HB 5-CONSERVATOR OF PROTECTED PERSONS  1:06:59 PM CHAIR LEDOUX announced that the first order of business would be HOUSE BILL NO. 5 "An Act relating to the persons who may be appointed conservators of a protected person." 1:07:27 PM CECILE ELLIOTT, Staff, Representative Mike Hawker, Alaska State Legislature, stated that HB 5 expands the definition of conservator under AS 13.26.210. She explained that under certain statutes certain criteria prohibits a person from being appointed conservator unless they are a relative. However, she noted, the list of relatives is specific to spouse, adult child, parent, or sibling, thereby excluding other relatives. House Bill 5 expands the definition to an adult related by blood, marriage or adoption, allowing for greater control in making decisions in the best interests of their family. She advised this statutory limitation was pointed out by Darin Colbry, whose desire is to be conservator for his daughter-in-law except was thwarted by current statute. She offered that the judicial process is not changed by the legislation in appointing a conservator, or weakens the court's authority to act in the best interest of the protected person. She conveyed the bill is supported by the Alaska Commission on Aging. 1:10:42 PM REPRESENTATIVE CLAMAN surmised that the proposed bill is to remove the language "the spouse, adult child, parent, or sibling" and replace it with "an adult related by blood, marriage, or adoption." He said that within the definition section there is no definition of those three terms, but that he believes the four terms being deleted are defined. He questioned whether there is a definition being incorporated, and if so, where. MS. ELLIOTT deferred to the drafter, Terry Bannister. 1:11:33 PM TERRY BANNISTER, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, responded that she does not believe there are definitions of the new terms in the legislation at this time. 1:12:58 PM REPRESENTATIVE CLAMAN noted that in todays' legal environment, the definition of marriage is receiving a tremendous amount of litigation, and he asked why Ms. Bannister elected to use the word "marriage," in that it is an undefined term. He surmised the goal for this legislation is to expand the scope of people recognized as reasonable people to be considered a conservator. MS. BANNISTER voiced that at least two people [in Legislative Legal and Research Services] worked on the [drafting of HB 5]. She advised she does not recall choosing those terms, however, there is an interpretation requirement. She offered that she would tend to interpret "by marriage" as someone who is related through the person who is married. REPRESENTATIVE CLAMAN pointed out that "adult related by blood" appears to be a term with the potential for ambiguity and questioned if thought was given for more clarity for that definition. MS. BANNISTER reiterated that she did not prepare that particular item and "it could certainly be clarified if you wanted to clarify it. We always recommend clarifying anything that is ambiguous." 1:14:42 PM REPRESENTATIVE GRUENBERG noted the law was initially enacted in 1972, and amended a number of times. He questioned whether, when it was enacted, it was part of the Uniform Probate Code. MS. BANNISTER advised she assumed so but she would have to double check. 1:15:30 PM REPRESENTATIVE GRUENBERG questioned if anyone had reviewed the Annotated Version of the Uniform Probate Code to determine the interpretation of other courts with this subsection. MS. BANNISTER advised she has not reviewed it. MS. ELLIOTT remarked she is aware it is from 1972, and was proposed in 1994, but believes the recommendations of the Uniform Probate Code were not adopted. However, she stated, she could not expounded on Representative Gruenberg's question. 1:16:19 PM REPRESENTATIVE GRUENBERG advised he would like an answer to this question as he does not know why the subsection was drafted the way it was drafted. He posited there is no reason to limit subsection (c) to a spouse, adult child, parent or sibling. The only issue should be that the court determines the potential conflict of interest in (b) is not substantial and it should not make a difference who the person is as long as there is no conflict of interest. He suggested cutting the language and allowing a sister-in-law, brother-in-law, cousin-in-law, as long as there is no conflict of interest. 1:17:58 PM MS. ELLIOTT advised the sponsor defers to the will of the committee on that. 1:18:10 PM REPRESENTATIVE KELLER referred to the indeterminate fiscal note and noted it is puzzling and requested the rationale because it reads: "However, expanding the number of individuals exempt from prohibition from appointment as conservator may increase the number of vulnerable adults who become victims of financial abuse and exploitation." He questioned how the call could be made between the numbers of extra options for vulnerability against that which may be avoided because the court has a broader choice in selection. The Department of Health & Social Services (HESS) will likely have input if the language is removed as has been suggested. He advised he intends to make a motion, as the bill now stands, to eliminate the indeterminate fiscal note and go back to a zero fiscal note. 1:20:07 PM DEB ETHRIDGE, Deputy Director, Central Office, Division of Senior and Disabilities Service, Department of Health & Social Services, answered that the Division of Senior and Disabilities Services submitted an indeterminate fiscal note because it anticipates an increased pool and opportunity for more conservators, and it also realizes there is a potential for more conflicts of interest. Essentially, the bill expands the number of people with a potential conflict of interest, and because a person is a conservatee they are automatically a vulnerable adult. She pointed out that the division could see people with have a conflict of interest, or a provider, be the conservator, thereby causing an increase in numbers of maltreatment reports. She stipulated she was not saying there would be an increase in maltreatment, just numbers of reports. 1:21:15 PM REPRESENTATIVE KELLER questioned whether that would be an extra burden on the court in that the court would have a broader spectrum of people they could pick from, and presumably in that broader spectrum there could be both sides of the issue. There may be the option of appointing someone more responsible or honest with the broader spectrum of choice, he stated. 1:21:39 PM CHAIR LEDOUX asked whether one of the categories of spouse, adult child, parents, or sibling, had been eliminated would there have been a negative fiscal note. 1:21:54 PM MS. ELLIOTT answered that the division cannot anticipate the numbers of maltreatment reports that will come in and cannot put an estimate on that issue. She related that the division does know with the conflict of interest there is more potential or less potential. 1:22:13 PM CHAIR LEDOUX reiterated her question of whether the division would have given the committee a negative fiscal note. 1:22:18 PM MS. ELLIOTT responded that she can't answer that question. 1:22:22 PM CHAIR LEDOUX advised she is still very uncomfortable with this fiscal note. 1:22:55 PM REPRESENTATIVE CLAMAN commented that he shares concerns regarding the fiscal note and assessed the legislation would mean an in-law could be appointed as a conservator, whereas today an in-law could not be appointed. He asked whether there is evidence that in-laws are more likely to take advantage of seniors than people related by blood. MS. ELLIOTT responded that an in-law could become a conservator barring a condition or conflict of interest. She remarked that within the new language there is an exception so there could be a conflict of interest. She explained the division knows that within the percentage of financial exploitation allegations made to Adult Protection, approximately 45-47 percent involve family members as the alleged perpetrator. REPRESENTATIVE CLAMAN asked whether the 45-47 percent of family members investigated suggests the legislation should be looking outside the family for more conservators than inside the family. MS. ELLIOTT responded the division does not have an opinion as to whether a family member would or would not perpetrate financial exploitation. She remarked that her prior response was regarding general financial exploitation reports, not by a conservator, that almost half are by family members. 1:25:33 PM REPRESENTATIVE CLAMAN assessed that being a family member does not prevent one from being accused of exploiting a senior. MS. ELLIOTT responded "No, it does not." 1:26:29 PM REPRESENTATIVE GRUENBERG [noted that AS 13.26.210(b) read]: (b) The court may not appoint a person to be a conservator of a protected person if the person (1) provides, or is likely to provide during the conservatorship, substantial services to the protected person in a professional or business capacity, other than in the capacity of conservator; (2) is or is likely to become, during the conservatorship, a creditor of the protected person, other than in the capacity of conservator; (3) is likely to have, during the conservatorship, interests that may conflict with those of the protected person; or (4) is employed by a person who would be disqualified under (1) - (3) of this subsection. REPRESENTATIVE GRUENBERG determined that (3) is what the division is getting into as the others are subsections of examples of people who may have conflicts of interest. He advised that subsection [4] is whether the person is an employee. He surmised the simplest way of cutting the Gordian Knot is to say the court may not appoint a person who is likely to have, during the conservatorship, interests that may conflict with the protected person, or be employed by "somebody like that." 1:28:05 PM DARIN COLBRY advised that his father is his conservator, and his wife's conservator is a family friend. He said he preferred his father is assigned as conservator for both of them. He explained that they live with his parents, his parents are aware of their needs and finances, and he and his wife's finances could be together rather than separate. Previously, the court deemed that his father could not be his wife's conservator because his wife lives with his parents, and that his parents are basically rental property owners because they are renting to Mr. Colbry and his wife. CHAIR LEDOUX closed public testimony after ascertaining no one further wanted to testify. 1:30:05 PM REPRESENTATIVE GRUENBERG remarked he would like to take a brief period of time to check with the Uniform Commissioners to understand why [the statute] was drafted in this manner as it appears cumbersome. 1:30:45 PM CHAIR LEDOUX advised HB 5 would be held over. She requested Ms. Elliott to work with Representative Gruenberg. CHAIR LEDOUX suggested to Ms. Ethridge that the division reconsider its fiscal note. 1:31:41 PM The committee took an at-ease from 1:31 to 1:34 p.m.