The Committee on Judiciary was called to order at 4:08 p.m., on Tuesday, March 30, 1999. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Mr. Mark Manendo, Vice Chairman

Ms. Sharron Angle

Mr. Greg Brower

Ms. Barbara Buckley

Mr. John Carpenter

Mr. Jerry Claborn

Mr. Tom Collins

Mr. Don Gustavson

Mrs. Ellen Koivisto

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Dennis Nolan

Ms. Genie Ohrenschall

GUEST LEGISLATORS PRESENT:

Assemblywoman Vivian L. Freeman, District 24

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Chairman Anderson stated A.B. 315, the family services bill, was passed in the morning work session. Ms. Lang had advised Chairman Anderson to ask for a separately drafted resolution of the issues to be placed with the Elections, Procedures, and Ethics Committee and avoid the April 9, 1999 deadline and not force the Elections, Procedures, and Ethics Committee to make a hasty decision.

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

Chairman Anderson opened the hearing on A.B. 517.

Assemblywoman Vivian L. Freeman, District 24 testified for A.B. 517. Assemblywoman Freeman introduced Lora E. Myles who was an attorney experienced in adult guardianship and senior issues.

Lora E. Myles, attorney, Carson And Rural Elder Law Program (CARE Law) testified for A.B. 517. The concept of the bill developed from conversations with judges, attorneys, and others who were experienced with elder care issues. The purpose of the bill was to correct some of the problems in the guardianship statutes. The 1997 guardianship statutes were tailored toward minor guardianship and did not address senior citizens’ issues. There had been problems with public guardians and private guardians with their wards. When seniors were wards and suffered from dementia or other debilitating diseases, they were the most unprotected citizens in society.

Ms. Myles reviewed the highlights of the bill: Page 1, section 2, listed the adult ward’s rights. Section 2 began with the statement, "An adult ward is entitled, insofar as his condition permits." Ms. Myles stated Ms. Pyzel, Senior Deputy Attorney General, Human Resources, wanted the phrase, "insofar as his condition permits," removed. Ms. Pyzel’s reasoning was, as the adult ward grew weaker and weaker, "insofar as his condition permits," would allow for a dilution of the adult ward’s rights.

Section 3, addressing the issue of seniors lacking the funds to secure legal representation, provided for a court appointed attorney to represent them in hearings.

Section 4 addressed the issue of having been a medicaid patient, a senior did not have any assets for a funeral. Section 4 would allow a person who attained the age of 60 to set aside $1,500 for the ward’s funeral expenses which would save the county paying for the medicaid patient’s funeral.

Section 5 corrected the language to insure "incompetent" referred to an adult, not a minor.

Section 6 differentiated between an adult and a minor in a "limited capacity."

Section 7 addressed a problem after a minor attained the age of majority.

Chairman Anderson was concerned about removing the phrase on page 1, line 3, "insofar as his condition permits." In a situation of a ward with a heart problem, it would be in the ward’s best interest to be located near a defibrillator and other medical equipment to be used if there was a medical emergency which required the medical equipment to be close to the patient. Ms. Myles responded the court would have full oversight over the guardian’s choices for the ward. Chairman Anderson asked who would attend a court hearing. Ms. Myles responded the guardian, family members, staff of the care facility, friends, and neighbors could attend the court hearing. Chairman Anderson asked Ms. Myles, "You don’t see this amendment damaging the bill as you requested the bill to be drafted." Ms. Miles responded, no, because the court had full oversight concerning the guardian for the ward.

Cynthia A. Pyzel, Senior Deputy Attorney General, Department of Human Resources, testified for A.B. 517. See (Exhibit C). The reason why she suggested the deletion of "insofar as his condition permits" was the rights of the ward needed to be observed when the ward’s capacity diminished. She emphasized the court’s oversight for the ward.

Chairman Anderson asked if there was a "treasure" in the family, could the "treasure" be taken by the state to pay for expenses. Ms. Myles responded in addition to guardianship rules, medicaid rules must be followed. Medicaid did allow the ward to have personal items. Medicaid did not allow more than $2,000 in liquid assets and did not allow certain tangible properties. Medicaid would decide if the family treasure was worth little value and could be given to a family member. If the family treasure was worth a sizable amount of money, it could be sold to a family member with the money from the sale being used to pay medicaid expenses. Chairman Anderson asked if those rules were state medicaid rules. Ms. Myles stated the rules were federal and state medicaid rules.

Chairman Anderson referred to page 2, line 19, stating, "in a pooled account or trust." He asked if there was an accountability problem concerning potential loss. Ms. Myles responded the guardian may be asked to be bonded by the court. The court would protect any disappearance of assets.

Assemblyman Collins asked if the adult ward or the guardian paid for the attorney. Ms. Myles responded the adult ward’s estate paid attorney’s fees. Rarely would the guardian pay for any expenses. Assemblyman Collins asked if an adult ward needed a guardian, would the ward be required to pay his guardian. Ms. Myles responded the ward’s estate would pay for the guardian’s services.

Ms. Myles reviewed section 8 and said the section clarified the language between minors and adults with limited capacity.

Section 9 referred to temporary guardianship where there was an immediate need, medical procedure, or the ward was unable to handle his or her assets. That section was changed in 1997 and required a notification of family members within 24 hours. If the senior did not have their address book or was confused, there would be a problem notifying relatives within 24 hours. The language changes would allow more time to locate and notify relatives.

Chairman Anderson mentioned Assemblyman Carpenter would like to amend the bill to read, "48 hours or as soon as practical." Ms. Lang stated the language used in the morning session was, "without undue delay, but not later than 48 hours after he discovers the existence, identity, and location of the persons entitled to notice pursuant to that section." Chairman Anderson asked the reasoning behind 48 hours. Ms. Myles stated there were time difference problems with relatives living in the eastern time zone or sending a fax to relatives on a Friday which would not be read until Monday.

Section 10 stated the differences between a minor and an adult ward, and who could serve as a guardian. Chairman Anderson asked if the only adult child was convicted of child abuse, what would happen as far as guardianship. Ms. Myles responded a private guardian would be appointed as guardian.

Section 11 referred to the oath of guardianship. Assemblyman Carpenter asked why on page 6, lines 9 through 11 were taken out of section 11. Ms. Myles responded lines 9 through 11 were contained in all petitions filed with the court. Section 11 contained the oath of guardianship. The oath of guardianship did not have a verification clause. The petition to become a guardian had a verification clause. Chairman Anderson asked if there would be any harm by leaving lines 9 through 11 in the bill. Ms. Myles responded the courts would need to look at their oath. The oath might have to be revised.

Ms. Myles stated section 12 differentiated between minor and adults.

Section 13 discussed what a special guardian could and could not do for the ward.

Section 14 clarified the durable power of attorney for health care statutes.

Section 15 changed the filing of an inventory of the ward’s assets. In many situations the ward had limited assets, to request a second inventory increased the cost of guardianship. Section 15 would require an inventory be filed with the permanent guardianship application. Chairman Anderson asked if Ms. Myles viewed the second inventory, 60 days after the filing for the guardianship application, as check for a more accurate inventory. Ms. Myles responded large estates required two inventories to receive the appraisals. Estates valued at $20,000 or less usually would not require two inventories. Assemblyman Carpenter asked about page 6, line 42, "To manage the ward’s property and make gifts or dispositions of it." He was concerned about the disposition of the property with not enough money left in the estate to take care of necessary expenses. Ms. Miles responded the general guardian had the ability to make gifts and dispositions of the estate. The court must approve any gifts or disposition of the estate. The guardian was controlled by the medicaid statutes.

Section 13 complied with the medicaid statutes.

Section 16 listed the reasons for the removal of a guardian and allowed the court to appoint a temporary guardian.

Section 17 did not allow the value of the estate to drop below $5,000. The amount was increased from $1,000 to $5,000 because $5,000 was the cost of one month in a nursing home. The court would have to approve the spending down of the estate.

Section 18 allowed for the petition for termination of the guardianship and the contents of a petition for termination of the guardianship. Section 19 terminated the guardianship if the ward moved out of state. The court would transfer to the court having jurisdiction in the new domicile.

Section 20 increased the value of the estate from $3,000 to $5,000. If the ward’s estate went below $5,000, there would be no need to have an annual accounting to the court. Section 20 allowed for the termination of the guardianship if the ward was in a nursing home when the ward died.

Section 21, added by the Legislative Counsel Bureau, contained the penalties for exploitation and abuse of an older person.

Assemblywoman Leslie asked about section 14 and Mr. Nielsen’s amendment: "A guardian shall not seek to maintain a ward in a mental health facility against his will for more than 72 hours not including Saturdays, Sundays and holidays unless the civil protections, including without limitation, petitions, certifications, notices, procedures, examinations, hearings and orders described in NRS 433A.1150 through NRS 433A 360 are provided." See (Exhibit D). The requirements of such statutes may be provided within the context of the guardianship case." Assemblyman Carpenter was concerned about returning some of the sentences deleted from the bill, and a couple of amendments were added to make sure the estate was not disposed of too early.

Henry W. Cavallera, attorney, testified as a private citizen, for A.B. 517. He stated, "Your parents could be my clients." Senior citizen concerns were very real to him. Mr. Cavallera supported Mr. Nielsen’s amendment. He had to inform his clients if their adult child was living out-of-state, the adult child could not be a guardian to their parent living in Nevada. He proposed an amendment to page 5, line 39, subsection (c). "Except that an out-of-state guardian may be appointed by a court if the ward, while competent, nominated said person to serve." His proposed amendment would allow an adult child who lived out-of-state to serve as the guardian of their parent if their parent, while competent, appointed that adult child as their guardian regardless of where the adult child lived. Chairman Anderson asked Mr. Cavallera to put his amendment in writing.

Chairman Anderson asked Ms. Lang if the new amendment would cause a problem. Ms. Lang responded she would need to review the language of the amendment.

Mr. Cavallera referred to page 6, lines 24 through 26. He was concerned if a senior citizen had a stroke; they should have training to overcome the effects of the stroke even though the senior would not be learning a trade, occupation, or profession. Chairman Anderson asked Mr. Cavallera, if the suggested amendments to section 12 would not be needed. Mr. Cavallera responded, "Correct." Regarding Mr. Carpenter’s question on section 13, Mr. Cavallera stated he would never advise a guardian to make a gift without the court’s authorization.

Assemblywoman Buckley asked Mr. Cavallera if he knew of a certain conflict of interest case in Clark County. Mr. Cavallera was not aware of the case. He mentioned a lawyer was only as good as his last court appearance. A lawyer had to communicate to the judge if there was a possible conflict of interest.

Assemblywoman McClain asked about section 10, page 5, concerning the guardian being a relative. Mr. Cavallera suggested, "The person, while competent, nominated an adult child or a sibling to serve as guardian."

Donald L. Cavallo, Public Administrator/Public Guardian, Washoe County, testified for A.B. 517. Section 2 was a statement of the ward’s rights. In section 2, subsection 5, lines 12 and 13 he was concerned with the language, "whether expressed before or after his incompetence or limited capacity was determined." In section 3, line 12; "must be paid from the estate of the ward or proposed ward to the extent possible, and otherwise by the county," he was concerned with an unfunded mandate. This would cost Washoe County $250,000 and Clark County $800,000 each year in additional legal fees. See (Exhibit E). Chairman Anderson interrupted Mr. Cavallo and asked him if he was in support of the bill. Chairman Anderson reminded Mr. Cavallo the bill had been out since March 12, 1999. Mr. Cavallo had not talked with Ms. Freeman or Ms. Myles.

Continuing, in section 4 Mr. Cavallo wanted the wards to be able to use the $1,500 while the wards were alive to buy clothes instead of the money set aside to pay for their funeral. In sections 5, 6, and 8 the language was cleaned up. In section 9, he had no problem with the 48-hour notice because a number of relatives had taken money from the ward already. In section 17 he wanted the $5,000 figure changed to $3,000 to bring the figure in line with section 20. Chairman Anderson asked Ms. Miles, Ms. Kolkoski, and Mr. Cavallo to meet by Friday, April 2, 1999 to work on language agreeable to all interested parties. Proposed amendments needed to be received by the committee early on April 5, 1999, to place the bill in the April 6, 1999, work session.

Betsy Kolkoski, elder rights attorney, Aging Services Division, Department of Human Resources, testified for A.B. 517. From her experience, there had been a problem in rural counties finding attorneys and guardians to serve the needs of wards. While there was not a problem in urban communities locating attorneys and guardians, rural counties had problems. She supported the provision of attorney’s fees in the bill and the annual review of the guardian plan to remain as independent as possible for the ward. The right to choose their living situation within reason and any estate planning while competent promoted self-determination and independence. In some cases it may promote restoration of health and capacity. The bill disqualified people convicted of elder abuse from serving as a guardian. The bill prohibited experimental, biomedical, and behavioral treatments without a court order. She wanted section 21 deleted because the section was covered under the elder abuse statute. There were civil penalties covered in the 1997 legislative session.

Chairman Anderson closed the hearing on A.B. 517. He reviewed some of the concerns regarding the bill. Mr. Cavallo was concerned with section 17, on line 25 he wanted the amount amended to $3,000. Chairman Anderson and Assemblyman Carpenter had a concern in section 11 with the guardian being required to make a statement "that he will well and faithfully perform the duties of guardian according to law." He thought Mr. Cavallera’s suggestion for an adult child living out-of-state to be the guardian for their parent was valid. He reviewed the change in section 9 from 24 hours to 48 hours to notify the relatives.

Chairman Anderson spoke about the unfunded mandate concerning the hiring of attorneys for a ward to have legal representation at their hearings. Ms. Myles said currently attorneys were appointed to represent wards at hearing. Those appointed attorneys in Washoe County, Clark County, Carson City, and in the rural counties were Title III attorneys. Title III attorneys did not require additional funding other than the funding already provided in the statutes for the funding of the legal services program.

Assemblyman Carpenter was concerned about page 6, line 42, giving the guardian authority to make gifts or dispositions of the ward’s property. On page 7, section 15, Mr. Carpenter wanted two inventories, not one, of the estate. Assemblywoman Buckley asked about placing the bill on the work session. Chairman Anderson stated he wanted to put the bill on the Tuesday, April 6, 1999, work session. Chairman Anderson closed the discussion on A.B. 517.

Chairman Anderson opened the hearing on A.B. 548.

Henry W. Cavallera, attorney, testified as a private citizen for A.B. 548. He stated he had settled the case he was about to share with the committee. He provided highlights on the case. A senior lady sold her home. She was living in a group home and was at fault in a car wreck. She had sold her home for $180,000. If Mr. Cavallera had not been able to settle the lawsuit for a nominal sum, she could have lost her $180,000, been forced to move from the group home, and would have been placed in a nursing home on medicaid at taxpayers’ expense. If the lady was more physically able, she would have had her home which would have exempted the first $125,000 of equity in her home under the Homestead Act. She lost the ability to protect any of her assets because she did not own a home.

Mr. Cavallera said he spoke with the Attorney General’s Office and A.B. 548 was drafted. Section 11 on page 7 protected the first $500,000 in an Individual Retirement Account (IRA). Most of Mr. Cavallera’s clients did not have large IRAs. The money they had acquired was from the sale of their home. He wanted elders in a group home or a nursing home to be protected like they were protected when they were homeowners. Assemblyman Brower asked about the possible abuse of the exemption by a person over 65 trying to hide assets from creditors. Mr. Cavallera answered most of the money originally came from the sale of true assets. If people were protected up to $500,000 in an IRA account, why should people with cash not be protected, too. The person over 65 would have to claim an exemption of the $500,000 that would help to eliminate the abuse. Assemblyman Nolan stated the bill looked good. Chairman Anderson closed the hearing on A.B. 548.

Chairman Anderson opened the hearing on A.B. 649.

Betsy Kolkoski, elder rights attorney, Aging Services Division, testified for A.B. 649. She requested changes in sections 1(a): line 6, delete "welfare division;" 1(d), line 14 delete, "welfare division;" on page 3, section 2, line 22 delete "welfare" and add "aging services;" line 30 delete, "welfare," and insert "aging services;" repeat on lines 37 and 39; and on page 4, lines 4 and line 8 replace "welfare" with "aging services." In anticipation of the elder abuse program being transferred to the Aging Services Division. The Welfare Department would no longer be involved in elder abuse. Chairman Anderson asked what if the transfer did not happen in July. Ms. Kolkoski stated the medicaid policy unit would be part of the Aging Services Division. Assemblywoman Buckley suggested the 2001 legislative session make a ruling for each agency to have only one housekeeping bill. Chairman Anderson stated that as a result of a number of state government agencies reorganizing, each of the "housekeeping bills" became necessary.

Chairman Anderson mentioned the new revised committee calendar for today through April 9, 1999. He wanted the committee to process six bills a day and more bills during the committee work sessions. In the remaining days the committee needed to stay focused. He was concerned with the driving under the influence bills (DUI) to be heard by the committee on the following day.

Chairman Anderson adjourned the committee meeting at 5:51 p.m.

RESPECTFULLY SUBMITTED:

Ken Beaton,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: