Legislature(2015 - 2016)BELTZ 105 (TSBldg)

03/16/2015 01:30 PM Senate JUDICIARY

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            HB   5-CONSERVATOR OF PROTECTED PERSONS                                                                         
1:41:58 PM                                                                                                                    
CHAIR  MCGUIRE  announced the  consideration  of  HB 5.  "An  Act                                                               
relating to  the persons who  may be appointed conservators  of a                                                               
protected person."                                                                                                              
1:42:22 PM                                                                                                                    
REPRESENTATIVE MIKE HAWKER, Alaska  State Legislature, sponsor of                                                               
HB  5, introduced  the  bill speaking  to  the following  sponsor                                                               
     Current  statute outlines  criteria  for who  may be  a                                                                    
     conservator  and  under  what  circumstances  they  may                                                                    
     serve  as  such.  This  responsibility  is  limited  to                                                                    
     certain relatives, thereby excluding other relatives.                                                                      
     House  Bill 5  helps  families act  in  their own  best                                                                    
     interest  by  allowing  an   adult  related  by  blood,                                                                    
     marriage   or  adoption   to   serve  as   conservator.                                                                    
     Expanding  the pool  of persons  who could  serve as  a                                                                    
     conservator will  allow greater flexibility  and choice                                                                    
     for individuals and families needing this service.                                                                         
     House Bill 5  does not change the  judicial process for                                                                    
     appointing   a  conservator   or  weaken   the  court's                                                                    
     authority  to  act  in  the   "best  interest"  of  the                                                                    
     protected person.                                                                                                          
REPRESENTATIVE HAWKER asked  the committee to consider  this as a                                                               
small step  in making  it easier  to secure  conservatorships. It                                                               
tries to  help the narrow  window of people  who want to  have an                                                               
in-law or an adult related by  marriage or adoption to be able to                                                               
be a conservator.                                                                                                               
1:50:01 PM                                                                                                                    
CHAIR MCGUIRE stated  support for the bill and  explained why she                                                               
is leaning toward expanding the  bill further. Primarily it is to                                                               
meet the situations where a  potential conservator is divorced, a                                                               
close  friend or  business partner.  She provided  two scenarios.                                                               
First, if  her father and step  mother were to divorce,  her step                                                               
brother would  be excluded from  being appointed  her conservator                                                               
because he  would no longer be  related to her by  marriage. This                                                               
would be the  case even if the court determined  that a potential                                                               
conflict  of interest  was not  substantial  and the  appointment                                                               
would  be in  her  best  interest as  the  protected person.  The                                                               
second scenario  assumes she has  no biological siblings  who are                                                               
female, but  she has  two life-long girlfriends  who also  have a                                                               
common  business interest.  That presents  an inherent  potential                                                               
financial conflict of interest.                                                                                                 
She  said that  it is  ultimately about  the person  who needs  a                                                               
conservator and  she believes the  common law standard  does that                                                               
with the  caveat that  the court can  determine that  a potential                                                               
conflict of interest is not  substantial. She advised that she is                                                               
leaning in that direction for a committee substitute (CS).                                                                      
SENATOR COSTELLO suggested the committee  look at the matter from                                                               
the perspective  of a  person who  has been  adopted and  needs a                                                               
conservator. The biological family is  related by blood and would                                                               
qualify  as  a potential  conservator  even  if the  adoptee  was                                                               
purposefully removed  from that  family unit.  She asked  if he'd                                                               
thought of that.                                                                                                                
REPRESENTATIVE HAWKER replied the  adoption statutes and the bill                                                               
address that through the layered list of qualifiers.                                                                            
SENATOR COGHILL observed  that the two factors are  that it isn't                                                               
a  large conflict  and  that it's  in the  best  interest of  the                                                               
person needing a conservator.                                                                                                   
1:56:18 PM                                                                                                                    
SENATOR COSTELLO pointed out that  the exception to the exception                                                               
comes  from the  current  law which  focuses  on the  traditional                                                               
family unit of a married  couple and adult children. Changing the                                                               
statute to  an adult  related by blood  expands the  exception to                                                               
include people who are related by  blood to a person who has been                                                               
adopted. She also questioned the  use of the phrase "or adoption"                                                               
because people  don't talk about  their legal children  and their                                                               
adopted children; they refer to their family as a unit.                                                                         
REPRESENTATIVE HAWKER  reviewed the prioritized list  and pointed                                                               
out there is nothing that  mandates that someone related by blood                                                               
can demand  the conservatorship and disregard  what the protected                                                               
person may want.                                                                                                                
2:00:41 PM                                                                                                                    
SENATOR  MCGUIRE questioned  the  wisdom of  creating a  separate                                                               
standard for anybody.                                                                                                           
SENATOR  COSTELLO  asked  if  there is  a  difference  between  a                                                               
conservator and a power of attorney.                                                                                            
REPRESENTATIVE  HAWKER  deferred  the  question  to  a  competent                                                               
attorney. He noted that Ms. Elliott had something to add.                                                                       
2:03:17 PM                                                                                                                    
CECILE ELLIOTT, Staff, Representative  Mike Hawker, provided some                                                               
background  information. In  2004 the  licensure of  guardian and                                                               
conservator  statutes were  amended to  encourage more  people to                                                               
serve  in this  capacity, but  the conflict  of interest  was not                                                               
fully addressed. Nor was it in the Uniform Probate Code.                                                                        
SENATOR  WIELECHOWSKI  observed  that the  statute  is  awkwardly                                                               
written. He surmised  that the issue for the in-laws  is that the                                                               
court  sees a  potential conflict  in that  relationship, perhaps                                                               
with  inheritance. He  asked  if  that or  something  else is  at                                                               
REPRESENTATIVE HAWKER  agreed that the statute  is cumbersome and                                                               
confirmed that  the point at issue  is that there is  no explicit                                                               
provision to  allow an in-law  to be appointed a  conservator. He                                                               
advised  that  he  had  the exception  drafted  to  minimize  the                                                               
SENATOR   WIELECHOWSKI    questioned   the    potentially   broad                                                               
ramifications of making this change.                                                                                            
2:09:21 PM                                                                                                                    
CHAIR  MCGUIRE stated  her intent  to  hold the  bill so  members                                                               
could think  about potential conservators  that fall  outside the                                                               
model.  For example,  someone who  was  her step  brother for  23                                                               
years  before her  parents divorced  wouldn't qualify  because he                                                               
would no longer be related to her by marriage.                                                                                  
REPRESENTATIVE HAWKER suggested the chair  asked the court how it                                                               
would view the various scenarios.                                                                                               
SENATOR COSTELLO expressed interest  in knowing what other states                                                               
have  done and  stated  support  for flexibility  in  the law  to                                                               
facilitate the selection of the right conservator.                                                                              
CHAIR  MCGUIRE commented  on the  changing  definition of  family                                                               
over time.                                                                                                                      
2:13:40 PM                                                                                                                    
SENATOR MICCICHE joined the committee.                                                                                          
CHAIR  MCGUIRE  thanked  the  sponsor   for  bringing  the  issue                                                               
forward. She asked Ms. Meade to  comment on two scenarios: a step                                                               
brother no longer  related by marriage and her  best friend since                                                               
age  17  as  potential  conservators.   The  assumption  in  both                                                               
scenarios is  that there is a  conflict because she is  living in                                                               
their home.                                                                                                                     
2:13:53 PM                                                                                                                    
NANCY MEADE, General Counsel,  Administrative Staff, Alaska Court                                                               
System,  said her  understanding  of the  statute  is that  there                                                               
would  be   a  conflict  of   interest  under   AS  13.26.210(b).                                                               
Subsection (c)  provides an  exception to  that conflict  but the                                                               
list of  potential conservators does  not include a  step brother                                                               
no longer related by marriage or a best friend.                                                                                 
SENATOR  WIELECHOWSKI asked  how many  times per  year the  court                                                               
appoints a conservator.                                                                                                         
MS.  MEADE replied  it's not  insubstantial and  the numbers  are                                                               
growing as  the population  ages. She offered  to follow  up with                                                               
the   exact    number   and   highlighted    that   conservators,                                                               
guardianships,  and probate  as a  whole is  the fastest  growing                                                               
case type.                                                                                                                      
SENATOR  COSTELLO  asked how  often  a  conservator is  appointed                                                               
according to  law, but  is someone  different than  the protected                                                               
person requested or had in mind.                                                                                                
MS.  MEADE said  she didn't  believe it  happens very  often, but                                                               
that is not a reason to maintain the statute.                                                                                   
2:17:01 PM                                                                                                                    
SENATOR WIELECHOWSKI  expressed interest  in getting  the numbers                                                               
on how  many cases  come up,  how many  times the  conservator is                                                               
rejected, and  the grounds for  the rejection  to get a  sense of                                                               
the magnitude of the problem.                                                                                                   
MS. MEADE agreed to get the information.                                                                                        
2:17:50 PM                                                                                                                    
MARIE  DARLIN,  representing AARP  of  Alaska,  advised that  the                                                               
packets contain  letters of support  for HB  5 from AARP  and the                                                               
Alaska Commission on Aging.                                                                                                     
CHAIR MCGUIRE asked if AARP  would support a committee substitute                                                               
to entirely  eliminate the qualifiers.  It would simply  say that                                                               
if there was  a conflict, the court would  consider the protected                                                               
person's preference to be their conservator.                                                                                    
MS. DARLIN said she believes so and she would provide a letter.                                                                 
2:19:57 PM                                                                                                                    
DARIN COLBRY, representing  himself, Anchorage, Alaska, testified                                                               
in  support  of  HB  5.  He advised  that  he  is  Representative                                                               
Hawker's constituent  who brought the  issue forward. His  dad is                                                               
his conservator and  his wife wanted her father-in-law  to be her                                                               
conservator as  well, but  the court  said it  was a  conflict of                                                               
interest  based on  the living  situation. He  elaborated on  the                                                               
difficulties that decision has caused.                                                                                          
2:23:04 PM                                                                                                                    
CHAIR  MCGUIRE  found no  further  testifiers  and closed  public                                                               
testimony.  She  held HB  5  in  committee awaiting  a  committee                                                               
substitute (CS).                                                                                                                

Document Name Date/Time Subjects
1 SB47 Sponsor Statement.pdf SJUD 3/16/2015 1:30:00 PM
SB 47
2 SB47 Version A.pdf SJUD 3/16/2015 1:30:00 PM
SB 47
3 SB47 Sectional Analysis.pdf SJUD 3/16/2015 1:30:00 PM
SB 47
4 SB47 Supporting Research Alaska Exemptions Act.pdf SJUD 3/16/2015 1:30:00 PM
SB 47
5 SB47 Supporting Research Insurance Fraud.pdf SJUD 3/16/2015 1:30:00 PM
SB 47
1 SB43 Sponsor Statement.pdf SJUD 3/16/2015 1:30:00 PM
SB 43
2 SB43 Version H.pdf SJUD 3/16/2015 1:30:00 PM
SB 43
3 SB43 Summary of Changes Version W to H.pdf SJUD 3/16/2015 1:30:00 PM
SB 43
4 SB43 Letter of Support Fire Chiefs Assoc.pdf SJUD 3/16/2015 1:30:00 PM
SB 43
4.1 SB43 Letter of Support FNSB.pdf SJUD 3/16/2015 1:30:00 PM
SB 43
4.2 SB43 Letter of Support Interior Fire Chiefs.pdf SJUD 3/16/2015 1:30:00 PM
SB 43
1 HB5 Sponsor Statement.pdf SJUD 3/16/2015 1:30:00 PM
HB 5
2 HB5 Version W.pdf SJUD 3/16/2015 1:30:00 PM
HB 5
3 HB5 Letter of Support ACOA.pdf SJUD 3/16/2015 1:30:00 PM
HB 5
4 HB5 Letter of Support AARP.pdf SJUD 3/16/2015 1:30:00 PM
HB 5