Legislature(2015 - 2016)CAPITOL 120

02/11/2015 01:00 PM House JUDICIARY

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Heard & Held
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            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                                                              
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                                                                               
          (2) is or is likely to become, during the                                                                             
          conservatorship, a creditor of the protected                                                                          
          person,   other    than   in   the    capacity   of                                                                   
          (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                                                              
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.                                                                            

Document Name Date/Time Subjects
HB05.pdf HJUD 2/11/2015 1:00:00 PM
HB 5
HB05 Letter of support - AoCA.pdf HJUD 2/11/2015 1:00:00 PM
HB 5
HB05 Fiscal Note.pdf HJUD 2/11/2015 1:00:00 PM
HB 5
HB05 Fiscal Note-Law.pdf HJUD 2/11/2015 1:00:00 PM
HB 5
HB79 Draft Proposed CS ver P.pdf HJUD 2/11/2015 1:00:00 PM
HB 79
HB79 Supporting Documents - Letter McCard.txt HJUD 2/11/2015 1:00:00 PM
HB 79
HB79 Supporting Documents - CRCL Feb-10-2015.pdf HJUD 2/11/2015 1:00:00 PM
HB 79
HB05 Sponsor Statement.pdf HJUD 2/11/2015 1:00:00 PM
HB 5
HB05 Fiscal Note-HSS.pdf HJUD 2/11/2015 1:00:00 PM
HB 5
HB79 SECTIONAL ANALYSIS - ver P.pdf HJUD 2/11/2015 1:00:00 PM
HB 79