needs to be created, the material is already available, Mr. Fink said. Number 1011 REPRESENTATIVE KAPSNER asked if any faith-based groups are doing this kind of work. MR. FINK replied not to his knowledge. REPRESENTATIVE KAPSNER asked if guardian ad litems for adults with disabilities is pretty much the same as guardian ad litems for children in need of aid cases (CINA). MR. FINK responded that the two are different. The guardian ad litems in a child's case represents the best interest of the child. When the problems are resolved, the guardian ad litem is no longer involved. When there is an adult with a public or private guardian typically most disabled adults have life-long disabilities and the guardian would be a long-term guardian and would be looking out for the best interest of the client. REPRESENTATIVE KAPSNER commented that in CINA cases the guardian ad litems are appointed, and asked if it works the same way with guardians. MR. FINK replied there are two different processes. In CINA cases typically the state will removed a child from the home, and start the court process. However, with guardianship case a petitioner could be a family member, a friend, or a co-worker. It still requires going to court, but there are different laws that apply, he said. Number 0850 REPRESENTATIVE KAPSNER referred to Section 7 in the sectional analysis where it says: Section 7. Deletes an option for a guardian to request that a visitor be appointed to prepare and submit a report. Requires a court to appoint a visitor every three years to file a report reviewing the guardianship. REPRESENTATIVE KAPSNER commented that she is unfamiliar with the terminology and asked what the term "visitor" means in this case. Number 0850 MS. WELLS replied that the current language indicates that a visitor would be appointed to do a report. The intent of the statute is that a visitor would be appointed to do a report reviewing guardianship every three years. The guardian has to do a report every year, and then every three years a visitor has to do a report for the courts. This is just clarifying language, she commented. REPRESENTATIVE KAPSNER reiterated that she does not know what "visitor" means in this context. MS. WELLS responded that in this bill a visitor is an investigator. The visitor provides notice to the person and talks to the petitioner, the person, the doctor, and relatives. The visitor provides a report to the court prior to a guardian being appointed. Then every three years the visitor provides a review of the guardianship to the court. This language just clarifies that a review is done every three years, not every year, she said. Number 0750 JIM PARKER, Attorney, Public Guardian Section, Office of Public Advocacy, testified on HB 427. He told the members that the Office of Public Advocacy is the agency of last resort. It provides guardianship services to disabled adults who do not have family or friends available to serve. When a private organization went bankrupt a few years ago it left a lot of people in bad shape, he said. It is important that it does not happen again. He said he believes that HB 427 will not make it too onerous or difficult for those who are willing to serve, Mr. Parker commented. There needs to be a good balance that will protect vulnerable Alaskans. Number 0636 "B" JARVI, Professional Guardian, Professional Guardian Services Corporation, testified on HB 427. She told the members that private professional guardians are not notified that cases are available from the court visitor, the court itself, or the OPA contract attorney. Ms. Jarvi said she has been told that it is the decision of the head court visitor to omit notifying professional guardians of cases available. Ms. Jarvi told the members that since she is not in court it is a bit hard for the courts to determine whether the services provided are trustworthy or not. MS. JARVI said she has been told that the latest data reflects that professional private guardians only have ten percent of the cases, which means the OGA who regulates the private guardian industry is also the main competitor. She told the members that when she does hear of a case and goes into court she is confronted by the OPA contract attorney who is paid by the hour by the OPA, a court visitor who is paid by the OPA, and members of the staff of the OPA fighting for the case. She told the members there is a stacked deck against professional private guardians. MS. JARVI testified that she has no problem with certification of professional or private guardians and believes it to be a good idea for everyone. However, she said she believes that the guardians in the state OPA should also meet the same criteria and court visitors should also have standards imposed upon them with respect to professional liability. She added that there should also be background checks required of OPA staff, court visitors, and contractors. Number 0399 MS. JARVI explained that OPA is currently setting fees for her business at $40 per hour, as opposed to what it actually costs to provide this service. She explained that she cannot compete at that rate and still cover the overhead costs. Ms. Jarvi reiterated that she is glad to meet any standards and criteria provided that there is a level playing field and the same criteria applies to everyone else. She explained that there is a lot of conflict between the private guardians and OPA because it has the option of regulating the private guardians. Someone has to regulate the industry, but by far the large number of complaints are against OPA, not the private guardians, because no one is regulating OPA, she pointed out. Ms. Jarvi commented that she believes Alaska statute provides very good protection. She reiterated the unfairness of the agency regulating and reviewing its competition. MS. JARVI stated that this bill is a self-serving bill to increase staffing and the role of OPA. Under statute OPA is required to look for alternate guardians and conservators. This is not happening, Ms. Jarvi told the members. MS. JARVI shared an experience where she had a respondent nominate her as guardian, go to court, only to have the OPA attorney steer the case to OPA. Even though he is suppose to represent the respondent, he also is the guardian ad litem and projects his wishes as if it were the respondents, she said. TAPE 04-27, SIDE A  Number 0038 MS. JARVI emphasized the importance of having a level playing field. She urged the members to ensure that the OPA does not compete with the private sector. The system needs to be fixed, she said. Number 0107 CHAIR WILSON announced that HB 427 would be held in committee.