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24th Legislature(2005-2006)

Bill Text 24th Legislature


00 Enrolled HB 399                                                                                                         
01 Establishing the office of elder fraud and assistance; and relating to fraud involving older                            
02 Alaskans.                                                                                                               
03                           _______________                                                                               
04    * Section 1. AS 44.21.410(a) is amended to read:                                                                   
05            (a)  The office of public advocacy shall                                                                     
06                 (1)  perform the duties of the public guardian under AS 13.26.360 -                                     
07       13.26.410;                                                                                                        
08                 (2)  provide visitors and experts in guardianship proceedings under                                     
09       AS 13.26.131;                                                                                                     
10                 (3)  provide guardian ad litem services to children in child protection                                 
11       actions under AS 47.17.030(e) and to wards and respondents in guardianship                                        
12       proceedings who will suffer financial hardship or become dependent upon a                                         
13       government agency or a private person or agency if the services are not provided at                               
14       state expense under AS 13.26.025;                                                                                 
01                 (4)  provide legal representation in cases involving judicial bypass                                    
02       procedures for minors seeking abortions under AS 18.16.030, in guardianship                                       
03       proceedings to respondents who are financially unable to employ attorneys under                                   
04       AS 13.26.106(b), to indigent parties in cases involving child custody in which the                                
05       opposing party is represented by counsel provided by a public agency, to indigent                                 
06       parents or guardians of a minor respondent in a commitment proceeding concerning                                  
07       the minor under AS 47.30.775;                                                                                     
08                 (5)  provide legal representation and guardian ad litem services under                                  
09       AS 25.24.310; in cases arising under AS 47.15 (Uniform Interstate Compact on                                      
10       Juveniles); in cases involving petitions to adopt a minor under AS 25.23.125(b) or                                
11       petitions for the termination of parental rights on grounds set out in                                            
12       AS 25.23.180(c)(3); in cases involving petitions to remove the disabilities of a minor                            
13       under AS 09.55.590; in children's proceedings under AS 47.10.050(a) or under                                      
14       AS 47.12.090; in cases involving appointments under AS 18.66.100(a) in petitions for                              
15       protective orders on behalf of a minor; and in cases involving indigent persons who                               
16       are entitled to representation under AS 18.85.100 and who cannot be represented by                                
17       the public defender agency because of a conflict of interests;                                                    
18                 (6)  develop and coordinate a program to recruit, select, train, assign,                                
19       and supervise volunteer guardians ad litem from local communities to aid in delivering                            
20       services in cases in which the office of public advocacy is appointed as guardian ad                              
21       litem;                                                                                                            
22                 (7)  provide guardian ad litem services in proceedings under                                            
23       AS 12.45.046 or AS 18.15.355 - 18.15.395;                                                                         
24                 (8)  establish a fee schedule and collect fees for services provided by                                 
25       the office, except as provided in AS 18.85.120 or when imposition or collection of a                              
26       fee is not in the public interest as defined under regulations adopted by the                                     
27       commissioner of administration;                                                                                   
28                 (9)  provide visitors and guardians ad litem in proceedings under                                       
29       AS 47.30.839;                                                                                                     
30                 (10)  provide legal representation to an indigent parent of a child with a                              
31       disability; in this paragraph, "child with a disability" has the meaning given in                                 
01       AS 14.30.350;                                                                                                 
02                 (11)  investigate complaints and bring civil actions under                                          
03       AS 44.21.415(a) involving fraud committed against residents of the state who are                              
04       60 years of age or older; in this paragraph, "fraud" has the meaning given in                                 
05       AS 44.21.415.                                                                                                 
06    * Sec. 2. AS 44.21 is amended by adding a new section to read:                                                     
07            Sec. 44.21.415. Office of elder fraud and assistance. (a) The office of elder                            
08       fraud and assistance is established in the office of public advocacy to investigate                               
09       complaints involving fraud committed against older Alaskans who are not otherwise                                 
10       able to bring a complaint without assistance, as defined in regulation, and to provide                            
11       assistance to older Alaskans who are victims of fraud. The office shall work with                                 
12       local, state, and national law enforcement and social service agencies through                                    
13       cooperative agreements and may bring civil enforcement actions for injunctive and                                 
14       other relief for fraud committed against older Alaskans.                                                          
15            (b)  In conducting an investigation under this section, the office of elder fraud                            
16       and assistance may issue subpoenas, conduct interviews, and examine the business                                  
17       records, advances, transactions, and relevant records associated with the alleged fraud                           
18       committed against an older Alaskan. The office may enter into contracts with                                      
19       attorneys and seek a court order to enforce a subpoena.                                                           
20            (c)  In addition to the functions described under (a) and (b) of this section, the                           
21       office of elder fraud and assistance shall provide information, referrals, and other                              
22       assistance to older Alaskans who are victims of fraud and make recommendations to                                 
23       the commissioner for regulations on eligibility for assistance needed to implement this                           
24       section.                                                                                                          
25            (d)  A cooperative agreement under (a) of this section must include a                                        
26       description of office operations and investigation protocols.                                                     
27            (e)  Subject to the discretion of the court and standards established in                                     
28       regulation adopted by the commissioner of administration and taking into                                          
29       consideration the financial condition of the parties to a civil suit brought under this                           
30       section, the office of public advocacy may seek recovery of all or part of litigation                             
31       costs and fees from any party, including costs incurred during the investigation of the                           
01       case, when the office of public advocacy is found to be a prevailing party after trial or                         
02       settlement negotiation. The office of public advocacy shall enter into a fee agreement                            
03       with a client that is consistent with this section, the Alaska Rules of Court, and the                            
04       Alaska Rules of Professional Conduct.                                                                             
05            (f)  Nothing in this section prohibits the Department of Law from investigating                              
06       or prosecuting a person for unfair methods of competition and unfair or deceptive acts                            
07       or practices in the conduct of trade or commerce under AS 45.50.471 and 45.50.495.                                
08            (g)  In this section,                                                                                        
09                 (1)  "fraud" means                                                                                      
10                      (A)  robbery, extortion, and coercion under AS 11.41.500 -                                         
11            11.41.530;                                                                                                   
12                      (B)  theft and related offenses under AS 11.46.100 - 11.46.740;                                    
13            or                                                                                                           
14                      (C)  exploitation of another person or another person's resources                                  
15            for personal profit or advantage with no significant benefit accruing to the                                 
16            person who is exploited;                                                                                     
17                 (2)  "older Alaskan" means a person residing in the state who is 60                                     
18       years of age or older.                                                                                            
19    * Sec. 3. AS 47.24.015(c) is amended to read:                                                                      
20            (c)  The department, or its designee, shall immediately terminate an                                         
21       investigation under this section upon the request of the vulnerable adult who is the                              
22       subject of the report made under AS 47.24.010. However, the department or its                                     
23       designee may not terminate the investigation if the investigation to that point has                               
24       resulted in probable cause to believe that the vulnerable adult is in need of protective                          
25       services and the request is made personally by the vulnerable adult and the vulnerable                            
26       adult is not competent to make the request on the adult's own behalf, or the request is                           
27       made by the vulnerable adult's guardian, attorney-in-fact, or surrogate decision maker                            
28       and that person is the alleged perpetrator of the abandonment, exploitation, abuse, or                            
29       neglect of the vulnerable adult and is being investigated under this chapter. If the                              
30       department has probable cause to believe that the vulnerable adult is in need of                                  
31       protective services,                                                                                              
01                 (1)  the department may petition the court as set out in AS 47.24.019;                                  
02       [OR]                                                                                                              
03                 (2)  the department or its designee may refer the report made to the                                    
04       department under AS 47.24.010 to a police officer for criminal investigation; or                              
05                 (3)  in cases involving fraud, the department or its designee may                                   
06       refer the report made to the department under AS 47.24.010 to the office of                                   
07       public advocacy for investigation; in this paragraph, "fraud" has the meaning                                 
08       given in AS 44.21.415.                                                                                        
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