HB 150 - PROTECTION OF VULNERABLE ADULTS/MINORS 1:56:01 PM CHAIR GATTO announced that the final 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." CHAIR GATTO noted that the subcommittee on HB 150 has produced a final report [detailing the differences between the original bill and a proposed committee substitute included in members' packets]. 1:56:32 PM REPRESENTATIVE THOMPSON moved to adopt the proposed committee substitute (CS) for HB 150, Version 27-GH1722\I, Mischel, 3/17/11, as the working document. REPRESENTATIVE HOLMES objected for the purpose of discussion. 1:58:15 PM SARAH MUNSON, Staff, Representative Carl Gatto, Alaska State Legislature, referring to the aforementioned final report, explained that Version I contains a new Section 1 and a new Section 2 that propose to change the phrase, "an elderly person or disabled adult" to the phrase, "a vulnerable adult" in AS 08.29.200(b)(2) and AS 08.63.200(b)(2) respectively; these new sections were added at the request of the Department of Law (DOL) and the revisor of statutes because the phrase, "a vulnerable adult" is what's now being used by the DOL to mean someone [18 years of age or older] who meets certain vulnerability criteria. Under Version I, proposed AS 13.26.207(a) now contains the words, "and other persons as ordered by the court" in the second to last sentence after the words, "respondent's attorney"; this change to Alaska's temporary conservatorship statutes would allow the court to notify those who would most need to know about the conservatorship, such as various financial institutions. MS. MUNSON explained that Proposed AS 13.26.209(a) underwent two changes: first, it now contains the additional sentence, "A petition filed on behalf of a protected person by another person must be accompanied by proof of service of the petition on the protected person or the person's attorney unless service would cause an immediate threat of harm to the best interests of the protected person and the petition includes a written explanation of the harm."; and, second, the last sentence now reads, "The court shall cause a copy of the protective order, any related orders, and a scheduling order, if any, to be served on the respondent and the protected person." These changes regarding notification address a concern raised in the subcommittee meeting that an ex parte protective order could be used by someone to victimize a vulnerable adult; under these two changes, a vulnerable adult would be notified of the ex parte protective order unless such notification would be harmful to him/her. REPRESENTATIVE GRUENBERG, in response to a question regarding Sections 1 and 2 of Version I, noted that the term, "vulnerable adult" is defined in AS 47.24.900 as: (16) "vulnerable adult" means a person 18 years of age or older who, because of physical or mental impairment, is unable to meet the person's own needs or to seek help without assistance. MS. MUNSON added that Section 43 of Version I is proposing to amend that definition thus: (16) "vulnerable adult" means a person 18 years of age or older who, because of incapacity, mental illness,  mental deficiency, physical illness or disability,  advanced age, chronic use of drugs, chronic  intoxication, fraud, confinement, or disappearance [PHYSICAL OR MENTAL IMPAIRMAENT], is unable to meet the person's own needs or to seek help without assistance. 2:06:07 PM MS. MUNSON then explained that proposed AS 13.26.209(d) now stipulates that notice shall additionally be provided to the protected person; this is a conforming change regarding notification of a hearing to extend an ex parte protective order. In Version I's proposed AS 13.26.209(f), the first sentence now reads, "A third party that has received actual or legal notice of a protective order issued under this section shall comply with the order."; the sentence that began with the words, "A third person" now begins with the words, "A third party"; and there is now an additional sentence that says, "As used in this section, 'actual or legal notice' means delivery by mail or facsimile at the most recently known place of residence or business of the third party or registering with the Department of Public Safety." These changes to proposed AS 13.26.209(f) were suggested by the administration, and reflect how notice would be provided to third parties such as banks. MS. MUNSON explained that what was formerly proposed AS 13.26.325 - pertaining to the definition of the word, "fraud" - was changed in Version I to proposed AS 13.26.324; this change reflects the fact that a section 325 has already been used in AS 13.26. Furthermore, proposed AS 13.26.324(2) now more accurately defines the word, "fraud" in part as, "offenses against property under AS 11.46.100 - 11.46.740"; and a conforming change to a similar definition in AS 44.21.415(g) is being proposed via a new Section 14. Version I's proposed AS 18.65.530(a)(2) fixes a drafting error - noticed by Legislative Legal and Research Services - via use of the word, "or" instead of the word, "and". Proposed AS 47.24.010(e) now retains the existing phrase, "at the earliest opportunity"; this change ensures that law enforcement officers won't unnecessarily delay notification. 2:13:04 PM MS. MUNSON referred to the new subsections being added to AS 47.24.015, and explained that in Version I, proposed subsection (h) has been rewritten such that in order to conduct an investigation, the department must seek a subpoena - this change addresses a concern that as originally written, subsection (h) raised Fourth Amendment issues; that when subsection (h) was rewritten, the language in the original bill's proposed subsection (j) became obsolete, and so Version I no longer contains that language and the remainder of AS 47.24.015's proposed subsections have been relettered accordingly; that that deletion has also resulted [in the deletion of language in the bill reflecting an indirect court rule change to Rule 65 of the Alaska Rules of Civil Procedure]; and that Version I's proposed subsection (m) now uses the phrase, "maintained by any person" rather than unnecessarily providing for a specific list of people/entities that maintain financial records, since if the department wants access to financial records, it doesn't matter who is holding them. MS. MUNSON explained that to reflect the statutory creation of [temporary conservatorships via proposed AS 13.26.207], Version I's proposed AS 47.24.016(a) now also references conservators; this conforming change was also made to proposed AS 47.24.017(a) [and to the first sentence in proposed AS 47.24.050(b)]. Furthermore, proposed AS 47.24.016(a)(1) now also references legal separation proceedings, thereby precluding a spouse who has initiated such a proceeding from being selected by the department as a vulnerable adult's [surrogate decision maker]. Proposed AS 47.24.19(c), in two places, now references "person" instead of providing for a list of specific people against whom the department may seek an injunction preventing interference in the provision of protective services; this change reflects the fact that anyone who is interfering in a vulnerable adult's receiving of protective services should be stopped. REPRESENTATIVE GRUENBERG, in response to a question, explained that the term, "attorney-in-fact" as used in AS 47.24 refers to a person operating under power of attorney or some other delegation of authority. MS. MUNSON noted that the aforementioned conforming change regarding conservators should also be made to the second sentence in proposed AS 47.24.050(b) via an amendment that would add the term, "conservator," to page 16, line 14, after the term, "guardian,". 2:19:30 PM MS. MUNSON went on to explain that proposed AS 47.24.900(2)(A) - which defines the word, "abuse" in terms of an action taken with a specific culpable mental state - now also includes the culpable mental state of "knowing". Proposed AS 47.24.900(4) now uses the term, "includes", rather than the term, "means", in its definition of the term, "informed decision"; this change ensures that being free from undue influence would be considered a component of, rather than a strict definition of, an informed decision. REPRESENTATIVE LYNN questioned whether the bill - for purposes of ensuring that vulnerable adults are making an informed decision - addresses the issue of interpreters for those not fluent in English. MS. MUNSON offered her understanding that the bill does not specifically address that issue, but ventured that arranging for an interpreter would be part of the protective services that the department provides to a vulnerable adult. She surmised that no one would consider a vulnerable adult to have consented to something that he/she didn't understand. MS. MUNSON went on to explain that proposed AS 47.24.900(7)(B) now also includes the term, "fraud," in its definition of the term, "exploitation", as well as a reference to proposed AS 13.26.324(1) and (2)'s specific definition of the term, "fraud". She noted that in order to avoid using circular logic, proposed AS 13.24.324(3)'s aspect of the term, "fraud" was specifically not included in the definition of that term as it's being used in proposed AS 47.24.900(7)(B) to partly define the term, "exploitation". Proposed 47.24.900(9) - which defines the term "neglect" - now also includes the culpable mental state of "knowing"; and now uses the term, "includes", rather than the term, "means", in its definition of the phrase, "essential care  or services". This latter change addresses the possibility that essential care and essential services aren't only food, clothing, shelter, medical care, and supervision. 2:26:02 PM MS. MUNSON explained that proposed AS 47.24.900(11) - which defines the term, "protective services" - has undergone some formatting and wording changes but not changes to meaning. One example of a wording change is that what is now proposed subparagraph (D) says, "staying financial transactions" instead of, "freezing an account at a financial institution". Proposed AS 47.24.900(15)(D) - which contains an aspect of the definition of the phrase, "unable to consent" - now also includes the concepts of waste or dissipation of income or assets. Proposed AS 47.24.900(18) has been rewritten such that it now defines the term, "fiduciary duty" to mean "the duty of a third party who stands in a position of trust or confidence with another person, including a vulnerable adult, to act with due regard for the benefit and interest of that person"; this definition, she relayed, comes from [a 1969 Alaska Supreme Court case, Paskvan v. Mesich]. MS. MUNSON explained that proposed AS 47.24.900(21) has been rewritten such that it now defines the term, "undue influence" to mean, "the use by a person who stands in a position of trust or confidence of the person's role, relationship, or authority to wrongfully exploit the trust, dependency, or fear of a vulnerable adult to gain control over the decision making of the vulnerable adult, including decision making related to finances, property, residence, and health care". This definition, in addition to partially conforming to language used in other parts of the bill regarding persons who stand in a position of trust or confidence, replaces the concept of "deceptively" with the concept of "wrongfully" in order to avoid using circular logic. REPRESENTATIVE GRUENBERG noted that one could act wrongfully in exerting undue influence coercively, for example, but still not be acting deceptively, [thereby indicating that "wrongfully" is the more inclusive term]. MS. MUNSON went on to explain that Version I's proposed direct court rule change to Rule 12(h) of the Alaska Rules of Criminal Procedure - regarding continuance of trial - now involves the addition of the following language after that rule's existing first sentence: "In deciding whether to grant the motion, the  court shall consider the victim's circumstances and the effect  the delay would have on the victim, particularly a victim of  advanced age or extreme youth. The court shall place its  findings on the record.". Similarly, Version I's proposed direct court rule change to Rule 45(a) of the Alaska Rules of Criminal Procedure - regarding priorities in scheduling criminal cases - now involves the addition of the following sentence after that rule's existing second sentence: "The court shall  consider the circumstances of the victim, particularly a victim  of advanced age or extreme youth, in setting the trial date.". These two direct court rule changes, she indicated, would ensure that the court considers the age of the victim without simply giving preference to a certain group of people over others based on age, and are necessary in order to address the problem of some cases either being delayed or not going to trial at all because a witness or the victim himself/herself has died as a result of his/her advanced age. MS. MUNSON explained that under Version I, Section 47's subsection (c) is now proposing an amendment to uncodified law to reflect the fact that [the last sentence of] Version I's proposed AS 13.26.207(a) would effect an indirect court rule amendment to Rule 77 of the Alaska Rules of Civil Procedure by requiring a hearing within 72 hours of the filing of a petition for the appointment of a temporary conservator. In conclusion, she relayed that in order to ensure that the [Alaska Court System (ACS)] has enough time to create the forms necessitated by the enactment of HB 150, Version I is now proposing an effective date of July 1, 2011, rather than an immediate effective date as proposed in the original bill. REPRESENTATIVE HOLMES removed her objection to the motion to adopt Version I as the working document. There being no further objection, Version I was before the committee. 2:35:45 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to add the word, "conservator," to page 16, line 14, after the word, "guardian,". There being no objection, Amendment 1 was adopted. REPRESENTATIVE GRUENBERG then directed attention to language on page 8, lines 9-10 - existing AS 44.21.415(g)(2) - defining the term, "older Alaskan" to mean a person residing in the state who is 60 years of age or older. Noting that AS 44.21.415 establishes the duties of the state's office of elder fraud and assistance, he questioned whether that statute ought to be amended such that that office could then provide assistance to any person 60 years of age or older who is physically present in Alaska regardless of whether he/she actually resides in Alaska. The committee took an at-ease from 2:39 p.m. to 2:49 p.m. REPRESENTATIVE GRUENBERG, referring to an issue raised earlier by Representative Lynn, asked whether there were any provisions of statute that provide the right of an interpreter to a vulnerable adult not fluent in English. 2:53:08 PM DOUG WOOLIVER, Administrative Attorney, Administrative Staff, Office of the Administrative Director, Alaska Court System (ACS), explained that federal law requires the court to provide interpreters to any non-English-speaking persons involved in a court proceeding. 2:53:54 PM SCOTT STERLING, Supervising Attorney, Elder Fraud and Assistance, Office of Public Advocacy (OPA), Department of Administration (DOA), in response to questions regarding AS 44.21.415 and the term, "residing" as used in its subsection (g)(2)'s definition of "older Alaskan", explained that his office first ascertains whether an elderly person who has been victimized has established actual residency in Alaska, or whether he/she was victimized while just visiting the state. If the latter, then his office still attempts to provide what assistance it can, but doesn't normally engage in full-fledged representation. For example, his office will provide an older visitor who's been victimized with a reference to law enforcement, and will help him/her get immediate assistance from social service agencies if needed. He mentioned that such cases are rare, that it's more common that an Alaska resident who was exploited while living in Alaska then moves out of state, and it's his office's policy to then finish the [advocacy] work begun while the victim was residing in Alaska. He noted, too, that because the statute uses the term, "person" rather than the term, "citizen", his office would provide assistance to an illegal alien residing in Alaska who's been victimized, although to date no such person has sought assistance from his office. MR. STERLING, in response to questions regarding interpreters, explained that when his office gets a client who requires an interpreter, his office attempts to find a pro bono interpreter in order to better communicate with that client, and has done so in two instances that he is aware of. He is unaware, however, of any specific statute, court rule, or constitutional provision that requires an executive branch agency to provide an interpreter to a person seeking services, though under his ethical obligations as an attorney, he added, if he is unable to find a pro bono interpreter, he would seek permission from his superiors to retain one. In response to a further question, he opined that in terms of his office's operations and provision of services under AS 44.21.415, the current system is working pretty well with volunteer interpreters, and relayed should he ever need to actually retain an interpreter, he would do his best to persuade his superiors to allow it. REPRESENTATIVE GRUENBERG indicated a desire to research that issue further. REPRESENTATIVE THOMPSON - referring to the language of proposed AS 13.26.209(f) that read, "As used in this section, 'actual or legal notice' means delivery by mail or facsimile at the most recently known place of residence or business of the third party or registering with the Department of Public Safety." - asked how registering with the Department of Public Safety (DPS) constitutes notifying a third party about the existence of a protective order. 3:04:01 PM KELLY HENRIKSEN, Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law (DOL), surmising that [the third party referred to in that provision is primarily going to be a financial institution], explained that the language regarding registering with the DPS refers to the DPS's registry of protective orders, and that once a protective order is so registered, that in itself is considered to be providing legal notice, since financial institutions already check that registry during the normal course of business. She offered her belief, additionally, that such businesses could simply set up a system of routinely checking that registry every day. REPRESENTATIVE GRUENBERG questioned what the impact would be of removing the language regarding registering a protective order with the DPS. MR. STERLING predicted that it could prove very difficult for a vulnerable adult from a rural area of the state to deliver actual notice to a financial institution that doesn't have a branch in the area. The language providing the alternative of registering a protective order with the DPS would remedy such situations. He acknowledged, though, that under the current language of proposed AS 13.26.209(f), perhaps simply sending a facsimile of the protective order to the financial institution's nearest branch or headquarters would suffice, particularly given that rarely are financial institutions locally owned and operated anymore. He also mentioned that although the financial institutions that his office deals with have uniformly been very cooperative in attempting to stop fraudulent activity, they have relayed that they often feel constrained by provisions of the law that require them to honor even a nominally-valid power of attorney. The hope is that providing for a protective order would protect both the third party and the vulnerable adult from the fraudulent acts of the respondent. [Chair Gatto turned the gavel over to Vice Chair Thompson.] VICE CHAIR THOMPSON questioned whether proposed AS 13.26.209(f) ought to be amended such that the protective order would have to be both delivered by mail or facsimile and registered with the DPS. MR. STERLING surmised that such a change might prove more burdensome on the vulnerable adult - the victim - than would be desirable. Again, providing that a protective order registered with the DPS is legally noticed to a third party would give the victim another option in situations where he/she is unable to deliver actual notice. [Vice Chair Thompson returned the gavel to Chair Gatto.] MS. HENRIKSEN concurred. [After the following motion but before adjournment, members thanked various staff members and department personnel for their subcommittee work on HB 150.] 3:16:58 PM REPRESENTATIVE THOMPSON moved to report the proposed CS for HB 150, Version 27-GH1722\I, Mischel, 3/17/11, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 150(JUD) was reported from the House Judiciary Standing Committee.