Legislature(2015 - 2016)

2015-05-16 House Journal

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2015-05-16                     House Journal                      Page 1185
HB 5                                                                                                                          
The following letter was dated and received May 14, 2015, at                                                                    
5:06 p.m.:                                                                                                                      

2015-05-16                     House Journal                      Page 1186
"Dear Speaker Chenault:                                                                                                         
Under the authority vested in me by Article II, Section 15, of the                                                              
Alaska Constitution, I have vetoed the following bill:                                                                          
    SENATE CS FOR HOUSE BILL NO. 5(JUD)                                                                                         
    "An Act relating to the persons who may be appointed guardians                                                              
     of incapacitated persons or conservators of protected persons."                                                           
This bill would remove restrictions in current law upon who the court                                                           
may appoint as a guardian or conservator for an incapacitated or                                                                
protected person, but does so without the necessary safeguards to                                                               
ensure those persons appointed will act in the best interests of the                                                            
incapacitated or protected person.                                                                                              
Under current law, the court may appoint a person as a guardian or                                                              
conservator, despite a potential conflict of interest, only if the person                                                       
is the spouse, adult child, parent, or sibling of the incapacitated or                                                          
protected person and the court finds that the potential conflict of                                                             
interest is insubstantial and that the appointment would clearly be in                                                          
the best interest of the incapacitated or protected person. The most                                                            
common type of conflict of interest is when the person to be appointed                                                          
as a guardian or conservator is also serving as a service provider to the                                                       
incapacitated or protected person. The bill would remove the                                                                    
requirement that a person with a potential conflict of interest be a                                                            
family member. In short anyone - related or not - to the person in                                                              
need of protection could have legal control over the vulnerable                                                                 
person's legal affairs and finances. Although the bill would still                                                              
require the court to make written finding as to the nature and scope of                                                         
the conflict of interest, that requirement is not enough to ensure that                                                         
guardians and conservators who are not family members will act in the                                                           
best interest of the protected person. More protections, such as                                                                
requiring a background check for example, would be needed in order                                                              
for me to be assured that vulnerable Alaskans will be protected.                                                                
As originally proposed by the sponsor, the bill would have addressed                                                            
conservatorships only, and would have required that the person with a                                                           
potential conflict of interest could be appointed conservator if that                                                           
person was an adult related by blood, marriage, or adoption to the                                                              
protected person (instead of being the spouse, adult child, parent, or                                                          

2015-05-16                     House Journal                      Page 1187
sibling). But, during the legislative process, the bill was amended so to                                                       
allow an unrelated person with a potential conflict of interest to be                                                           
appointed as a guardian or conservator. This broadening of the pool of                                                          
persons who could serve as a guardian or conservator was not                                                                    
accompanied by needed safeguards to ensure only reliable and                                                                    
trustworthy persons would be appointed.                                                                                         
My objections are based on the sad reality that opportunities for abuse                                                         
and fraud exist within the framework of guardianships and                                                                       
conservatorships. By making it easier for service providers to be                                                               
appointed as guardians and conservators, the bill raises the risk that                                                          
seniors, and those very dependent on others, could be at risk of                                                                
financial abuse and exploitation by those tasked with their care. I am                                                          
particularly concerned about our elder citizens and the possibility this                                                        
bill could make them more vulnerable to elder financial abuse.                                                                  
Unfortunately, the incidence of elder financial abuse is significant, and                                                       
the consequences are devastating. Numerous news reports and studies                                                             
highlight that incidences of financial loss due to financial exploitation                                                       
of elders is a growing problem. In addition to the mental distress                                                              
caused to victims, the financial toll on victims, their families, and the                                                       
agencies that serve vulnerable adults is enormous. An elderly person                                                            
who is the victim of financial abuse may be more likely to require                                                              
state services, such as adult protective services and medical assistance.                                                       
Since the scope of the problem of financial abuse is enormous and                                                               
complex, we must proceed very cautiously and ensure that maximum                                                                
protections exist in State law to thwart the problems of financial and                                                          
other abuse against elders and other vulnerable persons by those very                                                           
persons appointed to protect them. This bill lacks the comprehensive                                                            
and cautious approach required.                                                                                                 
For these reasons, I have vetoed SCS HB 5 (JUD).                                                                                
Bill Walker