This page is no longer used please use www.akleg.gov
27th Legislature(2011-2012)

Bill Text 27th Legislature


00 Enrolled SB 86                                                                                                          
01 Relating to the protection of property of persons under disability and minors; relating to the                          
02 crime of violating a protective order concerning certain vulnerable persons; relating to                                
03 aggravating factors at sentencing for offenses concerning a victim 65 years or older; relating                          
04 to the protection of vulnerable adults; making conforming amendments; amending Rules                                    
05 12(h) and 45(a), Alaska Rules of Criminal Procedure, Rule 77, Alaska Rules of Civil                                     
06 Procedure, Rule 17, Alaska Rules of Probate Procedure, and Rule 9, Alaska Rules of                                      
07 Administration; and providing for an effective date.                                                                    
08                           _______________                                                                               
09    * Section 1. AS 08.29.200(b) is amended to read:                                                                   
10            (b)  Notwithstanding (a) of this section, a person licensed under this chapter                               
11       shall report incidents of                                                                                         
12                 (1)  child abuse or neglect as required by AS 47.17;                                                    
13                 (2)  harm or assaults suffered by a vulnerable [AN ELDERLY                                          
01       PERSON OR DISABLED] adult as required by AS 47.24.                                                                
02    * Sec. 2. AS 08.63.200(b) is amended to read:                                                                      
03            (b)  Notwithstanding (a) of this section, a person licensed under this chapter                               
04       shall report incidents of                                                                                         
05                 (1)  child abuse or neglect as required by AS 47.17;                                                    
06                 (2)  harm or assaults suffered by a vulnerable [AN ELDERLY                                          
07       PERSON OR DISABLED] adult as required by AS 47.24.                                                                
08    * Sec. 3. AS 11.56.740(a) is amended to read:                                                                      
09            (a)  A person commits the crime of violating a protective order if the person is                             
10       subject to a protective order                                                                                     
11                 (1)  issued or filed under AS 18.66 and containing a provision listed in                                
12       AS 18.66.100(c)(1) - (7) and knowingly commits or attempts to commit an act with                                  
13       reckless disregard that the act violates or would violate a provision of the protective                           
14       order; [OR]                                                                                                       
15                 (2)  issued under AS 18.65.850, 18.65.855, or 18.65.860 and knowingly                                   
16       commits or attempts to commit an act that violates or would violate a provision listed                            
17       in AS 18.65.850(c)(1) - (3); or                                                                               
18                 (3)  issued under AS 13.26.207 - 13.26.209 and knowingly commits                                    
19       or attempts to commit an act with reckless disregard that the act violates or                                 
20       would violate a provision of the protective order.                                                            
21    * Sec. 4. AS 11.56.740(c) is amended to read:                                                                      
22            (c)  In this section, "protective order" means an order issued or filed under                                
23       AS 13.26.207 - 13.26.209, AS 18.65.850 - 18.65.870, or AS 18.66.100 - 18.66.180.                        
24    * Sec. 5. AS 12.55.155(c) is amended by adding a new paragraph to read:                                            
25                 (35)  the defendant knowingly directed the conduct constituting the                                     
26       offense at a victim because that person was 65 years of age or older.                                             
27    * Sec. 6. AS 13.26.165 is amended to read:                                                                         
28            Sec. 13.26.165. Protective proceedings. Upon petition and after notice and                                 
29       hearing in accordance with the provisions of AS 13.26.165 - 13.26.315, the court may                              
30       appoint a conservator or issue another [MAKE OTHER] protective order for cause as                             
31       follows:                                                                                                          
01                 (1)  appointment of a conservator or other protective order may be                                      
02       made in relation to the estate and affairs of a minor if the court determines that                                
03                      (A)  a minor owns money or property that requires management                                   
04            or protection that [WHICH] cannot otherwise be provided;                                             
05                      (B)  the minor [,] has or may have business affairs that                                   
06            [WHICH] may be jeopardized or prevented by the status of being a minor; [,]                              
07            or                                                                                                           
08                      (C)  [THAT] funds are needed for the minor's support and                                       
09            education and [THAT] protection is necessary or desirable to obtain or provide                               
10            funds;                                                                                                       
11                 (2)  appointment of a conservator or other protective order may be                                      
12       made in relation to the estate and affairs of a person if the court determines that                               
13                      (A)  the person is unable to manage the person's property and                                      
14            affairs effectively for reasons such as mental illness, mental deficiency,                                   
15            physical illness or disability, advanced age, chronic use of drugs, chronic                                  
16            intoxication, fraud, confinement, detention by a foreign power, or                                       
17            disappearance; and                                                                                           
18                      (B)  the person has property that [WHICH] will be wasted or                                    
19            dissipated unless proper management is provided, or that funds are needed for                                
20            the support, care, and welfare of the person or those entitled to be supported by                        
21            the person and [THAT] protection is necessary or desirable to obtain or                                      
22            provide funds.                                                                                               
23    * Sec. 7. AS 13.26.180(a) is amended to read:                                                                      
24            (a)  The person to be protected, a person's attorney or other legal                                      
25       representative, any person who is interested in the estate, affairs, or welfare of the                    
26       person to be protected, including a parent, guardian, [OR] custodian, or caregiver, the                       
27       Department of Health and Social Services, or any person who would be adversely                                
28       affected by lack of effective management of the property and affairs of the person to                             
29       be protected, may petition for the appointment of a conservator or for other                                      
30       appropriate protective order.                                                                                     
31    * Sec. 8. AS 13.26.180 is amended by adding a new subsection to read:                                              
01            (c)  The petition may include a request for temporary conservatorship as                                     
02       provided in AS 13.26.206 if it appears that the respondent's property is likely to be                             
03       wasted or dissipated during the pendency of the conservatorship proceeding. A request                             
04       for temporary conservatorship must specify the facts that cause the petitioner to                                 
05       believe that a temporary conservatorship is necessary.                                                            
06    * Sec. 9. AS 13.26.185 is amended by adding a new subsection to read:                                              
07            (c)  This section does not apply to a petition or order for an ex parte protective                           
08       order filed under AS 13.26.207 or a temporary protective order filed under                                        
09       AS 13.26.208.                                                                                                     
10    * Sec. 10. AS 13.26 is amended by adding new sections to read:                                                     
11            Sec. 13.26.206. Temporary conservators. (a) If, during the pendency of an                                  
12       initial petition for conservatorship, it appears that the respondent is in need of a                              
13       protective order to protect the respondent against waste or dissipation of funds or                               
14       property, or to obtain funds that are needed for the immediate support, care, and                                 
15       welfare of the respondent or persons entitled to be supported by the respondent, and                              
16       the respondent is not capable of protecting the respondent's funds or property or                                 
17       obtaining the funds that are needed to support the respondent or persons whom the                                 
18       respondent is required to support, the petitioner may request the appointment of a                                
19       temporary conservator to authorize the protection or to obtain the necessary funds. The                           
20       request must state the reasons and factual basis for the request. The petitioner shall                            
21       immediately file the request with the court and serve copies on the respondent and the                            
22       respondent's attorney and other persons as ordered by the court. The court shall                                  
23       appoint an attorney for a respondent who is unrepresented to be at the hearing and                                
24       conduct a hearing within 72 hours after the filing.                                                               
25            (b)  If the court determines that a temporary conservator should be appointed,                               
26       it shall make the appointment and grant to the temporary conservator only the                                     
27       authority that is least restrictive upon the liberty of the respondent and that enables the                       
28       temporary conservator to provide the protection or authority necessary to protect the                             
29       respondent from waste or dissipation of funds or property or to obtain the funds                                  
30       necessary for support.                                                                                            
31            (c)  The temporary conservatorship expires at the time of the appointment of a                               
01       full or partial conservator or on the dismissal of the petition for conservatorship.                              
02            Sec. 13.26.207. Ex parte protective orders. (a) A person who is allowed to                                 
03       file a petition for a protective order under AS 13.26.180(a) may file a petition for an                           
04       ex parte protective order against a person other than the protected person. A petition                            
05       filed on behalf of a protected person by a person other than the protected person must                            
06       be accompanied by proof of service of the petition on the protected person or the                                 
07       person's attorney unless service would cause an immediate threat of harm to the best                              
08       interests of the protected person and the petition includes a written explanation of the                          
09       harm. If the court finds that the petition establishes probable cause that the respondent                         
10       is financially defrauding the petitioner or a person for whose benefit the petitioner                             
11       filed the petition and that, because of the fraud, there has been or is an immediate                              
12       threat of a waste or dissipation of the proposed protected person's funds or other                                
13       property, the court shall ex parte and without notice to the respondent issue a                                   
14       protective order. The petitioner shall certify to the court in writing any effort that the                        
15       petitioner made to provide notice to the respondent.                                                              
16            (b)  An ex parte protective order under this section may                                                     
17                 (1)  grant any protection described in AS 13.26.200;                                                    
18                 (2)  supersede an existing power of attorney;                                                           
19                 (3)  prohibit the respondent from having any direct or indirect contact                                 
20       with the petitioner or other person for whose benefit the petitioner filed the petition;                          
21       and                                                                                                               
22                 (4)  prohibit the respondent from taking any act with respect to the                                    
23       funds or other property of the petitioner or other person for whose benefit the                                   
24       petitioner filed the petition.                                                                                    
25            (c)  An ex parte protective order expires 20 days after it is issued, unless                                 
26       dissolved earlier by the court at the request of the petitioner or respondent and after                           
27       notice and, if requested, a hearing, or on the earlier appointment of a temporary or                              
28       permanent conservator.                                                                                            
29            Sec. 13.26.208. Temporary protective orders; conversions. On application                                   
30       filed with the court before the expiration of a 20-day ex parte protective order issued                           
31       under AS 13.26.207, the court shall schedule a hearing on whether to convert the                                  
01       protective order to a temporary order effective for up to six months. The court shall                             
02       provide to the protected person and the respondent at least 10 days' notice of the                                
03       hearing and the respondent's right to appear and be heard. If the court finds by a                                
04       preponderance of the evidence that the respondent has committed fraud against the                                 
05       petitioner or the person for whose benefit the petition was filed, regardless of whether                          
06       the respondent appears at the hearing, the court may convert the ex parte protective                              
07       order to a temporary protective order effective for up to six months.                                             
08            Sec. 13.26.209. Protective orders; modification; third-party compliance;                                   
09       forms; fees. (a) The petitioner, respondent, or protected person, if the protected person                       
10       is a vulnerable adult, may request modification of a protective order issued under                                
11       AS 13.26.207 - 13.26.209. Except as provided in (b) of this section, if a request is                              
12       made for modification of                                                                                          
13                 (1)  an ex parte protective order issued under AS 13.26.207, the court                                  
14       shall schedule a hearing on three days' notice or on shorter notice as the court may                              
15       prescribe; or                                                                                                     
16                 (2)  a temporary protective order, after notice and hearing under                                       
17       AS 13.26.208, the court shall schedule a hearing within 20 days after the date the                                
18       request is made, except that, if the court finds that the request is meritless on its face,                       
19       the court may deny the request without a hearing.                                                                 
20            (b)  If a request for a modification is made under this section and the                                      
21       respondent raises an issue not raised by the petitioner, the court may allow the                                  
22       petitioner additional time to respond.                                                                            
23            (c)  If the court modifies a protective order, the court shall issue a modified                              
24       order and shall make reasonable efforts to ensure that the order is understood by the                             
25       petitioner, the respondent, and the protected person who are present at the hearing.                              
26            (d)  The court shall cause a copy of a protective order, any related orders, and a                           
27       scheduling order, if any, to be served on the respondent and the protected person and                             
28       have a protective order and any related order delivered to the appropriate local law                              
29       enforcement agency for expedited entry in the central registry under AS 18.65.540.                                
30            (e)  A protective order issued under AS 13.26.207 - 13.26.209 is in addition to                              
31       any other civil or criminal remedy.                                                                               
01            (f)  A third party that has received actual or legal notice of a protective order                            
02       issued under AS 13.26.207 - 13.26.209 shall comply with the order. A third party who                              
03       does not comply with a protective order granted under AS 13.26.207 - 13.26.209 may                                
04       be liable in a civil action to the protected person or the protected person's heirs,                              
05       assigns, or estate for a civil penalty not to exceed $1,000, plus the actual damages,                             
06       costs, and fees associated with the failure to comply with the protective order. A third                          
07       party who does not comply with a protective order granted under AS 13.26.207 -                                    
08       13.26.209 may also be criminally liable under AS 11.56.740 for violating a protective                             
09       order. As used in this section, "actual or legal notice" means delivery by mail or                                
10       facsimile at the most recently known place of residence or business of the third party.                           
11            (g)  The Alaska Court System, after consulting with the Department of Health                                 
12       and Social Services, the office of public advocacy, the office of elder fraud and                                 
13       assistance, the long term care ombudsman, and other interested persons and                                        
14       organizations, shall prepare forms for petitions and protective orders and instructions                           
15       for use of the forms by a person seeking a protective order under AS 13.26.207 -                                  
16       13.26.209. The forms must conform to the Alaska Rules of Probate Procedure and                                    
17       Alaska Rules of Civil Procedure, except that information on the forms may be filled in                            
18       by legible handwriting. The office of the clerk of each superior and district court shall                         
19       make available to the public the forms a person seeking a protective order may need                               
20       and instructions for the use of the forms. The clerk shall provide assistance in                                  
21       completing and filing the forms.                                                                                  
22            (h)  Filing fees may not be charged for a petition under AS 13.26.207, for an                                
23       application under AS 13.26.208, or for a request for modification of a protective order                           
24       under AS 13.26.209(a).                                                                                            
25    * Sec. 11. AS 13.26 is amended by adding a new section to article 4 to read:                                       
26            Sec. 13.26.324. Definitions. In AS 13.26.165 - 13.26.324, unless the context                               
27       requires otherwise, "fraud" means                                                                                 
28                 (1)  robbery, extortion, and coercion under AS 11.41.500 - 11.41.530;                                   
29                 (2)  offenses against property under AS 11.46.100 - 11.46.740; or                                       
30                 (3)  exploitation of another person or another person's resources for                                   
31       personal profit or advantage if no significant benefit accrues to the person who is                               
01       exploited.                                                                                                        
02    * Sec. 12. AS 18.65.530(a) is amended to read:                                                                     
03            (a)  Except as provided in (b) or (c) of this section, a peace officer, with or                              
04       without a warrant, shall arrest a person if the officer has probable cause to believe the                         
05       person has, either in or outside the presence of the officer, within the previous 12                              
06       hours,                                                                                                            
07                 (1)  committed domestic violence, except an offense under                                               
08       AS 11.41.100 - 11.41.130, whether the crime is a felony or a misdemeanor;                                         
09                 (2)  committed the crime of violating a protective order in violation of                                
10       AS 11.56.740(a)(1) or (2) [AS 11.56.740];                                                                     
11                 (3)  violated a condition of release imposed under AS 12.30.016(e) or                                   
12       (f) or 12.30.027.                                                                                                 
13    * Sec. 13. AS 18.65.540(a) is amended to read:                                                                     
14            (a)  The Department of Public Safety shall maintain a central registry of                                    
15       protective orders issued by or filed with a court of this state under AS 13.26.207 -                          
16       13.26.209, AS 18.65.850 - 18.65.870, or AS 18.66.100 - 18.66.180. The registry must                       
17       include, for each protective order, the names of the petitioner and respondent, their                     
18       dates of birth, and the conditions and duration of the order. The registry shall retain a                         
19       record of the protective order after it has expired.                                                              
20    * Sec. 14. AS 18.65.540(b) is amended to read:                                                                     
21            (b)  A peace officer receiving a protective order from a court under                                         
22       AS 13.26.207, 13.26.208, AS 18.65.850 - 18.65.855, or AS 18.66.100 - 18.66.180, a                         
23       modified order issued under AS 13.26.209, AS 18.65.860, or AS 18.66.120, or an                            
24       order dismissing a protective order shall [, MUST] take reasonable steps to ensure that                       
25       the order, modified order, or dismissal is entered into the central registry within 24                            
26       hours after being received.                                                                                       
27    * Sec. 15. AS 44.21.415(g) is amended to read:                                                                     
28            (g)  In this section,                                                                                        
29                 (1)  "fraud" means                                                                                      
30                      (A)  robbery, extortion, and coercion under AS 11.41.500 -                                         
31            11.41.530;                                                                                                   
01                      (B)  [THEFT AND RELATED] offenses against property                                             
02            under AS 11.46.100 - 11.46.740; or                                                                           
03                      (C)  exploitation of another person or another person's resources                                  
04            for personal profit or advantage with no significant benefit accruing to the                                 
05            person who is exploited;                                                                                     
06                 (2)  "older Alaskan" means a person residing in the state who is 60                                     
07       years of age or older.                                                                                            
08    * Sec. 16. AS 47.24.010(a) is amended to read:                                                                     
09            (a)  Except as provided in (e) and (f) of this section, the following persons                                
10       who, in the performance of their professional duties, have reasonable cause to believe                            
11       that a vulnerable adult suffers from undue influence, abandonment, exploitation,                              
12       abuse, neglect, or self-neglect shall, not later than 24 hours after first having cause for                       
13       the belief, report the belief to the department's central information and referral service                        
14       for vulnerable adults in the office of the department that handles adult protective                           
15       services:                                                                                                     
16                 (1)  a physician or other licensed health care provider;                                                
17                 (2)  a mental health professional as defined in AS 47.30.915(11) and                                    
18       including a marital and family therapist licensed under AS 08.63;                                                 
19                 (3)  a pharmacist;                                                                                      
20                 (4)  an administrator or employee of a nursing home, residential care,                          
21       or health care facility;                                                                                          
22                 (5)  a guardian or conservator;                                                                         
23                 (6)  a police officer;                                                                                  
24                 (7)  a village public safety officer;                                                                   
25                 (8)  a village health aide;                                                                             
26                 (9)  a social worker;                                                                                   
27                 (10)  a member of the clergy;                                                                           
28                 (11)  a staff employee of a project funded by the Department of                                         
29       Administration for the provision of services to older Alaskans, the Department of                                 
30       Health and Social Services, or the Council on Domestic Violence and Sexual Assault;                               
31                 (12)  an employee of a personal care or home health aide program;                                       
01                 (13)  an emergency medical technician or a mobile intensive care                                        
02       paramedic;                                                                                                        
03                 (14)  a caregiver of the vulnerable adult;                                                              
04                 (15)  a certified nurse aide;                                                                       
05                 (16)  an educator or administrative staff member of a public or                                     
06       private educational institution.                                                                              
07    * Sec. 17. AS 47.24.010(b) is amended to read:                                                                     
08            (b)  A report made under this section may include the name and address of the                                
09       reporting person and must include                                                                                 
10                 (1)  the name and contact information [ADDRESS] of the vulnerable                                   
11       adult;                                                                                                            
12                 (2)  information relating to the nature and extent of the undue                                     
13       influence, abandonment, exploitation, abuse, neglect, or self-neglect;                                        
14                 (3)  other information that the reporting person believes might be                                      
15       helpful in an investigation of the case or in providing protection for the vulnerable                             
16       adult.                                                                                                            
17    * Sec. 18. AS 47.24.010(c) is amended to read:                                                                     
18            (c)  The department or its designees shall report to the Department of Law any                               
19       person required by (a) of this section to report who fails to comply with this section. A                         
20       person listed in (a) of this section who, because of the circumstances, should have had                           
21       reasonable cause to believe that a vulnerable adult suffers from undue influence,                             
22       abandonment, exploitation, abuse, neglect, or self-neglect but who knowingly fails to                             
23       comply with this section is guilty of a class B misdemeanor. If a person convicted                                
24       under this section is a member of a profession or occupation that is licensed, certified,                         
25       or regulated by the state, the court shall notify the appropriate licensing, certifying, or                       
26       regulating entity of the conviction.                                                                              
27    * Sec. 19. AS 47.24.010(d) is amended to read:                                                                     
28            (d)  This section does not prohibit a person listed in (a) of this section, or any                           
29       other person, from reporting cases of undue influence, abandonment, exploitation,                             
30       abuse, neglect, or self-neglect of a vulnerable adult that have come to the person's                              
31       attention in the person's nonoccupational capacity. This section does not prohibit                            
01       any other person from reporting a harm under this section.                                                    
02    * Sec. 20. AS 47.24.010(e) is amended to read:                                                                     
03            (e)  If a person making a report under this section believes that immediate                                  
04       action is necessary to protect the vulnerable adult from imminent risk of serious                                 
05       physical harm due to undue influence, abandonment, exploitation, abuse, neglect, or                           
06       self-neglect and the reporting person cannot immediately contact the department's                                 
07       central information and referral service for vulnerable adults, the reporting person                              
08       shall [MAY] make the report to a police officer or a village public safety officer. The                       
09       police officer or village public safety officer shall take immediate action to protect the                        
10       vulnerable adult and shall, within 24 hours after receiving the report of harm [AT                            
11       THE EARLIEST OPPORTUNITY], notify the department. A person may not bring an                                       
12       action for damages against a police officer, a village public safety officer, the state, or                   
13       a political subdivision of the state based on a decision under this subsection to take or                         
14       not to take immediate action to protect a vulnerable adult. If a decision is made under                           
15       this subsection to take immediate action to protect a vulnerable adult, a person may                              
16       not bring an action for damages based on the protective actions taken unless the                                  
17       protective actions were performed with gross negligence or intentional misconduct;                                
18       damages awarded in the action may include only direct economic compensatory                                       
19       damages for personal injury.                                                                                      
20    * Sec. 21. AS 47.24.010(f) is amended to read:                                                                     
21            (f)  A person listed in (a) of this section who reports to the long term care                                
22       ombudsman under AS 47.62.015, or to the Department of Health and Social Services,                                 
23       that a vulnerable adult has been unduly influenced, abandoned, exploited, abused, or                          
24       neglected in an out-of-home care facility is considered to have met the duty to report                            
25       under (a) of this section.                                                                                        
26    * Sec. 22. AS 47.24.010 is amended by adding new subsections to read:                                              
27            (i)  A person required to report under this section who makes the report to the                              
28       person's job supervisor or to another individual working for the entity that employs the                          
29       person is not relieved of the obligation to make the report to the department as                                  
30       required under (a) of this section.                                                                               
31            (j)  A person who recklessly makes a false report under this section is civilly                              
01       liable for actual damages suffered by the person who is the subject of the report.                                
02    * Sec. 23. AS 47.24.013(a) is amended to read:                                                                     
03            (a)  If a report received under AS 47.24.010 pertains to [REGARDS] the                                   
04       undue influence, abandonment, exploitation, abuse, neglect, or self-neglect of a                              
05       vulnerable adult who is 60 years of age or older that is alleged to have been committed                           
06       by or to have resulted from the negligence of the staff or a volunteer of an out-of-                              
07       home care facility, including a facility licensed under AS 47.32, in which the                                    
08       vulnerable adult resides, the department shall transfer the report for investigation to                           
09       the long term care ombudsman under AS 47.62.015.                                                                  
10    * Sec. 24. AS 47.24.013(b) is amended to read:                                                                     
11            (b)  The department shall investigate a report received under AS 47.24.010                                   
12       regarding the undue influence, abandonment, exploitation, abuse, neglect, or self-                            
13       neglect of a vulnerable adult who is less than 60 years of age that is alleged to have                            
14       been committed by or to have resulted from the negligence of the staff or a volunteer                             
15       of an out-of-home care facility in which the vulnerable adult resides.                                            
16    * Sec. 25. AS 47.24.013(c) is amended to read:                                                                     
17            (c)  Upon receipt of a report under (a) or (b) of this section, the long term care                           
18       ombudsman and the department shall                                                                                
19                 (1)  conduct an investigation as appropriate under AS 47.62.015 or this                                 
20       title, respectively;                                                                                              
21                 (2)  coordinate and cooperate in their responses to and investigations of                               
22       the report if their jurisdictions overlap;                                                                        
23                 (3)  provide the results of their actions or investigations to the central                              
24       information and referral service of the office of the department that handles adult                       
25       protective services within 60 days after the receipt of the report.                                           
26    * Sec. 26. AS 47.24.013(d) is amended to read:                                                                     
27            (d)  If the long term care ombudsman receives directly a report regarding the                                
28       undue influence, abandonment, exploitation, abuse, neglect, or self-neglect of a                              
29       vulnerable adult in an out-of-home care facility, the ombudsman shall provide the                                 
30       report, and the results of the ombudsman's actions or investigations regarding the                                
31       report, to the central information and referral service of the office of the department                       
01       that handles adult protective services. The department may investigate the report as                          
02       described in AS 47.24.015 if the department determines that action is appropriate.                                
03    * Sec. 27. AS 47.24.015(a) is amended to read:                                                                     
04            (a)  Upon the department's receipt of a report under AS 47.24.010 that is not                                
05       transferred under AS 47.24.013, the department, or its designee, shall promptly initiate                          
06       an investigation to determine whether the vulnerable adult who is the subject of the                              
07       report suffers from undue influence, abandonment, exploitation, abuse, neglect, or                            
08       self-neglect. The department, or its designee, shall conduct a face-to-face interview                             
09       with the subject of the report unless that person is unconscious or the department, or                            
10       its designee, has determined that a face-to-face interview could further endanger the                             
11       vulnerable adult.                                                                                                 
12    * Sec. 28. AS 47.24.015(c) is amended to read:                                                                     
13            (c)  The department [,] or its designee [,] shall immediately terminate an                                   
14       investigation under this section upon the request of the vulnerable adult who is the                              
15       subject of the report made under AS 47.24.010. However, the department or its                                     
16       designee may not terminate the investigation if the investigation to that point has                               
17       resulted in probable cause to believe that the vulnerable adult is in need of protective                          
18       services and the request is made personally by the vulnerable adult and the vulnerable                            
19       adult is not competent to make the request on the adult's own behalf, or the request is                           
20       made by the vulnerable adult's guardian, attorney-in-fact, or surrogate decision maker                            
21       and that person is the alleged perpetrator of the undue influence, abandonment,                               
22       exploitation, abuse, or neglect of the vulnerable adult and is being investigated under                           
23       this chapter. If the department has probable cause to believe that the vulnerable adult                           
24       is in need of protective services,                                                                                
25                 (1)  the department may petition the court as set out in AS 47.24.019;                                  
26                 (2)  the department or its designee may refer the report made to the                                    
27       department under AS 47.24.010 to a police officer for criminal investigation; or                                  
28                 (3)  in cases involving fraud, the department or its designee may refer                                 
29       the report made to the department under AS 47.24.010 to the office of public advocacy                             
30       for investigation; in this paragraph, "fraud" has the meaning given in AS 13.26.324                           
31       [AS 44.21.415].                                                                                                   
01    * Sec. 29. AS 47.24.015 is amended by adding new subsections to read:                                              
02            (h)  In conducting an investigation under this section, the department may issue                             
03       subpoenas, conduct interviews, and examine any health care or financial records                                   
04       related to a vulnerable adult. The department may seek a court order to enforce a                                 
05       subpoena.                                                                                                         
06            (i)  A person may not interfere with the department in the performance of its                                
07       investigation under this section, including interfering with the department's access to                           
08       the vulnerable adult.                                                                                             
09            (j)  Notwithstanding any other provision of law, the office of the department                                
10       that handles adult protective services shall have access to any information compiled or                           
11       retained by other divisions in the department, regardless of the nature of the                                    
12       information or whether the information is considered confidential, to assist in                                   
13       administering the provisions of this chapter.                                                                     
14            (k)  The department may audiotape or videotape an interview of a vulnerable                                  
15       adult if the adult has the capacity to consent and gives that consent. The department                             
16       shall document the consent in its investigative file. The department may not audiotape                            
17       or videotape an interview of a vulnerable adult who lacks the capacity to consent.                                
18            (l)  The department shall provide for the training of investigators who                                      
19       investigate reports of harm under this section. Training must include instruction in                              
20       federal, state, and local laws and policies of the department related to vulnerable                               
21       adults, and in investigative techniques. The department may require other appropriate                             
22       training.                                                                                                         
23            (m)  In this section, "financial records" includes financial records related to the                          
24       vulnerable adult that are maintained by any person.                                                               
25    * Sec. 30. AS 47.24.016(a) is amended to read:                                                                     
26            (a)  If the department determines under AS 47.24.015 that a vulnerable adult is                              
27       in need of protective services, but the department cannot obtain the vulnerable adult's                           
28       consent to receive the services because the vulnerable adult is unable to consent or                              
29       lacks decision making capacity, and has no guardian, conservator, [OR] attorney-in-                           
30       fact, trustee, or surrogate for health care decisions under AS 13.52.030 to serve as                          
31       the vulnerable adult's surrogate decision maker, the department may select from the                               
01       following list, in the order of priority listed, an individual who is willing to be the                           
02       vulnerable adult's surrogate decision maker for the purpose of deciding whether to                                
03       consent to the vulnerable adult's receipt of protective services:                                                 
04                 (1)  the vulnerable adult's spouse, unless                                                              
05                      [(A)  THE VULNERABLE ADULT AND THE SPOUSE                                                          
06            HAVE SEPARATE DOMICILES; OR                                                                                  
07                      (B)]  the vulnerable adult or the spouse have initiated divorce,                               
08            [OR] dissolution, or legal separation proceedings;                                                       
09                 (2)  an individual who lives with the vulnerable adult in a spousal                                     
10       relationship or as a domestic partner and who is 18 years of age or older;                                        
11                 (3)  a son or daughter of the vulnerable adult who is 18 years of age or                                
12       older;                                                                                                            
13                 (4)  a parent of the vulnerable adult;                                                                  
14                 (5)  a brother or sister of the vulnerable adult who is 18 years of age or                              
15       older; or                                                                                                         
16                 (6)  a close friend or relative of the vulnerable adult who is 18 years of                              
17       age or older.                                                                                                     
18    * Sec. 31. AS 47.24.016(b) is amended to read:                                                                     
19            (b)  An individual from the list in (a) of this section may not be selected as a                             
20       surrogate decision maker if                                                                                       
21                 (1)  the department determines that individual does not possess decision                                
22       making capacity; or                                                                                               
23                 (2)  there are allegations that individual is a perpetrator of the undue                            
24       influence, abandonment, exploitation, abuse, or neglect of the vulnerable adult.                              
25    * Sec. 32. AS 47.24.016(d) is amended to read:                                                                     
26            (d)  The department may not continue to provide protective services to a                                     
27       vulnerable adult based on the consent of a surrogate decision maker serving under this                            
28       section or AS 13.52.030 if the department determines that the vulnerable adult has                            
29       become able to consent or has regained decision making capacity since the surrogate's                             
30       consent was given. The department may continue protective services to a vulnerable                                
31       adult who has become able to consent or has regained decision making capacity only                                
01       if the vulnerable adult consents.                                                                                 
02    * Sec. 33. AS 47.24.017(a) is amended to read:                                                                     
03            (a)  If the department determines under AS 47.24.015 that a vulnerable adult is                              
04       in need of protective services and [EITHER] the vulnerable adult, the vulnerable                                  
05       adult's guardian, conservator, [OR] attorney-in-fact, trustee, [OR] a surrogate                           
06       decision maker selected under AS 47.24.016, or a surrogate for health care                                    
07       decisions under AS 13.52.030 consents to receipt of the protective services, and to                           
08       the extent that resources are available, the department shall ensure that the protective                          
09       services for the vulnerable adult are provided by the department or its designee within                           
10       10 working days after the department received the report under AS 47.24.010                                       
11       regarding the undue influence, abandonment, exploitation, abuse, neglect, or self-                            
12       neglect of the vulnerable adult. However, if circumstances beyond the control of the                              
13       department or the department's designee make it impossible to provide the protective                              
14       services within the 10 working days, the department shall ensure that the services are                            
15       provided as soon as possible after that time.                                                                     
16    * Sec. 34. AS 47.24.019(c) is amended to read:                                                                     
17            (c)  If a vulnerable adult who has consented to receive protective services, or                              
18       on whose behalf consent to receive protective services has been given, is prevented by                            
19       any person [A CAREGIVER, GUARDIAN, ATTORNEY-IN-FACT, OR                                                       
20       SURROGATE DECISION MAKER] from receiving those services, the department                                           
21       may petition the superior court for an injunction restraining the person                                      
22       [CAREGIVER, GUARDIAN, ATTORNEY-IN-FACT, OR SURROGATE                                                              
23       DECISION MAKER] from interfering with the provision of protective services to the                                 
24       vulnerable adult.                                                                                                 
25    * Sec. 35. AS 47.24.050 is amended to read:                                                                        
26            Sec. 47.24.050. Confidentiality of reports. (a) Investigation reports and                                  
27       reports of the undue influence, abandonment, exploitation, abuse, neglect, or self-                           
28       neglect of a vulnerable adult filed under this chapter are confidential and are not                               
29       subject to public inspection and copying under AS 40.25.110 - 40.25.125. However,                                 
30       under [IN ACCORDANCE WITH] this chapter and regulations adopted under this                                    
31       chapter, investigation reports may be used by appropriate agencies or individuals                                 
01       inside and outside the state, in connection with investigations or judicial proceedings                           
02       involving the undue influence, abandonment, exploitation, abuse, neglect, or self-                            
03       neglect of a vulnerable adult.                                                                                    
04            (b)  The department shall disclose a report of the undue influence,                                      
05       abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult if the                           
06       vulnerable adult who is the subject of the report or the vulnerable adult's guardian,                             
07       conservator, attorney-in-fact, trustee, or surrogate decision maker consents in                           
08       writing. The department may not disclose a report of the undue influence,                                     
09       abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult to the                           
10       vulnerable adult's guardian, conservator, attorney-in-fact, trustee, or surrogate                         
11       decision maker if that person is an alleged perpetrator of the undue influence,                               
12       abandonment, exploitation, abuse, or neglect of the vulnerable adult and is being                                 
13       investigated under this chapter. The department shall, upon request, disclose the                                 
14       number of verified reports of undue influence, abandonment, exploitation, abuse,                              
15       neglect, or self-neglect of a vulnerable adult that occurred at an institution that                               
16       provides care for vulnerable adults or that were the result of actions or inactions of a                          
17       public home care provider.                                                                                        
18    * Sec. 36. AS 47.24.130 is amended to read:                                                                        
19            Sec. 47.24.130. Treatment through spiritual means. This chapter may not be                                 
20       construed to mean that a person is unduly influenced, abused, neglected, self-                                
21       neglected, vulnerable, unable to consent, abandoned, exploited, or in need of                                     
22       emergency or protective services for the sole reason that the person relies on or is                              
23       being furnished treatment by spiritual means through prayer alone under [IN                                   
24       ACCORDANCE WITH] the tenets and practices of a church or religious                                                
25       denomination of which the person is a member or adherent, if [PROVIDED THAT]                                  
26       the person consents to the treatment through spiritual means only and the treatment is                            
27       administered by an accredited practitioner of the church or religious denomination. In                            
28       this section, "church or religious denomination" has the meaning given to "religious                              
29       organization" in AS 05.15.690.                                                                                    
30    * Sec. 37. AS 47.24.900(2) is amended to read:                                                                     
31                 (2)  "abuse" means                                                                                      
01                      (A)  the [WILFUL,] intentional, knowing, or reckless                                           
02            nonaccidental [,] and nontherapeutic infliction of physical pain, injury, [OR]                               
03            mental or emotional distress, or fear, including coercion and intimidation;                          
04            or                                                                                                           
05                      (B)  sexual assault under AS 11.41.410 or 11.41.420;                                               
06    * Sec. 38. AS 47.24.900(3) is amended to read:                                                                     
07                 (3)  "caregiver" means                                                                                  
08                      (A)  a person who is providing care to a vulnerable adult as a                                     
09            result of a family relationship, or who has assumed some or all responsibility                           
10            for the care of a vulnerable adult voluntarily, by contract, as an employee of a                         
11            business that provides care in an adult's home, or by court order; or                                    
12                      (B)  an employee of an out-of-home care facility who provides                                      
13            care to one or more vulnerable adults;                                                                       
14    * Sec. 39. AS 47.24.900(4) is amended to read:                                                                     
15                 (4)  "decision making capacity" means the ability to understand and                                     
16       appreciate the nature and consequences of a decision and the ability to reach and                                 
17       communicate an informed decision; in this paragraph, "informed decision"                                      
18       includes a decision made by the vulnerable adult that is free from undue                                      
19       influence;                                                                                                    
20    * Sec. 40. AS 47.24.900(7) is amended to read:                                                                     
21                 (7)  "exploitation"                                                                                     
22                      (A)  means unjust or improper use of another person or another                                 
23            person's resources for one's own profit or advantage, with or without the                                
24            person's consent; and                                                                                    
25                      (B)  includes acts by a person who stands in a position of                                     
26            trust or confidence with a vulnerable adult or who knows or should know                                  
27            that the vulnerable adult lacks the capacity to consent that involve                                     
28            obtaining profit or advantage through undue influence, deception, fraud,                                 
29            intimidation, or breach of fiduciary duty; in this subparagraph, "fraud"                                 
30            has the meaning given in AS 13.26.324(1) and (2);                                                        
31    * Sec. 41. AS 47.24.900(9) is amended to read:                                                                     
01                 (9)  "neglect" means the intentional, knowing, or reckless failure by a                             
02       caregiver to provide essential care or services or access to essential care or services                       
03       or to carry out a prescribed treatment plan necessary to maintain the physical and                            
04       mental health of the vulnerable adult when the vulnerable adult is unable to provide                          
05       or obtain the essential care or services or to carry out the prescribed treatment                             
06       plan on the vulnerable adult's own behalf; in this paragraph, "essential care or                              
07       services" includes food, clothing, shelter, medical care, and supervision;                                    
08    * Sec. 42. AS 47.24.900(11) is amended to read:                                                                    
09                 (11)  "protective services" means services that are intended to prevent                                 
10       or alleviate harm resulting from undue influence, abandonment, exploitation, abuse,                           
11       neglect, or self-neglect and that are provided to a vulnerable adult in need of                                   
12       protection; in this paragraph, "services" ["PROTECTIVE SERVICES"] includes                                    
13                      (A)  protective placement;                                                                     
14                      (B)  applying for or obtaining public benefits;                                                
15                      (C)  obtaining health care services and supplies;                                              
16                      (D)  staying financial transactions;                                                           
17                      (E)  petitioning for a protective order under AS 13.26.165 -                                   
18            13.26.209;                                                                                               
19                      (F)  assisting with personal hygiene;                                                          
20                      (G)  obtaining food and clothing;                                                              
21                      (H)  protection from physical and emotional abuse;                                             
22                      (I)  obtaining representative payee services; and                                              
23                      (J)  coordinating protective services;                                                         
24    * Sec. 43. AS 47.24.900(15) is amended to read:                                                                    
25                 (15)  "unable to consent" means refusal to, or inability to, accept                                     
26       services because                                                                                                  
27                      (A)  the person is an incapacitated person or apparently is an                                     
28            incapacitated person;                                                                                        
29                      (B)  of coercion by or fear of reprisal from the perpetrator of                                    
30            undue influence, abandonment, exploitation, abuse, or neglect;                                           
31                      (C)  of dependency on the perpetrator of undue influence,                                      
01            abandonment, exploitation, abuse, or neglect for services, care, or support; or                              
02                      (D)  of an inability to perceive that refusal to consent results in                                
03            an imminent and substantial danger of loss, waste, or dissipation of income                              
04            or assets, eviction, physical or mental harm to self or others, or death [OR                             
05            IRREPARABLE HARM TO SELF OR OTHERS];                                                                         
06    * Sec. 44. AS 47.24.900(16) is amended to read:                                                                    
07                 (16)  "vulnerable adult" means a person 18 years of age or older who,                                   
08       because of incapacity, mental illness, mental deficiency, physical illness or                                 
09       disability, advanced age, chronic use of drugs, chronic intoxication, fraud,                                  
10       confinement, or disappearance [PHYSICAL OR MENTAL IMPAIRMENT], is                                             
11       unable to meet the person's own needs or to seek help without assistance.                                         
12    * Sec. 45. AS 47.24.900 is amended by adding new paragraphs to read:                                               
13                 (17)  "deception" means creating, reinforcing, or failing to correct a                                  
14       false impression or preventing another person from acquiring information that would                               
15       affect the person's judgment regarding a transaction;                                                             
16                 (18)  "fiduciary duty" means the duty of a third party who stands in a                                  
17       position of trust or confidence with another person, including a vulnerable adult, to act                         
18       with due regard for the benefit and interest of that person;                                                      
19                 (19)  "financial institution" means an institution subject to state or                                  
20       federal banking or financial regulations, including                                                               
21                      (A)  a broker-dealer;                                                                              
22                      (B)  a commercial bank;                                                                            
23                      (C)  a savings bank;                                                                               
24                      (D)  a credit union;                                                                               
25                      (E)  a premium finance company;                                                                    
26                      (F)  a small loan company;                                                                         
27                      (G)  a bank holding company;                                                                       
28                      (H)  a financial holding company;                                                                  
29                      (I)  a trust company;                                                                              
30                      (J)  a savings and loan association;                                                               
31                      (K)  a deferred deposit advance licensee;                                                          
01                      (L)  an investment bank;                                                                           
02                      (M)  an insurance company subject to regulation by AS 21;                                          
03                      (N)  a licensee subject to regulation by AS 21; and                                                
04                      (O)  an investment adviser;                                                                        
05                 (20)  "person who stands in a position of trust or confidence" means a                                  
06       person who                                                                                                        
07                      (A)  is a relative by blood or marriage;                                                           
08                      (B)  is a joint tenant or tenant in common;                                                        
09                      (C)  has a legal or fiduciary relationship; or                                                     
10                      (D)  is a person who has been entrusted with or has assumed                                        
11            responsibility for the use or management of the vulnerable adult's assets or                                 
12            income;                                                                                                      
13                 (21)  "undue influence" means the use by a person who stands in a                                       
14       position of trust or confidence of the person's role, relationship, or authority to                               
15       wrongfully exploit the trust, dependency, or fear of a vulnerable adult to gain control                           
16       over the decision making of the vulnerable adult, including decision making related to                            
17       finances, property, residence, and health care.                                                                   
18    * Sec. 46. The uncodified law of the State of Alaska is amended by adding a new section to                         
19 read:                                                                                                                   
20            DIRECT COURT RULE AMENDMENT. Rule 12(h), Alaska Rules of                                                     
21       Criminal Procedure, is amended to read:                                                                           
22            (h)  Continuance of Trial. A motion for continuance of a trial date will be                                
23       granted by the court only for cause shown. In deciding whether to grant the motion,                           
24       the court shall consider the victim's circumstances and the effect the delay would                            
25       have on the victim, particularly a victim of advanced age or extreme youth. The                               
26       court shall place its findings on the record. The presiding judge of a judicial district                      
27       may require that a visiting or pro tem judge obtain approval from the presiding judge                             
28       before granting any continuance of trial.                                                                         
29    * Sec. 47. The uncodified law of the State of Alaska is amended by adding a new section to                         
30 read:                                                                                                                   
31            DIRECT COURT RULE AMENDMENT. Rule 45(a), Alaska Rules of                                                     
01       Criminal Procedure, is amended to read:                                                                           
02            (a)  Priorities in Scheduling Criminal Cases. The court shall provide for                                  
03       placing criminal proceedings upon appropriate calendars. Preference shall be given to                             
04       criminal proceedings and the trial of defendants in custody shall be given preference                             
05       over other criminal cases. The court shall consider the circumstances of the victim,                          
06       particularly a victim of advanced age or extreme youth, in setting the trial date.                            
07       Trial dates in criminal cases in the superior court shall be set at the time of                                   
08       arraignment, and if a trial date is thereafter vacated, the trial shall be immediately set                        
09       for a date certain.                                                                                               
10    * Sec. 48. The uncodified law of the State of Alaska is amended by adding a new section to                         
11 read:                                                                                                                   
12       INDIRECT COURT RULE AMENDMENTS. (a) AS 13.26.207, 13.26.208, and                                                  
13 13.26.209(a) - (g), enacted by sec. 10 of this Act, have the effect of amending Rule 17, Alaska                         
14 Rules of Probate Procedure, relating to conservatorships and protective proceedings, by                                 
15 allowing ex parte and temporary orders and modifications of orders to be issued related to                              
16 protecting the assets of a person otherwise subject to AS 13.26.165 from financial                                      
17 exploitation.                                                                                                           
18       (b)  AS 13.26.209(h), enacted by sec. 10 of this Act, has the effect of amending Rule                             
19 9, Alaska Rules of Administration, by requiring that filing fees may not be charged for a                               
20 petition for an ex parte protective order under AS 13.26.207, for an application for a                                  
21 temporary order under AS 13.26.208, or for modification of a protective order under                                     
22 AS 13.26.209(a), enacted by sec. 10 of this Act.                                                                        
23       (c)  AS 13.26.206, enacted by sec. 10 of this Act, has the effect of amending Rule 77,                            
24 Alaska Rules of Civil Procedure, by requiring a hearing within 72 hours of the filing of a                              
25 petition for the appointment of a temporary conservator.                                                                
26       (d)  AS 13.26.208, enacted by sec. 10 of this Act, has the effect of amending Rule 77,                            
27 Alaska Rules of Civil Procedure, by providing for a hearing on an application for a temporary                           
28 protective order on 10 days' notice.                                                                                    
29       (e)  AS 13.26.209(a) and (b), enacted by sec. 10 of this Act, have the effect of                                  
30 amending Rule 77, Alaska Rules of Civil Procedure, by providing for a hearing on a request                              
31 for modification of a protective order on 20 days' notice and for modification of an ex parte                           
01 protective order on three days' notice.                                                                                 
02    * Sec. 49. The uncodified law of the State of Alaska is amended by adding a new section to                         
03 read:                                                                                                                   
04       APPLICABILITY. Sections 3 - 5, 46, and 47 of this Act apply to offenses committed                                 
05 on or after the effective date of secs. 3 - 5 of this Act.                                                              
06    * Sec. 50. The uncodified law of the State of Alaska is amended by adding a new section to                         
07 read:                                                                                                                   
08       REVISOR'S INSTRUCTIONS. The revisor of statutes is instructed to change the                                       
09 catch line of                                                                                                           
10            (1)  AS 47.24.010 from "Reports of harm" to "Persons required to report;                                     
11 reports of harm";                                                                                                       
12            (2)  AS 47.24.013 from "Reports of abandonment, exploitation, abuse, neglect,                                
13 or self-neglect of vulnerable adults in out-of-home care facilities" to "Reports of undue                               
14 influence, abandonment, exploitation, abuse, neglect, or self-neglect of vulnerable adults in                           
15 out-of-home care facilities."                                                                                           
16    * Sec. 51. The uncodified law of the State of Alaska is amended by adding a new section to                         
17 read:                                                                                                                   
18       CONDITIONAL EFFECT. (a) AS 13.26.207 and 13.26.209(a) - (g), enacted by sec.                                      
19 10 of this Act, take effect only if sec. 48(a) of this Act receives the two-thirds vote of each                         
20 house required by art. IV, sec. 15, Constitution of the State of Alaska.                                                
21       (b)  AS 13.26.209(h), enacted by sec. 10 of this Act, takes effect only if sec. 48(b) of                          
22 this Act receives the two-thirds vote of each house required by art. IV, sec. 15, Constitution of                       
23 the State of Alaska.                                                                                                    
24       (c)  AS 13.26.206, enacted by sec. 10 of this Act, takes effect only if sec. 48(c) of this                        
25 Act receives the two-thirds vote of each house required by art. IV, sec. 15, Constitution of the                        
26 State of Alaska.                                                                                                        
27       (d)  AS 13.26.208, enacted by sec. 10 of this Act, takes effect only if sec. 48(a) and (d)                        
28 of this Act receive the two-thirds vote of each house required by art. IV, sec. 15, Constitution                        
29 of the State of Alaska.                                                                                                 
30       (e)  AS 13.26.209(a) and (b), enacted by sec. 10 of this Act, take effect only if sec.                            
31 48(e) of this Act receives the two-thirds vote of each house required by art. IV, sec. 15,                              
01 Constitution of the State of Alaska.                                                                                    
02    * Sec. 52. Sections 16 and 20 of this Act take effect September 1, 2012.                                           
03    * Sec. 53. Except as provided in sec. 52 of this Act, this Act takes effect July 1, 2012.                          
New Text Underlined     [DELETED TEXT BRACKETED]