HB 155-COURT SYSTEM PROVIDE VISITORS & EXPERTS  2:08:15 PM CHAIR HOLLAND reconvened the meeting and announced the consideration of HOUSE BILL NO. 155 "An Act relating to court- appointed visitors and experts; relating to the powers and duties of the office of public advocacy; relating to the powers and duties of the Alaska Court System; and providing for an effective date." [This is the first hearing on HB 155.] 2:08:47 PM REPRESENTATIVE CHRIS TUCK, Alaska State Legislature, Juneau, Alaska, sponsor of HB 155, stated that this bill was a collaborative effort to fix a flaw in the Court Visitor Program [also known as court visitors]. It would transfer the office from the Office of Public Advocacy (OPA) in the executive branch to the Alaska Court System in the judicial branch. Currently, court visitors make recommendations on guardianships and conservatorships. He paraphrased the sponsor statement. [Original punctuation provided]: The Court Visitor Program was created to act as an investigative arm of the Alaska Court System in certain protective probate proceedings. Court visitors conduct independent investigations into whether guardianships or conservatorships are necessary. They also review each existing guardianship and conservatorship at least once every three years. Additionally, court visitors participate in psychotropic medication proceedings during involuntary commitments to investigate whether the patient can give or withhold informed consent. Since 1984, the court visitor program has been administered by the Office of Public Advocacy. Unfortunately, there is no legislative history that clarifies why this judicial branch program was placed under the direction of an executive branch office. The only inference that can be made is that anything having to do with "guardianships" was placed with OPA because the office provides public guardians and attorneys for these proceedings. As the court visitor program has continued to grow, it has become increasingly unwieldy because OPA cannot effectively supervise independent contractors who act as "the eyes and ears" of the court. There is also duplicity of services between the executive and judicial branches of government because the court system independently contracts with and directly pays for court visitors in conservatorship proceedings. OPA is only responsible for providing court visitors in guardianship proceedings. The differences between how OPA and the Court System handle these proceedings have caused frustration among the court visitors who work both types of cases. Both the Alaska Court System and OPA agree that transferring the program to the court system is long overdue and would make the program more efficient. The transfer would allow the Court System to put in place standards for reports and who it chooses to use as a court visitor. 2:12:09 PM MICHAEL MASON, Staff, Representative Chris Tuck, Alaska State Legislature, Juneau, Alaska, on behalf of the sponsor, presented the sectional analysis for HB 155. Section 1 Repeals and reenacts AS 13.26.226 (d) to read: The Alaska Court System shall provide visitors and experts in guardianship proceedings under AS 13.26.291. The Alaska Court System may contract for services of court-appointed visitors and experts. Section 2 Amends AS 13.26.291 (a) to stipulate that the Alaska Court System shall bear the costs of the visitors and experts appointed under AS 13.26.226 (c). Section 3 Amends AS 44.21.410 (a) to remove paragraph 2 and renumber the remaining paragraph. 2:13:09 PM Section 4 Amends AS.21.420 (c) to remove language allowing the Commissioner of Administration to contract for services for court visitors and experts to perform the duties set out in AS 44.21.410. Section 5 Amends AS 44.21.440 (b) to remove a reference to court visitors from language prohibiting the Office of Public Advocacy from using improper pressure to influence the professional judgment of a person paid by the office. Section 6 Amends AS.30.839 (d) to remove language allowing the court to direct the Office of Public Advocacy to provide a court visitor to investigate whether a patient can give or withhold informed consent in psychotropic medication proceedings during involuntary commitments. 2:13:58 PM Section 7 Amends 47.30.839 to add a new subsection to read: (j) The Alaska Court System shall provide visitors in proceedings under this section. The Alaska Court System may contract for services of court- appointed visitors. Section 8 Amends the uncodified law of the State of Alaska to add transition language stipulating that the act applies to guardianship proceedings under AS 13.26.291 and proceedings under AS.30.839 commenced on or after the effective date of the act. The section further amends the uncodified law of the State of Alaska to ensure that the Office of Public Advocacy shall provide visitors and experts in guardianship proceedings and visitors in proceedings under AS 47.30.839 that were commenced before the effective date of the act. Section 9 Provides an effective date of July 1, 2021. 2:15:11 PM CHAIR HOLLAND turned to invited testimony on HB 155. 2:15:41 PM DOUG WOOLIVER, Deputy Admin Director, Office of the Administrative Director, Alaska Court System, Anchorage, Alaska, (via teleconference), stated that the Alaska Court System worked with the Office of Public Advocacy (OPA) on the bill. The court system agrees with the proposal in HB 155. For some odd reason, the Court Visitor Program was housed in OPA. As the numbers of people who need assistance due to old age will continue to increase, HB 155 makes sense. This bill will transfer the Court Visitor Program from OPA to the Alaska Court System. He characterized HB 155 as a good clean-up bill. He recalled that this transfer has been discussed for many years, as far back as then-Governor Frank Murkowski's administration. The court system, OPA, and court visitors support this change. It is better for people who work for the Alaska Court System but are housed in OPA to be under the courts. 2:18:28 PM JAMES STINSON, Director, Office of Public Advocacy, Department of Administration, Anchorage, Alaska, (via Teams), echoed Mr. Wooliver's testimony. He was unsure of the reason this function was placed the Office of Public Advocacy (OPA) in the first place, but he surmised that it may have been because it dealt with guardianships. However, the court visitors act as neutral observers. One legislative audit recommended the program should be housed within the court system because it creates the perception that OPA conducts the work and makes all the recommendations. In doing so, the court system would have more control over these important proceedings. The court system will set standards of practice and requirements for court visitor reports, which are especially important since these proceedings substantially restrict a person's financial liberty or impose a full guardianship. He offered his view that this function is not something that OPA can manage well, but the court system can. He emphasized that the state must address the court visitor function since Alaska's aging demographic will lead to more guardianship proceedings. If the program remains in OPA, the agency will need to request more resources. He characterized the bill as a win-win. 2:22:56 PM SENATOR MYERS said he noticed the fiscal impact was $100,000 in additional funding for the court system to take over the program. MR. MASON responded that OPA and the court system worked together on the transition plan. He deferred to Mr. Wooliver. MR. WOOLIVER answered that if the court visitor program remains with OPA, that agency would also need an additional person to manage it because the number of guardianship and conservatorships has grown and will continue to grow. 2:24:59 PM SENATOR HUGHES acknowledged the efficiencies that this transfer would provide. She wondered if there was a check and balance between the branches. She heard testimony from agencies that this transfer creates efficiencies, and the court system and OPA support the proposed change. She asked if AARP and the Governor's Commission on Aging support HB 155 since the court visitors serve Alaskans. 2:26:21 PM MR. STINSON responded that anecdotally the perception is that OPA has too much influence over the proceedings because the court documents reflect that the Office of Public Advocacy (OPA) provides the services. The only complaints he has received questioned the control OPA might have in the process. The last legislative audit highlighted that perception. OPA provides the respondent's counsel so that the attorney might be arguing the case for someone who does not want a conservatorship or guardianship. The attorney might say that the party does not warrant guardianship. Still, OPA also funds the court visitor, whose recommendation might state that guardianship was necessary. He noted that the perception of a conflict is in the status quo. Moving the court visitor function to the court system helps identify that a court visitor is a neutral person. SENATOR HUGHES asked to hear support from individual Alaskans or groups supporting Alaskans for this change. While she is not opposed to HB 155, she would like that input. 2:28:34 PM MR. MASON offered to reach out to the Alaska Commission on Aging. He reported that he did not receive any negative feedback on the bill. He related that the parties are all in agreement with this change. 2:29:11 PM SENATOR SHOWER asked if the legislative oversight of the court visitors would be budgetary. REPRESENTATIVE TUCK answered yes. SENATOR SHOWER asked if the court system should house the guardianship and conservatorship functions or if one function should stay with OPA. MR. STINSON answered that the work is essentially the same. He explained that someone who needs a conservatorship might need guardianship later. The same court visitors will handle the cases. 2:30:57 PM SENATOR SHOWER referred to page 3, Section 5, which read: (b)The office of public advocacy may not use improper pressure to influence the professional judgment of a person who is paid by the office of public advocacy to act as an attorney or [,] a guardian ad litem [, OR A VISITOR] for a guardianship or conservatorship established under AS 13.26. SENATOR SHOWER acknowledged that this language might be existing law, but it is still good to review it. He wondered if any penalties were associated with improper pressure to influence professional judgment. MR. STINSON responded that he was unsure. He stated that this provision would also apply to not exerting influence on guardian ad litem or attorneys. In those two instances, it is easier since it is a judicial function. OPA has historically erred on the side of caution. He surmised that Section 5 brings heightened attention with that clause. It is easier to understand the Rules of Conduct for attorneys' duties. OPA provides administration of a court function, so it does not have substantial oversight or involvement in what court visitors do. He said he was unsure of the penalty provisions. 2:32:08 PM SENATOR SHOWER expressed an interest in the penalty provisions. He referred to page 4, Section 7, which read: (j) The Alaska Court System shall provide visitors in proceedings under this section. The Alaska Court System may contract for services of court-appointed visitors. SENATOR SHOWER wondered if the court system decided it would not contract for services, would the state pay more to process additional cases. REPRESENTATIVE TUCK responded that this would be a year-to-year budget item based on need and demand. He characterized it as a "gray avalanche" because the aging process translates to people needing more services. He referred to the fiscal note. Even without this bill, the state will provide court visitor services. The court system and OPA currently negotiate this function. He offered to research the penalty provisions but did not believe any penalties applied. REPRESENTATIVE TUCK reminded members that the Office of Public Advocacy (OPA) is by nature, an advocacy group. These statutory provisions establish limitations for the advocacy group by outlining what they shall and shall not do. However, it makes more sense to house court visitors in the court system since they must be neutral. 2:34:08 PM SENATOR SHOWER expressed concern that as the need for court visitors grows, it will impact the state since it would require additional positions. 2:34:30 PM SENATOR KIEHL asked if the court visitors and experts remain throughout the conservatorship, guardianship, or time in the medical system or if the court visitors investigate and make single reports to the court. 2:35:01 PM MR. MASON deferred to Mr. Stinson. 2:35:13 PM MR. STINSON answered that there would be an initial proceeding followed by a review every three years to determine that the substantial limitation of liberty was still appropriate. He stated that a subsequent investigation and report would be required every three years. Thus, three-year reviews will spike as the number of total guardianships increases. He explained that guardianships tend to remain for a person's natural life. For example, a severely disabled juvenile could become an adult who might live to be 80-years-old and require full guardianship. These cases tend to be lengthy, unlike civil or criminal cases that may be resolved in one or two years when the verdict is issued. 2:36:20 PM SENATOR KIEHL referred to the transition section. He asked whether the three-year reviews were new proceedings or the same guardianship proceeding throughout the person's natural life. MR. STINSON answered that it is the same in that it refers to the same person, and if at all possible, the same court visitor would conduct the three-year review. 2:37:01 PM SENATOR KIEHL asked for clarity whether the three-year review remains the same proceeding; if not, the two entities would be running the program for decades. He estimated that if the three- year reviews are new proceedings, the transition period would be limited to three years in which both agencies run a portion of the program. 2:37:29 PM MR. STINSON explained the transition provision. OPA and the court system have agreed that OPA would pay for the services provided prior to the effective date. The rest of the costs would be passed on to the court system. He clarified that there are no in-house position control numbers (PCNs) that provide these services. The court visitors are all independent contractors. The funding that is transferred to the court system from OPA pays for independent contractors. He explained that the transition would work such that OPA would stop paying on the effective date of the bill, and the court system would begin paying for the services. He stated that OPA does not administer the proceedings since independent court visitors provide the investigation and report to the court. The transition refers to the date for the transfer of responsibility. SENATOR KIEHL offered to follow up with the sponsor to ensure that the transition language in Section 8 matches with the intent. 2:38:50 PM