Legislature(2015 - 2016)BELTZ 105 (TSBldg)

02/08/2016 01:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 121 Bills Previously Heard/Scheduled: TELECONFERENCED
Heard & Held
+ HB 8 POWERS OF ATTORNEY TELECONFERENCED
Heard & Held
-- Public Testimony --
Bills Previously Heard/Scheduled:
+= SJR 15 CALL FOR US COUNTERMAND CONVENTION TELECONFERENCED
Moved CSSJR 15(JUD) Out of Committee
+= SCR 4 US COUNTERMAND CONVENTION DELEGATES TELECONFERENCED
Moved CSSCR 4(JUD) Out of Committee
                   HB   8-POWERS OF ATTORNEY                                                                                
                                                                                                                                
1:54:37 PM                                                                                                                    
CHAIR  MCGUIRE announced  the  consideration of  HB 8. [SCS  CSHB
8(HSS) was before the committee.]                                                                                               
                                                                                                                                
1:55:24 PM                                                                                                                    
GINGER  BLAISDELL, Staff,  Representative  Shelly Hughes,  Alaska                                                               
State  Legislature, presented  the  following sectional  analysis                                                               
for HB 8, version G, on behalf of the sponsor:                                                                                  
                                                                                                                                
     Section  1  replaces  the   current  definition  of  an                                                                    
     "agent" with a more nationally recognized term.                                                                            
                                                                                                                                
     Section  2  corrects  the   definition  of  "state"  by                                                                    
     including the United States Virgin Islands.                                                                                
                                                                                                                                
     Section   3  adds   new   definitions  for   "durable,"                                                                    
     "electronic,"   "power   of   attorney,"   "principal,"                                                                    
     "record," and "sign,"  as they pertain to  the Act. The                                                                    
     definition   for   "sign"    is   probably   the   most                                                                    
     significant.  An  audible   or  visual  designation  or                                                                    
     signing  for  someone  is  now  allowed.  This  is  for                                                                    
     someone  who has  full capacity  but is  inhibited from                                                                    
     signing   for   him/herself   due  to   some   physical                                                                    
     impairment.                                                                                                                
                                                                                                                                
     Section 4  is a new  section that states that  an agent                                                                    
     is the  person granted  powers and the  finances belong                                                                    
     to the  principal. It  contains the  agent's acceptance                                                                    
     and  liability and  describes  the  agent's duties.  It                                                                    
     also pertains  to the acceptance  and termination  of a                                                                    
     power of attorney.                                                                                                         
                                                                                                                                
     Section 5  recognizes a power  of attorney  executed in                                                                    
     another state.                                                                                                             
                                                                                                                                
     Section 6  edits the  power of  attorney (POA)  form in                                                                    
     statute and requires the principal  to mark (as opposed                                                                    
     to check) a box in  each category and provides optional                                                                    
     grant of  specific authority to create,  amend, revoke,                                                                    
     or terminate  a trust;  make a  gift; create  or change                                                                    
     beneficiaries; or  revoke a transfer  on a  death deed;                                                                    
     change rights of  survivorship; delegate authority; and                                                                    
     waive the  principal's right to  be a  beneficiary. For                                                                    
     example,  a person  might want  someone  to make  their                                                                    
     house payments, but not sell their house.                                                                                  
                                                                                                                                
SENATOR  COSTELLO  asked  what   section  prevents  someone  from                                                               
selling another person's house and taking the payments.                                                                         
                                                                                                                                
MS. BLAISDELL directed attention to  page 8, line 19 titled "real                                                               
estate transactions"  and line 23 titled  "banking transactions."                                                               
Checking "No" on  line 19 would prohibit someone  from making any                                                               
real estate  transactions, and  checking "Yes"  on line  23 would                                                               
allow a person to pay the mortgage on behalf of the principal.                                                                  
                                                                                                                                
CHAIR  MCGUIRE  described this  as  an  excellent provision.  She                                                               
expressed hope  that the  bill isn't so  specific that  it leaves                                                               
out the ability to add protections later on.                                                                                    
                                                                                                                                
SENATOR COSTELLO asked the  definition of "personal relationships                                                               
and affairs" on page 8, line  29, because a power of attorney for                                                               
personal affairs  could include  real estate  transactions. Also,                                                               
"records, reports,  and statements" on  page 9, line 1,  could be                                                               
confusing to interpret.  She argued that all  the categories fall                                                               
under  personal   affairs.  She   asked  if  there   was  another                                                               
intention.                                                                                                                      
                                                                                                                                
MS. BLAISDELL  advised that expanded  definitions and  what would                                                               
be included in each category appear later in the bill.                                                                          
                                                                                                                                
2:03:59 PM                                                                                                                    
MS.  BLAISDELL continued  to discuss  Section  6 explaining  that                                                               
page 9  has a new  section titled "grant of  specific authority,"                                                               
which is optional. These are things  that a person may or may not                                                               
choose to  award someone  who is  managing their  finances. These                                                               
are commonly referred to as  "Hot Powers" because they carry more                                                               
weight  than day-to-day  transactions. Page  10 updates  the term                                                               
"check" to  "mark" so any kind  of tangible mark can  be accepted                                                               
in  lieu   of  a  signature   and  "disability"  is   changed  to                                                               
"incapacity."  Page 11  strengthens  the notary  provision. If  a                                                               
person is  selected to  sign on  behalf of  the principal  who is                                                               
physically unable to sign, the  notary must document the personal                                                               
information  of  the principal  and  the  person signing  on  the                                                               
principal's behalf.                                                                                                             
                                                                                                                                
SENATOR  COSTELLO asked  the procedure  and  requirements if  the                                                               
principal is not present at the signing.                                                                                        
                                                                                                                                
MS.  BLAISDELL clarified  that the  principal  has to  physically                                                               
appear;  a  person  is  signing   on  their  behalf  because  the                                                               
principal  is physically  unable to  sign. This  could be  due to                                                               
arthritis or a broken arm, for example.                                                                                         
                                                                                                                                
2:09:00 PM                                                                                                                    
SENATOR COGHILL related  a personal experience, and  asked if the                                                               
potential for intimidation has been considered.                                                                                 
                                                                                                                                
MS.  BLAISDELL acknowledged  that  she  hadn't completely  vetted                                                               
"intimidation." She continued the sectional analysis:                                                                           
                                                                                                                                
     Section  7  changes  the term  "attorney  in  fact"  to                                                                    
     "agent."                                                                                                                   
                                                                                                                                
     Section 8  deals with  the applicability  of provisions                                                                    
     and changes terms for consistency.  A new paragraph (5)                                                                    
     clarifies that  if the principal  fails to  mark either                                                                    
     the "yes" or  "no" box, or marks both  boxes, the agent                                                                    
     would not be granted that power.                                                                                           
                                                                                                                                
     Sections  9-11  remove  the  term  "revoke,  create  or                                                                    
     modify  a   trust"  and  includes  it   in  a  separate                                                                    
     selection on the POA form.                                                                                                 
                                                                                                                                
     Section  12  adds the  ability  for  the agent  to  use                                                                    
     credit and debit cards, and electronic transactions.                                                                       
                                                                                                                                
2:12:03 PM                                                                                                                    
SENATOR COSTELLO asked what protection a bank would have when                                                                   
the person using the card isn't named on the card.                                                                              
                                                                                                                                
MS. BLAISDELL explained that the bill provides judicial relief                                                                  
and allows someone to look at the agent's actions. She continued                                                                
the sectional analysis:                                                                                                         
                                                                                                                                
     Section   13  adds   additional  responsibilities   and                                                                    
     clarification responsibilities  of the agent  to manage                                                                    
     the affairs of the principal's businesses.                                                                                 
                                                                                                                                
     Section  14   identifies  an  additional   function  of                                                                    
     managing the principal's insurance or annuity.                                                                             
                                                                                                                                
     Section 15  provides the agent  with all the  powers to                                                                    
     effectively manage the principal's retirement plan(s).                                                                     
                                                                                                                                
2:15:26 PM                                                                                                                    
     Section  16  amends   the  section  regarding  personal                                                                    
     relationships such as child support under HIPAA rules.                                                                     
                                                                                                                                
SENATOR COGHILL asked how this affects a healthcare directive.                                                                  
                                                                                                                                
MS. BLAISDELL clarified that this does not replace or supersede                                                                 
a healthcare directive. She continued the sectional analysis:                                                                   
                                                                                                                                
     Section  17 amends  the  section regarding  government,                                                                    
     military  service,  or  civil service.  It  allows  the                                                                    
     agent to enroll in,  apply for, select, reject, change,                                                                    
     amend or discontinue a program.                                                                                            
                                                                                                                                
2:17:49 PM                                                                                                                    
     Section 18  adds a new  subsection (q) to  AS 13.26.344                                                                    
     regarding  specific  authority  with  respect  to  gift                                                                    
     transactions. This  is one  of the  Hot Powers  where a                                                                    
     principal can  designate whether  or not the  agent has                                                                    
     powers to designate gifts.                                                                                                 
                                                                                                                                
     Section 19 amends  AS 13.26.347 to relieve  an agent of                                                                    
     liability for  breach of duty  unless it  was committed                                                                    
     dishonestly.                                                                                                               
                                                                                                                                
2:19:13 PM                                                                                                                    
     Section   20   replaces   the   term   "disability   or                                                                    
     incompetence" with "incapacity."                                                                                           
                                                                                                                                
SENATOR COSTELLO asked if incapacity is defined elsewhere.                                                                      
                                                                                                                                
MS. BLAISDELL  directed attention to  the definition on  page 37,                                                               
line 14.                                                                                                                        
                                                                                                                                
2:20:00 PM                                                                                                                    
VICE CHAIR COGHILL assumed the gavel.                                                                                           
                                                                                                                                
SENATOR COSTELLO asked if this  definition matches the definition                                                               
in the insurance statutes.                                                                                                      
                                                                                                                                
MS. BLAISDELL confirmed that they match.                                                                                        
                                                                                                                                
SENATOR  COSTELLO  suggested  looking  to  make  sure  that  this                                                               
definition  of "incapacity"  matches the  specifically delineated                                                               
definition for healthcare insurance to apply.                                                                                   
                                                                                                                                
VICE  CHAIR  COGHILL suggested  that  Deborah  Behr may  have  an                                                               
answer.                                                                                                                         
                                                                                                                                
2:21:47 PM                                                                                                                    
MS. BLAISDELL continued the sectional analysis.                                                                                 
                                                                                                                                
     Section  21  clarifies   the  grounds  for  determining                                                                    
     incapacity  of an  individual  and includes  additional                                                                    
     provisions  such  as  if   the  principal  is  missing,                                                                    
     detained or unable to return to the U.S.                                                                                   
                                                                                                                                
     Section 22  is a  technical amendment that  inserts the                                                                    
     term "agent" and updates the statutory reference.                                                                          
                                                                                                                                
VICE  CHAIR COGHILL  questioned the  reason that  Section 21  was                                                               
repealed and reenacted.                                                                                                         
                                                                                                                                
MS.  BLAISDELL  didn't  recall  the  reason.  She  continued  the                                                               
sectional analysis:                                                                                                             
                                                                                                                                
     Section 23 adds  a new section on  judicial relief that                                                                    
     allows  specified  individuals  to petition  the  court                                                                    
     asking for  a review  of the  agent's conduct.  It also                                                                    
     adds a new  section on relationship to  other laws that                                                                    
     specifies  that the  Act does  not supersede  any other                                                                    
     law  applicable to  a  financial  institution or  other                                                                    
     entity; and it allows electronic signatures.                                                                               
                                                                                                                                
     [Section 24 is a technical amendment to update terms.]                                                                     
                                                                                                                                
     Section 25 adds a new  section relating to execution of                                                                    
     power of attorney.  It states that a  power of attorney                                                                    
     in this state is valid  if the principal signs the form                                                                    
     or directs  another to sign  on his/her behalf  and the                                                                    
     signature is acknowledged by a  notary. She deferred to                                                                    
     Deborah Behr for a further explanation.                                                                                    
                                                                                                                                
     Section 26  is a  technical change  to remove  the term                                                                    
     "attorney in fact."                                                                                                        
                                                                                                                                
     Section 27 adds new definitions to AS 13.26.                                                                               
                                                                                                                                
     Section 28  adds a new  chapter titled  "Recognition of                                                                    
     Substitute  Decision-Making  Documents"  that  requires                                                                    
     the  state   of  Alaska  to  recognize   as  valid  any                                                                    
     decision-making documents  for a  principal as  long as                                                                    
     they were executed in compliance  with the law from the                                                                    
     jurisdiction from which they came.                                                                                         
                                                                                                                                
2:27:01 PM                                                                                                                    
SENATOR COSTELLO said that tells her that notary signatures on                                                                  
any document aren't recognized from state-to-state.                                                                             
                                                                                                                                
MS. BLAISDELL said she isn't sure about any document, but it                                                                    
could affect a financial power of attorney or healthcare                                                                        
directive. She continued the sectional analysis:                                                                                
                                                                                                                                
     Section 28,  page 40, also adds  definitions clarifying                                                                    
     what it means when accepting documents between states.                                                                     
                                                                                                                                
     Section  29 repeals  AS  13.26.338(a), AS  13.26.344(n)                                                                    
     and AS 13.26.353(c).                                                                                                       
                                                                                                                                
     Section  30 is  the applicability  section. A  power of                                                                    
     attorney formed prior to the  effective date of the Act                                                                    
     is not nullified.                                                                                                          
                                                                                                                                
     Section  31 provides  an effective  date of  January 1,                                                                    
     2017.                                                                                                                      
                                                                                                                                
2:30:00 PM                                                                                                                    
REPRESENTATIVE SHELLEY HUGHES,  Alaska State Legislature, sponsor                                                               
of HB  8, stated that  elders and vulnerable individuals  in this                                                               
state are valued and honored,  but they need certain protections.                                                               
She highlighted  that AARP, the  Association of  Mature Americans                                                               
and other  senior groups  support the bill  because they  see the                                                               
need.  In   Alaska,  there  are  600   allegations  of  financial                                                               
exploitation and many  of those involve the misuse of  a power of                                                               
attorney.  These  clarifications  will strengthen  the  statutes,                                                               
protect vulnerable individuals and guide those caring for them.                                                                 
                                                                                                                                
2:31:56 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if she had  a list of where  the bill                                                               
deviates from the Uniform Power of Attorney.                                                                                    
                                                                                                                                
MS. BLAISDELL  agreed to share a  copy of the 175  page document.                                                               
She explained that  the Uniform Law Commission  compared, line by                                                               
line, the Alaska statutes to  their model bill. The sponsor, long                                                               
term  care  ombudsman  and an  assistant  attorney  general  then                                                               
reviewed the comparison.                                                                                                        
                                                                                                                                
SENATOR  WIELECHOWSKI  said  he's interested  in  the  meaningful                                                               
policy decisions, not clerical or technical changes.                                                                            
                                                                                                                                
VICE CHAIR COGHILL expressed interest  in seeing where Alaska law                                                               
departs from the model legislation.                                                                                             
                                                                                                                                
2:34:09 PM                                                                                                                    
DEBORAH BEHR, Member, Alaska Uniform  Law Delegation, stated that                                                               
Alaska  has been  a  member  of the  commission  since 1914.  She                                                               
explained that this confederation of  states looks at things that                                                               
are appropriate  to be uniform  among the states. The  model bill                                                               
took 3-4 years to complete and  uses what all states could accept                                                               
and the  courts could interpret  uniform across the  states. That                                                               
is the goal of a Uniform Act.                                                                                                   
                                                                                                                                
She  described the  first  37  pages of  the  bill  as an  Alaska                                                               
version of the Uniform Act  and deferred further comment on those                                                               
pages to the sponsor.                                                                                                           
                                                                                                                                
Page 38  forward is the  Uniform Act that allows  for recognition                                                               
of substitute  decision-making documents, primarily the  power of                                                               
attorney and the advanced healthcare  directive. It establishes a                                                               
uniform process for  these documents to be  accepted quickly from                                                               
state  to state  without  having  to go  to  court. She  provided                                                               
examples.                                                                                                                       
                                                                                                                                
She noted  that she  suggested four  technical amendments  to the                                                               
sponsor's staff to make the  bill work better. She also described                                                               
the  power of  attorney  improvements in  the  bill as  excellent                                                               
compared to current Alaska law, but not uniform.                                                                                
                                                                                                                                
2:39:47 PM                                                                                                                    
SENATOR  COSTELLO asked  if pages  1-37 have  elements that  were                                                               
vetted  and  ultimately rejected  by  the  national committee  or                                                               
developed in Alaska.                                                                                                            
                                                                                                                                
MS. BEHR  said her  understanding is that  the sponsor  looked at                                                               
the Uniform Act  and reviewed it with a variety  of Alaska groups                                                               
before  making Alaska-specific  changes. She  opined that  one of                                                               
the  major differences  between  the documents  is the  statutory                                                               
form itself. The Alaska form  requires "yes" or "no" responses to                                                               
options, whereas the  Uniform Act form only requires  a person to                                                               
initial  the  options  he/she  wants.   The  terminology  in  the                                                               
standard form  is also slightly  different than the  Alaska form.                                                               
While she  believes this will  cause interpretation  problems, it                                                               
is a vast improvement over the existing power of attorney law.                                                                  
                                                                                                                                
SENATOR COSTELLO  asked if the Uniform  Law Commission considered                                                               
and rejected  the "yes" or  "no" method for selecting  options or                                                               
if it's unique to Alaska.                                                                                                       
                                                                                                                                
MS. BEHR replied, "If we do a  yes/no, we'll be the only state in                                                               
the union, to my knowledge, to do this."                                                                                        
                                                                                                                                
2:43:18 PM                                                                                                                    
RACHAEL  GREENBERG  stated that  she  is  representing AgeNet,  a                                                               
group  of  40  agencies  that provide  services  to  over  10,000                                                               
seniors  around the  state. Their  priority is  to protect  older                                                               
Alaskans from elder financial abuse,  exploitation and harm. HB 8                                                               
provides this protection.                                                                                                       
                                                                                                                                
She disclosed  that she is  also the executive director  of MatSu                                                               
Senior Services  and when  they assist with  a power  of attorney                                                               
form, they  ask the agent  to step out of  the room to  avoid the                                                               
potential   for  coercion.   On   a  regular   basis  there   are                                                               
misunderstandings  about  the specific  powers  that  a power  of                                                               
attorney provides, and  HB 8 will strengthen  that protection for                                                               
elders. She urged the committee to support the bill.                                                                            
                                                                                                                                
VICE CHAIR COGHILL  noted that the bill requires a  person who is                                                               
not  physically able  sign to  give verbal  consent. He  asked if                                                               
she's had that experience.                                                                                                      
                                                                                                                                
MR. GREENBERG  answered yes; they've  had a number of  people who                                                               
could not sign their name  because of arthritis or blindness, but                                                               
they were  cognitively aware and  knew exactly what  they wanted.                                                               
The existing law makes this process difficult, she said.                                                                        
                                                                                                                                
VICE  CHAIR  COGHILL  said  the committee  will  be  looking  for                                                               
cognitive  capacity  because  of the  prevalence  of  early-onset                                                               
dementia to Alzheimer's.                                                                                                        
                                                                                                                                
MS. GREENBERG clarified  that they won't notarize  a signature if                                                               
a person has early-stage dementia.                                                                                              
                                                                                                                                
2:47:40 PM                                                                                                                    
VICE CHAIR  COGHILL asked Ms.  Behr how close the  definition for                                                               
"incapacity" is to the Uniform Law.                                                                                             
                                                                                                                                
MS. BEHR  said she believes  the Alaska definition is  very close                                                               
but  she'd have  to match  it word-for-word.  She added  that the                                                               
existing definition in statute focuses  on medical issues and the                                                               
bill adds  concepts to deal  with more  than that. She  cited the                                                               
example  of  reporters  who  were  kidnapped  while  on  overseas                                                               
assignment and  pointed out  that somebody  has to  conduct their                                                               
business during that time.                                                                                                      
                                                                                                                                
VICE CHAIR  COGHILL asked how  close the  bill is to  the Uniform                                                               
Act with  respect to a  person who  is physically unable  to sign                                                               
but cognitively aware.                                                                                                          
                                                                                                                                
MS. BEHR directed  attention to the provisions on  page 11, lines                                                               
29-31. She  said they were added  in a previous committee  and to                                                               
her  knowledge  they  are  not  part of  the  Uniform  form.  She                                                               
acknowledged  that  this may  address  problems  that Alaska  has                                                               
experienced.                                                                                                                    
                                                                                                                                
VICE CHAIR COGHILL asked Ms. Blaisdell her perspective.                                                                         
                                                                                                                                
MS.  BLAISDELL said  the  Uniform  law form  asks  the person  to                                                               
initial each  item they want and  HB 8 asks the  person to select                                                               
either "yes" or "no" for each option.                                                                                           
                                                                                                                                
2:51:40 PM                                                                                                                    
VICE CHAIR COGHILL said he would leave public testimony open.                                                                   
                                                                                                                                
He  asked Ms.  Behr who  generally holds  people to  account when                                                               
they have  a power  of attorney for  another person,  primarily a                                                               
family member.                                                                                                                  
                                                                                                                                
MS. BEHR  deferred the question  to the senior  advocates because                                                               
they've  been collecting  the complaints.  She  added that  there                                                               
have   been   an  estimated   600   complaints   filed  and   her                                                               
understanding is that the "war stories" relate to gifts.                                                                        
                                                                                                                                
VICE CHAIR COGHILL held HB 8 in committee with public testimony                                                                 
open.                                                                                                                           

Document Name Date/Time Subjects
SB 121 Alaska Personal Information Protection Act.pdf SJUD 2/8/2016 1:30:00 PM
SB 121
SB 121 Child ID Theft Report 2012.pdf SJUD 2/8/2016 1:30:00 PM
SB 121
SB 121 CyLab Child-Identity-Theft.pd.pdf SJUD 2/8/2016 1:30:00 PM
SB 121
SB 121 Fiscal Note.pdf SJUD 2/8/2016 1:30:00 PM
SB 121
SB 121 Laura Hughes Email.pdf SJUD 2/8/2016 1:30:00 PM
SB 121
SB 121 Laura Hughes Email.pdf SJUD 2/8/2016 1:30:00 PM
SB 121
SB 121 Legal Memo.pdf SJUD 2/8/2016 1:30:00 PM
SB 121
SB 121 NCSL Child Identity Theft State Laws.pdf SJUD 2/8/2016 1:30:00 PM
SB 121
SB 121 Sponsor Statement.pdf SJUD 2/8/2016 1:30:00 PM
SB 121
SB 121 State Security Freeze Laws.pdf SJUD 2/8/2016 1:30:00 PM
SB 121
SB0121A.pdf SJUD 2/8/2016 1:30:00 PM
SB 121
CSHB8.G.pdf SJUD 2/8/2016 1:30:00 PM
HB 8
Financial Exploitation statistics.pdf SJUD 2/8/2016 1:30:00 PM
HB8 Section Analysis-ver G Power of Attorney.pdf SJUD 2/8/2016 1:30:00 PM
HB 8
HB8 Supporting Documents - AARP letter.pdf SJUD 2/8/2016 1:30:00 PM
HB 8
HB8 Supporting Documents - AMAC.pdf SJUD 2/8/2016 1:30:00 PM
HB 8
HB8 Supporting Documents - Com on Aging letter.pdf SJUD 2/8/2016 1:30:00 PM
HB 8
HB8 Supporting Documents - LTCO.pdf SJUD 2/8/2016 1:30:00 PM
HB 8
HB8 Supporting Documents-Article AARP summary report.pdf SJUD 2/8/2016 1:30:00 PM
HB 8
HB8 Supporting Documents-Article Uniform Law Commission.pdf SJUD 2/8/2016 1:30:00 PM
HB 8
HB8 Supporting Documents-Articles multiple articles.pdf SJUD 2/8/2016 1:30:00 PM
HB 8
SCS CSHB8(HSS) Power of Attorney hearing request 1-29-2016.doc SJUD 2/8/2016 1:30:00 PM
HB 8
HB8fiscalNote. LAW.pdf SJUD 2/8/2016 1:30:00 PM
HB8fiscalNote. HSS.pdf SJUD 2/8/2016 1:30:00 PM
SB121fiscalNote.pdf SJUD 2/8/2016 1:30:00 PM
In support of SB 121- Crocker.msg SJUD 2/8/2016 1:30:00 PM
SB 121