Aging, Children and Youth, Legislative & Military Affairs- House
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Bills discussed (5)
| Bill | Title | Sponsor | Status |
|---|---|---|---|
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SB625
· 5 mentions in agenda, chapter, transcript
Matched: “…OGNIZED BY THE CHAIR REGULAR AGENDA Number Sponsor Subtitle SB625 B. Ballinger TO ALLOW A PARENT TO APPOINT A TEMPORARY GUARD…”
|
TO ALLOW A PARENT TO APPOINT A TEMPORARY GUARDIAN FOR HIS OR HER MINOR CHILD … | B. Ballinger | Sine Die adjournment |
|
SB662
Act 945
· 3 mentions in chapter, agenda, transcript
Matched: “SB662 A. Clark TO CREATE THE CHILD WELFARE OMBUDSMAN DIVISION WIT…”
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TO CREATE THE CHILD WELFARE OMBUDSMAN DIVISION WITHIN THE ARKANSAS CHILD ABUSE/RAPE/DOMESTIC VIOLENCE COMMISSION. | A. Clark | Notification that SB662 is now Act 945 |
|
HB1237
· 2 mentions in chapter, agenda
Matched: “HB1237 Petty TO AMEND THE LAW CONCERNING CUSTODY OF A CHILD.”
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TO AMEND THE LAW CONCERNING CUSTODY OF A CHILD. | Petty | Died on House Calendar at Sine Die Adjournment |
|
HB1464
· 2 mentions in chapter, agenda
Matched: “HB1464 Gazaway TO AMEND THE LAW CONCERNING JURISDICTION OVER A PER…”
|
TO AMEND THE LAW CONCERNING JURISDICTION OVER A PERSON SEEKING TO ADOPT A MINOR. | Gazaway | Died on House Calendar at Sine Die Adjournment |
|
HB1805
· 2 mentions in agenda, chapter
Matched: “…ERNING JURISDICTION OVER A PERSON SEEKING TO ADOPT A MINOR. HB1805 Capp TO CREATE A COMMISSION ON THE PREVENTION OF ABUSE OF E…”
|
TO CREATE A COMMISSION ON THE PREVENTION OF ABUSE OF ELDERLY AND VULNERABLE ADULTS. | Capp | Died on House Calendar at Sine Die Adjournment |
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present Senate Bill 625 for Senator Ballinger. I don't see anyone. We will move ahead then to Senate Bill 662. Representative Kapp, I understand you're presenting this to
us this morning. Members, this is six to six, six,
Representative Sarah Capp
Unverified
0:28
two. Thank you, Madam Chair. I thought we were done
with Senator Clark bills, but evidently we're not. This one is an act to create the child welfare ombudsman division within the arkansas child abuse rape domestic violence commission and for other purposes and much of the child welfare ombudsman positions outlined in this bill is modeled after the existing dhs division of youth services ombudsman position dcfs juvenile judges the administrative office of the courts and the public defender commission were involved
in the drafting of this bill, and there is no known opposition. And with that, I will turn it over to Misha Martin to go over the contents of the bill. Thank
Speaker 9
1:15
you, Ms. Martin. You're recognized. Good morning. I'm Misha
Speaker 11
1:17
Martin. I'm the director of the Division of Children and Family Services. So as to the content of the bill, it is a somewhat lengthy bill, but most of the bill, the first several sections are about confidentiality, because if you're going to have a child welfare ombudsman they need to have access to the court to foster care records to
child maltreatment records and so the meat of the bill as far as what the child welfare ombudsman the qualifications and what they will do begins in section 10 on page 3 and you can see there the qualifications on the top of page 4 as what the qualification of the ombudsman will be and then moving on to the bottom of page four on line 23 begins the duties and again like representative cap said this was modeled very closely after the alms budsmen for the division
Speaker 13
2:06
of youth services and then moving on to page five you can see that the
Speaker 11
2:15
child welfare alms budsmen will then submit an annual report and on line 29 through line 36 who that annual report will go to And there is an emergency clause, which is included on line six. And I know I have been very broad. I'm more than happy
Speaker 9
2:31
to answer more specific questions about this particular
bill. I did have one question. Was this something that you brought forward from the division?
Speaker 11
2:40
No, ma'am, but we are supportive of the bill. This idea came from Senator Clark, really starting back all the way in 2015. And then after, as he mentioned at the last hearing, people across the state started contacting him with complaints. And really, and I agree with him, sometimes it needs to be someone outside of the division that starts looking into the allegations, whether it's the parents or whether it's about a kid or even if it's a foster parent complaint.
And so after the 2017 session, we were really looking at maybe putting the position at the department. but I did feel strongly that it needed to be somebody who has experience in the child welfare system but is not a part of DCFS so that they can take an independent look and then make systems recommendations. Representative Mayberry. Thank you. So this
Representative Julie Mayberry
Unverified
3:37
is a new position. How is it being paid for and what is the salary?
Speaker 11
3:41
So, my bosses agreed to fund the position through the DHS budget. So, we have a contract with UMS, which includes the Commission for Rape, Domestic Violence, and Child Abuse. And DHS will fund the position over at the commission through a contract. Representative Kelly. Who does
Speaker 21
4:06
this omsudsman, who do they report to directly? So
Speaker 11
4:10
they will report to Michelle Kline, who's here, at the Commission for the Rape, Domestic Violence, and Child Abuse.
Speaker 23
4:23
Representative Walker, did you have your hand up? Yes, I
Representative John W. Walker
Unverified
4:30
did. Thank you, Madam Chair. At first, I thought it was a good bill, but it is not. And let me ask you one question, then, with the chair's permission, maybe another. So, what is the benefit of this over an ad
Speaker 11
4:53
litem who is trained? So, an ad litem represents the best interest of the child, and so their role is very specific
as to going to court and representing the best interest of the child. So, these could be, so referrals could go to the child welfare ombudsman. that's about the juvenile or about the parent or maybe about a court hearing, while they don't have the authority to address them, if they're seeing that this is
Speaker 9
5:19
commonly happening across the state, in their annual report, they could address that as a
Representative John W. Walker
Unverified
5:25
systems issue. Well, I still don't think you've answered my question. You have ad litems, and the ad litems work within the system.
Is it the department's position that the items are not functioning and performing their duties as required at this time with respect to these
Representative Sarah Capp
Unverified
5:50
circumstances? If I may, and Ms. Martin can correct me if I'm wrong, but from
looking at the contents of the bill, this is also child maltreatment allegations and dependency neglect proceedings as well.
So if there is a child maltreatment allegation, a child wouldn't be entitled to an ad litem or have the opportunity to have someone advocate in regards to their best interest. And I know a lot of times with those ad litem positions, there's going to be situations to where it's going to be outside the scope of their contract as far as what they can do for the child. Follow up, unless someone else wishes to ask. I
Representative John W. Walker
Unverified
6:34
don't think that's a good answer either.
The reason is that there is no identification of what the person will do other than whatever they want to do. If it is for the benefit of the child, that's one thing, and that's the ad litem, and the court supervises that process. If it is for the benefit of the parent, that's another thing. I don't see who the person is for. Is it for the child or is it for the parent? And so I can answer that.
Just that issue. Is it for the child or is it for someone
Speaker 11
7:12
else? It's for the system. So it could be the child or the parent. They're not representing anybody. They're looking at systems issues and trying to identify that in an annual report. So they're not a party to the case. They're not trying to fix a particular, while they may identify issue and bring that to the party's attention, The overall goal is for them to be getting involved, advocating for whoever is having an issue, and then at the end of the year putting together a report to you guys about, and to others,
Speaker 9
7:43
there's others that will get this annual report, about what are they seeing as
Representative John W. Walker
Unverified
7:48
the system's issues. If nobody else. Now here's what you have said, then. You're going to impose upon each county through the DHS budget an employee, at least one, to perform this function that means 75 counties and the average amount is close to a hundred thousand dollars for an employee who's lawyer qualified and who has other perks that's a seven
and a half million dollars being added to or taken from the DHS budget let's say it's three and a half or four million and this doesn't show the financial impact of this so I mean it has financial impact Ms. Martin, does it not? It
Speaker 31
8:29
absolutely has financial impact. Wait, just a moment.
Representative John W. Walker
Unverified
8:32
Okay. Now, where is that financial impact since all of our bills have to have an impact study? Where is that impact? So
Speaker 13
8:40
DHS. Does it have an impact study? Yes. That's all. Oh, an impact study.
Representative John W. Walker
Unverified
8:45
No. All right. Now, without an impact study, how can we consider this?
Speaker 11
8:52
I think that would be a procedural question for BLR. It's my understanding that in this committee, bills that come before you do not require a financial impact study. But we at DHS internally have already discussed with the commission on providing that additional funds through the contract for the position. I would just like to correct one thing. This is not a lawyer. In fact, the qualifications on the top of page four, we intentionally wrote it in a way so it would not be adding another lawyer.
If you see, now, I guess possibly it could be a lawyer if they possess these other qualifications, like I have other degrees besides just my lawyer degree, but it requires a master's degree in social work, psychology, or related field, or comparable experience in one or more programs that serve juveniles and families. So it could be a lawyer. I guess somebody could meet these other qualifications, but this was not designed to bring another lawyer to the table. And
Speaker 9
9:51
we specifically talked about that, that we didn't need another lawyer in these particular cases.
Representative Cindy Crawford
Unverified
9:56
So I just wanted to clarify that. Representative Crawford. Thank you, Madam
Chair. So my understanding is this would be a position that oversees what's going on. and when something falters or they feel
like something has fallen through the crack for the child or the case, it can be picked up. Is that correct? Right. They
Speaker 11
10:21
could bring it to somebody's attention, very similar to the Division of Youth Services, almsudsman. So many times if they're
seeing issues that are being overseen, they might raise it to the DHS's attention. They might raise it to the ad litem's attention, but then they're also collecting, is this a systems issue where we can report. I do acknowledge the fact, and we did discuss this, that this is a whole lot for one person, right? And so even Senator Clark acknowledges that this is a lot for one person, but step one is creating this position and then assessing what happens over the next year or two years and determining whether there's a need for additional positions. And I would just like to add
Representative Sarah Capp
Unverified
11:02
that on page four, it specifically states the child welfare ombudsman shall have the following powers and duties, and it goes into detail there. And then on page five, section E, the duty to review an issue or concern related to a court case or investigation of a juvenile if it appears that the juvenile, parent of the juvenile, foster parent of the juvenile, relative of the juvenile, or fictive kin of the juvenile may need assistance from the Child Welfare Ombudsman,
which I would anticipate that that could be a number of different situations that assistance may be
Representative LeAnne Burch
Unverified
11:43
required. Representative Birch. Thank you, Madam Chair. Now I've gotten a little bit concerned because I thought I was okay
Speaker 45
11:50
with this. So tell me, there's one of these for each county?
Representative LeAnne Burch
Unverified
11:54
No, no, no. This is one position. Okay, so then, please, thank you. So one position, how in the world will they really address?
I mean, is somebody going to raise a question and then you go to this part of the state when they're having a hearing down there? I guess my big concern is it's way too big for one person and it's way too expensive for as many people as it's needed. So tell me how the benefit of having one person is going to really be able to get to all the parts of the state to be able to be impactful and, compound question, how this is not going to be the person that gets subpoenaed to all of the Senate Judiciary Committees
to then be an expose of the system. So let me just say,
Speaker 11
12:42
I mean, it was a concern that it's one person, but this is already working in the Division of Youth Services, and they only have one person our system is larger but the division of youth services system is pretty large as well and so in seeing that and how it functions now I don't see it day to day because I'm not over the division of youth services but we do have dual custody kids meaning kids who are served by a division of youth services as well as kids who are also in foster
care at the same time I mean I think the point is that every child matters including family so while this ombudsman as we're working through how the referral process or how the in structure happens if this ombudsman is able to identify an issue or see patterns maybe it's about relatives we did specifically include relatives and they're able to make a difference in one child's life or to identify an area where we need to go in and do some more training and support to the court teams
there, then I think that that's a benefit to the state of Arkansas. Do I absolutely agree that this is a whole lot to put on one person? Yes. But do I think that this person can make a difference in a child's life and identify some of our system's weaknesses or areas that we need to strengthen training and practice? Absolutely. And I think why I got on board with this is because we get a lot of complaints every day at DCFS. Sometimes it is my workers who have made mistakes, but sometimes it's other parties and it's very difficult for dcfs when we're working these complaints to really
have an independent perspective or say hey in this area we need to do training related to x y or z if it's not specific to us this would be an independent person who may see multiple systems issues in a particular county or area and they have looked at it independently and then come come back to some of the leadership whether it's me or the ad litem program or the parent counselor program and we can jointly work to strengthen practice and values in those particular areas and it's happened with the dys ombudsman representative walker yes is the youth
Representative John W. Walker
Unverified
14:55
services ombudsman legislatively delegated yes sir it is is this identical
Speaker 11
15:02
to that bill it is not identical because we don't have identical systems but this what the start of this bill was from the DYS omsudsman and then in partnership with the stakeholders including the ad litems because that is a difference between the DYS system some changes were made to this bill to fit more of child welfare not specifically the DYS system because our systems are different thank you are there any other
questions from the committee yes representative Richardson thank you
Speaker 54
15:33
madam chair so when I look at this understand that the the benefit of having this ombudsman, but I am significantly concerned with so much responsibility on this one person and how that's going to affect their inability to really serve as many children as they possibly could. Couldn't there be a huge bottleneck in the position that'll end up being worse off than where we
Speaker 11
15:57
are now? I get, I'm having trouble, um, maybe, I can't
imagine that we would be worse off. I do agree with you that this is a lot for one person and that we will have to well not we it will be under the commission and it is independent that they will have to work on creating a process to prioritize how they will um take calls and complaints and look into issues i do agree with you on that but if people are not being heard by the alms budsmen there are other avenues nothing requires that people go straight to the alms budsmen they many times go to to you guys i suspect over the next two years that you will
have a lot of contact with me, our legislative affairs, because you will receive, and many of you have already been here, receive calls and complaints from your constituents that are related to child welfare. So that's still an avenue. You can still come to us. But if we feel like, hey, this needs more of an independent review, we may send something to the almsudsman as well. But I don't think that if they get overwhelmed and there's too many complaints, what I'm saying is there's currently avenues, whether if it's about ad latum, they can contact the ad latum
Speaker 9
17:01
program or about parent council they can contact the parent council program follow-up madam chair so based on what
Speaker 54
17:09
you just said there why do we need the arms buzzman if all
Speaker 11
17:13
of these systems already exist because i've and here's what i've seen personally is we get a lot of legislative governor's office complaints complaints from foster parents and others reaching out and just to be very honest sometimes it's very difficult and i have to check myself every day say am i really independently looking at this, you know, we're gathering information from all sides, but we have a vested interest in, and, you know, maybe, maybe sometimes our policy is, um, you know,
having influence on how we look at a complaint, or maybe we have a relationship with the foster parent and it's a relative that's really advocating for the child. And right now we're headed towards a foster parent adoption. So having that person who has experience, but is truly independent from us, I think could offer a valuable perspective. And frankly, this person may make my job very difficult, just to be really honest. Like they may be, I mean, they're going to be digging into
Speaker 9
18:07
what are these systems issues. And we own that we have some issues ourselves at DCFS.
Representative LeAnne Burch
Unverified
18:14
Representative Birch. Thank you, Madam Chair. I guess I'm a little bit concerned about the actual working of the complaint system because that's what it appears to me that somebody's going to make a complaint and my concern is or i guess my question is if i have a constituent that calls and says this for instance judge is doing this whatever and i keep hearing that they're doing bad things and particularly i know this family and this was terrible
does that issue come into me then me calling the ombudsman which i guess i could do under this provision does that not make them my independent investigation authority and do they report back to me before they report back to you if i'm the legislator saying hey i don't
like what's happening because i got a constituent that gives me a lot of money and their family is really influential and i need to know why they were wronged in this case and go
look at this and then get back with me is that not is there not potential for that to
Speaker 13
19:25
be exactly how this works so i mean that happens today when you guys
Speaker 11
19:30
call me um and i don't feel like i i feel like i have a responsibility to respond back to you and provide the information that you've asked for but it is a constant uh we're going to do what's right for children and sometimes we have to agree to disagree. But just because you send me a complaint about a judge or DCFS, I don't all
of a sudden feel like I have to do what you want me to do. I'm going to do what is best for the child. And sometimes it means explaining to you our side of the story. And sometimes we have to agree to disagree. So it's a similar, but I have a perspective of DCFS. This person will be outside of dcfs and i feel like could be more independent especially when it comes to relatives or comes to biological parents that they will be more independent and not tied to us at dcfs
that's where my perspective came related to this bill
Speaker 21
20:32
REPRESENTATIVE KELLY WOULD YOU AGREE THAT THIS BILL SIMPLY IS JUST TO IMPROVE THE SYSTEM FOR OUR CHILDREN'S STATE OF ARKANSAS? THAT'S HOW I SAW THIS
BILL. ANY OTHER QUESTIONS? WE DON'T HAVE ANYONE SIGNED UP TO SPEAK FOR OR AGAINST THIS BILL. REPRESENTATIVE CAP, WOULD YOU LIKE TO CLOSE FOR
Representative Sarah Capp
Unverified
20:51
the bill yes thank you madam chair in closing i'd just like to tell you guys that i appreciate all the questions when senator clark asked me to do this yesterday for him my first question to him was is there a fiscal impact and he responded to me that they had agreed to absorb it in their budget and the question before the committee is do you think it's beneficial or more detrimental to have another set of eyes and ears out there in these situations and so I would
appreciate a good vote and make
a motion for do pass we have a motion do passes their discussion of the motion and all in favor say aye opposed say no the ayes have it the bill has passed representative Ballinger I mean Senator Ballinger excuse me are you here prepared to present your bill to us And this is Senate Bill 625.
Oh, it looks like we have a star witness at the end of
Speaker 72
22:00
the table. He is unashamedly bringing his kid here to try to convince you guys this is a good bill. Bring in the
Speaker 74
22:08
cute factor. Yep, yep. For some reason, we don't do it on our own. You're recognized to present your bill. Okay,
Speaker 75
22:13
Senate Bill 625 is something that Mr. Smith brought the idea to me, and I think it's actually a brilliant idea. I do quite a bit of estate planning in my practice. Well, I don't do quite a bit of anything. Let's back up and
let you introduce your guest, please. Okay. Well, that's it. My
Sylvester Smith
Unverified
22:27
name is Sylvester Smith, and I'm a local business consultant and attorney.
Thank you, Madam Chair. And would you introduce your guest? What's your name, honey?
Speaker 72
22:44
This is the light of my life, my daughter Camden Smith. All right. I'm
Speaker 75
22:49
sorry, Senator Ballinger. We'll back up and get it. So, hey, I'll take a second fiddle of that any time. So what this is is basically an instrument in estate planning that provides for a mechanism to fill a gap, which may be a very short gap, maybe a longer gap as long as 25 or 45 days, but it's always a gap any time that people who have minor children pass away.
And so the example that I use is me, my son Bobby, some of you guys know him, are the ones who get all seven of my kids if me and my wife pass away. which would be quite a burden. But so if me and Jessica, heaven forbid, ever passed away, and he gets all seven of my kids, he'll have a will that will say that. But when you pass away immediately until you go to court, you get the testimony letters and all that kind of stuff, you don't have anything that demonstrates or proves that you are a basically guardian of the child.
So this creates a very temporary guardianship of 45 days that as soon as you pass away, it becomes effective. Originally, it was basically just a notarized statement. Now it's a notarized statement. It has to be witnessed by two independent witnesses, similar to what you do with the will. And it is something that the Judicial Council supports with those amendments. And that's basically it. I'm happy to answer any questions. Representative Birch. Yes, and thank you, Madam Chair.
Representative LeAnne Burch
Unverified
24:09
And, Senator, I apologize because I didn't catch this until last night, so I've got a lot of questions. Sure, that's
fine. Isn't there already a temporary guardianship that can be obtained, like, in one day in these circumstances? Well, if you
Speaker 75
24:22
had an emergency situation, it depends on the judge and how busy the court is, but you have to petition the court. So the situation is if me and my wife pass away, my son is going to be devastated and crushed. He also will be taking care of seven kids. The question is, how quickly should the citizen be expected?
If they want to, and this, by the way, they have to do this. Parents have got to decide that they're going to do this in the first place. But how much do they want to go hire an attorney? And because that's what most of them would have to do is retain an attorney, go do the petition for the court for the emergency guardianship, and then go get that done. You may be able to get that done in a few days. But my guess is my son's going to be thinking about my funeral and making that plan. He's going to be thinking about, you know, making arrangements for the kids to fit into his mobile home. Or is he going to come live in my house? Or what's going to happen there?
There's going to be a lot of other things. All of us have lost loved ones. We know it's chaotic enough without having to go through the process of actually going through the emergency guardianship. What this is, I mean, probably the best way for me to think about it, it's sort of like a durable power of attorney can exist past the incapacitation of somebody. This would be sort of like a power of attorney for guardianship for kids. I have a lot of other questions. That would, okay, would exist past the death, but only temporarily, only for 45 days.
And at that point, and at any point, if somebody objects to it or doesn't feel like that's the best place for them or whatever, in spite of the fact that the parents have said this is who they want to watch their kids, then somebody can petition the court on their own. But this will give them 45 days to figure things out
before they actually have to be at court. Follow up? I don't see
any other hands up, so go ahead. So I just. Go ahead, and
Representative LeAnne Burch
Unverified
26:15
then we'll recognize Representative Mayberry. Thank you, Madam Chair. I guess my concern is there's so much risk of abuse.
So first of all, right now, if you've got a 14-year-old, or I think it's 14, is that right? They have the ability to have a say in a guardianship. Right. So you're taking that away from the minor. There's no check on balance of sound mind, meeting all the other qualifications that a guardian has to have right now. It's up to the parents. Which you want to have and you want a court to know about because you want the person to be able to, especially in the circumstances such as you described, be able to be really responsible with regard to all the things that guardianship legally can do,
which means control and get into bank accounts and take care of money and paying bills and all of those things. So right now the guardianship statute has things like 18 years, sound mind, resident of Arkansas, and all those things. If I do this agreement with my husband, or hopefully with my husband, and say we want this person to be able to do it, and two weeks later that person moves, or they're no longer a sound mind, or they were convicted of a felony, because you can't be convicted of a felony and be a guardian. I think we had that whole big discussion on another bill with regard to qualifications.
So all those things can be out there and be changed between the day I make this agreement, which is really great, and next year or next month when it might need to be effective. And I just think right now we have so many good qualifications and protections with regard to a court being able to make sure all those things are out there because I see great risk with somebody being able to be a guardian without these qualifications, without being checked right then at that time and under those circumstances
and having control of a child or seven children and their bank accounts and the decisions on where they move and where they go and whether the mortgage gets paid and all of that. And none of those protections do I see. How can you tell me that this is going to provide all those protections that the current
Speaker 75
28:23
law does? Two things. First off, as a current law, we're not changing. So if anybody, any other person out there says, look, situation's changed. We should intervene.
They still have all the abilities to intervene. The other thing is we're empowering parents, mom and dad, to make the decision on behalf of the kids without even a court intervention but just for 45 days, right, So that they can decide this person is who we want for 45 days. Now, when I counsel my clients when we do an estate plan, I always kind of say the same thing. Anytime anyone that is mentioned anywhere in your estate plan or contemplating your estate plan goes through a major life change, it's time for you to consider how this affects your estate plan. And so that would be a situation that, you know, if they did move away, the mom and dad who's been empowered would need to make that change.
And if for some reason it doesn't, because of that kind of thing happening, because of timing and it not working out, you still fall back to the same emergency provisions that we have now. So if they have moved away and they can't take care of the kids, they can still do a petition for emergency guardianship. We're not changing the other code section. We're just providing a mechanism for a new instrument, a new tool to empower parents to cover that gap that
Speaker 72
29:35
will exist just for 45 days. Representative Mayberry.
Representative Julie Mayberry
Unverified
29:40
Thank you, Madam Chair. I always try
to give it my own perspective of how do I see this and just make sure I'm following this correctly. You know, I have four children. I have one who is now an adult child. The other three are under 18. My husband and I are driving. We're in a car accident. And my adult child, if I've given her this opportunity to be that guardian for that 45 days, and I should have said one of my other children happened to be in that car with me. So mom and dad, and at least one of the other kids in the
car with me, mom and dad are now dead. Hopefully this never happens, but, um, but my other child is in the hospital and needs someone to say yes, surgery or whatever. This would immediately allow my adult child to act as the parent in this role saying, yes, I'll consent to surgery or whatever needs to be done. Is that correct? The power of that guardianship is
Speaker 75
30:40
passed on. And this is the thing is they have the emergency guardianship provisions in the law now to try to address that.
The problem is that that is dependent on how quickly the court can do it. And then all of the safeguards and all the protections, while they're great, those are things that basically need to be checked through. It's not something that is instantaneous. And if there are any objections to it you may not get it right so that's why this is empowering parents to get that done for for that some limited period of time in order to to do that and and and i think that's exactly right is that it just provides that tool that mechanism for that person you say i trust to
Sylvester Smith
Unverified
31:21
make those kind of decisions madam chair may i help this is this is
the primary that is the primary reason why i came to senator valger with this my wife and i died in a car accident on Friday night. This little angel's in the back seat. Under the current law, there's no mechanism for someone else to immediately step in and speak for our children. It would have to wait until Monday morning. My little sweet angel could have passed away by then. The other thing, and I so respect the prudence when it comes to children, but judges grant emergency temporary
guardianships all day without ever granting and hearing. They do it based upon a filing and a sworn affidavit. They don't always meet and interact with these people. And so I think it's appropriate that we allow the judgment of the parents. And I want to emphasize parents because both parents have to sign this because we've known all of the potential candidates for guardianship for a lifetime. And so we're asking to allow us for a period of 45 days to let our determination
based upon our interest in our children, which is greater than anyone else's interest on earth, to prevail. With regard to hiring an attorney, I am an attorney. I do these all day, every day. Hiring an attorney is expensive, and everyone doesn't have the money. I've had families where sometimes they have to raise the money, even if it maybe is even only $1,000 to do this process. Preparing this document would be substantially less expensive than that and place a less significant burden, financial burden on a family, and it would just be a part of an estate plan. And so if you trust a notarized statement signed by two witnesses to transfer a million dollars' worth of property and a will,
then you ought to trust that same document to allow someone to care for my children for a brief emergency period. And
Representative John W. Walker
Unverified
33:15
that's what we're asking. Representative Walker. Thank you, Madam Chair, Senator Ballinger, Mr. Smith. What you are proposing is that you allow parents to will their children, aren't you? What you're doing is basically creating a will process so that upon the advent of death,
and this really seems to apply only to middle-class people, if you anticipate estate planning and things like that, that you're going to have a will, than you will your children on a temporary basis, pendente lite, until 45 days have passed. Now, in many cases, isn't it true when you're not dealing with the most pecunious million-dollar-plus people that assets may be limited and this person who is appointed may be able to dissipate all the resources of the child
within that period of time, and there will be no recourse other than, well, there will be no recourse. I mean, so how do you deal with that? I understand that you may want to will children. I don't know that any state has created a law that says you can will children. But how do you deal with that kind of problem, Mr. Smith? I'll ask you because you're the progenitor
Sylvester Smith
Unverified
34:39
of this act. No, I mean, that's a legitimate concern. There would be, I guess, some potential assets that the children may have.
I would argue that my daughter's assets are probably worth less than $200, and the people that I have appointed to do this, I trust to manage those assets. Now, I have assets that my daughter would inherit. Those would flow into a trust. And so just because the person is the guardian of my child and my child's, her worldly adolescent possessions doesn't give them authority over my trust. And so that's a separate issue. And the other thing I want to be really clear about,
the parent that takes the time to do this is going to be a parent that's exceptionally prudent and thoughtful. And so I think that we ought to, again, allow their judgment to substitute that on a temporary basis, which is half the time of what a judge could give for a judge that, frankly, has never met these people, never met my children, never been around them, and never met the potential candidates to care for my children. And I want to also say
Speaker 79
35:41
that the Arkansas parents, Council Jerry Cox and his group, they support this concept. They think it makes sense for families.
Speaker 52
35:49
Representative Burt Shute, did you have a
Representative LeAnne Burch
Unverified
35:51
question? I do, Madam Chair. I guess because I'm still trying to reconcile this with the
current law and with the concern that today my marriage might be great and tomorrow it might not. And if I've executed this, I'm not sure how I would revoke it so that I could get that back from somebody who didn't want me to have it back. So anyway, but let me go straight to 2865-204, which I think is the guardianship stuff. So I'm looking down. It's the parents of an unmarried minor or either of them, if qualified.
Again, that goes back to my issue about the qualifications of guardian. And in the opinion of the court, suitable shall be preferred over all others for appointment as guardian of the person. Subject to this rule, the court shall appoint as guardian of an incapacitated person the one most suitable who is willing to serve, having due regard to any request contained in a will or other written instrument executed by the parent or by the legal custodian of a minor child for the appointment of a person as guardian of the minor. So it looks to me like you can already do a written instrument that doesn't have to be
a formal thing, similar to, I guess, what you're talking about. And the court's going to be considering that already by operation of law, current law. So I write a note. I say, this is where I really want my kids to go. And the court has that immediately to consider. So at the most, if something happened on Friday night, Saturday, Sunday, Monday, the court could be considering something I've already put into writing, which already fits the law and gives the court the
discretion to consider exactly what you're asking to consider, why is that not sufficient already? And I
Speaker 75
37:36
the head. And that's what we've been saying is that those things are already there, right? But you have Friday, Saturday, Sunday, Monday at the earliest, if you can get into the judge to even hear that instrument. So we have three days that you don't have anyone that can be legally recognized as the guardian of that child. They've lost. They've
had that gap that's gone. Now, the other thing that I would say about that is you read down if the court so chooses, if they meet this qualification, if they meet, what we're saying here is appreciate the court. We want all that there because sometimes people aren't good. Sometimes people aren't fit, but we're going to empower parents to have the ability to decide who it is that's going to take care of their kids, at least for a temporary time. And then anybody can go petition the court if you're concerned about it. And the other thing is things like, you know, guardian of the person, guardian of the estate,
all that could be lined out in the document itself. So you're empowering the parents to decide how that's going to happen. And they don't lose their fiduciary responsibility once they've accepted this guardianship, which requires them to accept it. Once they accept that guardianship, they also accept the responsibility to take care of these kids and take care of their assets. And if they do squander away their assets, they'll be liable just as if they were a guardian pointed through the estate itself. And I think that all we're doing is just giving them a little tool, just a little mechanism, just a little something to help bridge that gap.
I really don't think it's a big deal just because what you pointed out. I don't think it's a big deal that we are doing it. I don't think it's a big, you know, shocking thing. But it is something that I think is innovative in the fact that every time, no matter what it is, you create this gap. And what we're doing is not only is it we're saving Monday, Tuesday, or Saturday, Sunday, and Monday, we're also meeting on Monday he can call the funeral home and start making arrangements. On Monday he can start talking with the other family,
trying to figure out what to do. He can start gathering pictures to post at the funeral, right? You can do all those things that you are responsible for doing, and the time that you'd rather just be laying in bed grieving instead of worrying about trying to get an attorney to go figure out how to set it up so you can take
Sylvester Smith
Unverified
39:59
care of my seven kids. Well, and if I may, one more opportunity, Madam Chair. I'd like, again, the committee to consider the working poor because not only am I an attorney, my father and my family owns a funeral home, and we're presuming here that everybody's going to have that $1,000 to retain an attorney
three days after someone died, and the $185 filing fee associated with filing this petition. Some people are still scrounging up the dollars necessary to put their loved one in the ground. And so all we're asking is allow another pathway for prudent families to have quick access to allow another person that the family trusts to empower their children for a temporary period of time. We're not taking away the power or authority or responsibility of the court.
That is still there. And if the person that my best friend and his wife, that my wife and I both trust to do this, if something happens and he's acting irresponsibly, my mother, who has the money, thank goodness, can go and file an emergency petition and have that filed on Monday morning with the judge and have it considered. And so I'm just asking to trust me and my wife when it comes to my child, not make my best friend or whomever have to go see some judge to make it happen because that judge doesn't know me doesn't know my family doesn't know my kids and I've done these cases and I
can't say this enough I've seen judges just read the pleadings and say oh this sounds good why is that judgment better than mine when it comes to this child that I created that means the world to me. I'm asking you, trust me with the fate of my child, just for 45 days. Representative Birch. And again, I apologize. And I'm feeling
Representative LeAnne Burch
Unverified
41:45
you because I had that when my husband and I
were both stationed overseas. Both our kids were born in Germany, and there was no family around.
But the military has a procedure. So if something happens to both of us together, The military has a procedure for the temporary, somebody getting the kids home, and it's reviewed like every six months. And you change it every six months, and it's maintained with the personnel records at the headquarters of each of the soldiers. So there is this mechanism for a constant review, even of my choices. It's not that a judge wouldn't blow that away when the kids got back anyway because my choices might have been really good whenever I was 21 and when I look back, maybe those weren't such great choices.
But there was this review procedure and there was a place where these were kept and there was the ability for me to always know where I could go to revoke that. I don't see those same protections here. If I execute this kind of document, which is incredibly important, I so hear you and I so understand why parents have the right and should do, but things happen in marriages. Things happen between parents. Things happen with the people that they believe are most responsible and should be most responsible
for taking care of their kids. Things change. And how would, if I executed something and someone had that document, how do I change that? How do I make sure that my wishes are actually known when my ex now has that document that said, this is who you wanted, and I've still got that, and I'm gone? And that can be used in a way that three years ago might have been really great, but it's not anymore. I don't see the protections for, one, where do you go to be able to revoke it?
Two, for anybody to know that it's been revoked. Three, for it to be reviewed and maintained. Where are
Speaker 72
43:47
those protections? Okay, if you go to line 13 on page 2, it says, The parent may
Speaker 75
43:54
revoke or amend this, his or her appointment of temporary guardianship under the subdivision of this section at any time before his death. Now, just like a power of attorney, just like a will now, just like any of the other instruments that we do on a regular basis,
you have to do revocation, and then you have to provide notice. And so if you wanted to file it, then all of a sudden you've got constructive notice to everybody, right? If you wanted to make sure that you provided that notice, like you've decided you want somebody else to be that person, or you know that it is disputed. So what I would do in that situation, I would provide your ex-husband the notice, and I'd provide the new person that you'd prefer to be your guardian the notice, and that and that'll be gone it'd be it'd be done at that point you
Representative LeAnne Burch
Unverified
44:41
recognize your follow-up i'm sorry you being the attorney that i've hired to do this
i mean you're talking about you're talking about people with means having an attorney who do have the ability to to take care of things again i'm worried about this um inability to revoke with a central well let me go back i used to advise people about powers of attorney too Absolutely. And I told them they're as good as paper they're written on, right? They're only as good as whoever that bank is that's accepting them. And you better go to the bank and get the actual document from the bank because it needs to be a special power of attorney for that particular bank. Don't expect that by law they have to be committed to doing it.
And what's, again, the ability to revoke is only as good as the people who are accepting that revocation. And I might revoke it, and I might not get that copy of that power of attorney revocation to everyone. And just because I file it at the courthouse, which is another legal step to do, doesn't mean that that power of attorney is not going to be used and that there aren't going to be all these legal problems that result from it. So I hesitate to say this is equivocal to a power of attorney even in the registration.
All of that requires, again, an attorney. It all requires having somebody review the stuff and being legally responsible for saying qualifications are still there. And if they haven't changed, you've got 45 days for somebody to clean out an account for somebody to file insurance and get things. You're giving a huge power to someone, and you don't have the ability to check it every six months or every three months or whatever. It's that inability to control what you put out there that also significantly worries me.
Speaker 75
46:27
And what I would say is it's almost just the opposite. You've given me the ability to control and not a court. I get to put the instrument together and I get to tell or someone gets to come to me and say, this is what I want done, Bob. Will you do this? And so all of a sudden now they are empowered to make those decisions rather than a court. I really don't think
Speaker 85
46:49
that they're going to go out there and appoint people that it's going to clean out their account.
Speaker 75
46:54
But even if, even if a parent made the bad choice, the person who would be the good decision maker if they had to do an emergency guardianship is still out there.
They can still go through all those steps. They can still hire an attorney. They can still Monday morning go out there and jump in and get the court involved. You know, I agree that it's complicated. Anytime you're messing with the law, it's complicated. This revocation of this document is not going to be like nothing, right? It's going to take something the same way if you have a will that gets challenged, if you have a power of attorney that needs to get, I mean, any of the instruments that we put out, when we put our authority and give it to somebody else,
any time it's a situation that requires the law to get involved. But what we're talking about here is empowering parents to make that choice for their kids. Madam Chair, if I may, one
Sylvester Smith
Unverified
47:44
more time. Um, it's just when you have a tough advocate on the other
side, you need to have the opportunity to respond. The one point that I want to make sure we're not missing here is what the guardian gets is authority over the children, the children's accounts. They don't get authority over their parents' accounts because that would still have to go through the probate process. And so they
don't have the opportunity to spend down all the parents' assets. Additionally, um, representative your, your hypothetical presupposes that a guardian appointed by a court can't spend down all the money, too. They can, and I've seen them do it. And so what we're saying is, and it just goes back to my point, trust the parents to appoint the most honest person that they know to handle
Speaker 52
48:29
this. Representative Mayberry. Motion do pass. We're going
to go ahead and keep discussion going just a little bit longer, make sure all
members are recognized, and then I'll recognize your motion. Were there other questions
Representative Denise Garner
Unverified
48:50
from the committee? Yes, Representative Garner. For those of us, thank you, Madam Chairman, and thank you guys for being here. For those of us who aren't attorneys, can you just give us logistically how this would work? Who keeps the form? Who gives it? How do you present it? those kinds of things. I'd be happy to.
Speaker 75
49:09
So the way that this would probably work if you came to my office is typically what we're doing, if someone comes in, and a lot of times what they'll do is they'll request a will, say, we need to do a will, because in their mind, that's how everything's taken care of. And we'll have a conversation, and usually we'll find out that they may need a will, but that they also may need a trust. They may need a complete estate plan package. In our office, if they need a complete estate plan package, this will probably not cost them anything. It will just be one more document. If somebody came in and they said, look, you know, I completely trust the court to establish the permanent guardianship.
I'm fine with that. But all I want is a temporary guardianship, you know, through this instrument. Then it probably costs, you know, $200. It's going to be a relatively cheap document to do. I will have very few clients that ever do that because if they need this, when you have minor kids, that's when a will becomes imperative. Like most stuff you can take care of through a trust or through how you set up your bank accounts, all that stuff. But if you have kids, you almost have to have a will to set up the permanent guardianship. So if someone comes in, a young couple, probably not quite ready for a trust because they don't have a large amount of assets,
then we'd set up a will and I would use this document with it. And so the whole package would probably cost them about $500. Then when we were done, then I would give them three copies, right? I'd give them original. I'd say keep that in some place safe. Then whoever's going to be your guardian, administrator of your estate, make sure they have a copy of it. And then you'll have another copy that's pretty easy to get to and keep. It'll go out in a binder with them. I'll keep a copy, probably digital and paper at least for a while,
Keep it digital forever in my file in case they had a situation, which happens occasionally, where they need a bank that needs something emailed to them, and so we'll do that. And so logistically, that's the
Speaker 100
50:59
way it would work. And just one more point, because if I may, Madam Chair, in the case of the fact that Representative
Speaker 110
51:06
Birch... I think your microphone's not on. Maybe if Representative Garner comes off... Okay. I think one of the,
Sylvester Smith
Unverified
51:15
I'd like to deal with the issue that Representative Birch raised, what happens when, and I want to remind you that in his analogy, both parents have to come into his office and sign this.
And so what happens when the fact pattern arises that, hey, they get a divorce? Well, Representative Birch calls me and says, look, I don't trust that Yahoo anymore, and I don't trust his cousin, and so I want that thing revoked. Well, then I have a requirement placed upon me by the rules of ethical conduct where I've got to yet let the ex-husband know, hey, this has been revoked. I'm going to let the temporary guardian know this has been revoked, and I'm going to provide a copy of all those correspondence to Representative Birch. Now, Stark Ligdon is the person, the referee for lawyers, and if I mess around with somebody's money, Stark Ligdon is going to take my law license.
If I mess around and I fail my duty to Representative Birch to communicate her wishes and act upon them, Stark Ligdon is going to take my law license. And now I want to be very clear with the committee. Senator Bounds is going to charge $200 to do this. I'm going to charge $4 because I've got these little kids that like nice things. And so I can't lose my law license. And I can tell you attorneys are going to take this very seriously. And here's another fact pattern to please give careful consideration to that his analogy made me think of. Think about the family that has a guardian, maybe a permanent guardian for their kids that lives in another state.
That permanent guardian may take time before they can come here and make plans to make things ready for the children. And so that nomination of a permanent guardian in the will may say, give my children to James in Florida. But temporarily, immediately upon my death, I need mama to be able to step up and make decisions for them because mama lives down the street. And so this is just another option for parents to
Representative Denise Garner
Unverified
53:03
utilize in their estate planning. You're recognized for a follow-up. Thank you, Madam Chair. So I guess in reading this, I didn't, does it say that you have to go through an attorney or, so I can notarize a sheet of paper that says who my kids are going to upon my death for 45 days.
and have that notarized and then keep it with two witnesses
and keep it where? Well, wherever you want, but it's only as good as
Speaker 75
53:31
the notification that it provides to people. So you would, if you were doing it on your own, there's nothing that prohibits, anything we do in the law, nothing that prohibits citizens doing it on their own. Okay, that's what I was asking. So they can, you could draft it. I would get it to at least the guardian. and anybody who's doing this should also contemplate doing a will
because obviously they care enough that they want somebody to be able to temporarily be guarding the kids. They should also care who would do it permanently.
Representative Denise Garner
Unverified
53:58
I agree with you they should, but they don't. There are a lot of
Sylvester Smith
Unverified
54:02
people out there that don't. And don't forget, the guardians would have to also sign it, and there's an acceptance, and so to make sure that they agree with this also. Oh, they
do? Okay. Yes, ma'am. Yes, Representative Birch. You're going to
Representative LeAnne Burch
Unverified
54:18
kill me, but this is really important to me, and I understand the concept.
I really do. I just see a lot of room for abuse, and Senator, you said it's only as good as the notice it provides to people. Is there any legal requirement for the notarized statement that I write myself, which may or may not be cohesive or coherent, and I had a notary swore that they saw my husband and I do this. Is there any legal requirement for that hospital? Because what I've heard so far today is the real significant issue is that immediacy, that need for immediacy. Is there anything that's requiring that hospital to accept this notarized statement?
Because right now they don't have to accept that power of attorney. They can rely on it for making decisions and then using that as a defense should somebody say you acted outside the wishes of the patient. But is there a legal requirement that a hospital or other legal entity accept this handwritten, potentially notarized statement from people that are now deceased? And do they not incur great liability in potentially doing so? So the answer to the
Speaker 72
55:26
first part of your question is there's no legal
Speaker 75
55:29
liability, just like if you had an advanced directive, just like you had a health care power of attorney.
they have the ability to look at it and say, you know, for whatever reason, we don't. But the second part of your question is, yes. I mean, I think they have, as long as the document itself appears on its face to be legitimate, then they are covered as far as liability and depending upon it. So it is just like if they went in, you know, when we prepare an estate plan, it has a health care power of attorney in it. And if they go in and they use that health care power of attorney and a hospital depends upon it, then they have been able to be covered from liability if they follow the direction on the health care power of attorney,
if they listen to that person who's been put in charge. If they say, no, we don't like that document, I don't think there's anything
in the law that forces them to accept it. Members, I want to be sure everyone's questions are answered, but it's 10 o'clock and we're going on the floor at 1030. Are there any more immediate questions for
this? then uh representative mayberry will recognize your motion do pass is there discussion of the motion i think it's it's pertinent
Representative Julie Mayberry
Unverified
56:40
i think the questions that if i may yes i think the questions
Representative John W. Walker
Unverified
56:44
that are raised by representative birch are pertinent uh the um the interest of the parent is is clear and there is a process that's already set up to address it that's been well tested And this deals with the with speculation and the protections and the like to me don't appear to be sufficient for us to take a last-minute delve into supporting it without more
Without more consideration And of course, I'm not going to vote against Sylvester because he's sort of like my protege But I think that it is flawed, and I want them to know facially that I think it is, even though I won't vote
Representative Cindy Crawford
Unverified
57:35
against it. Representative Crawford. Thank you, Madam Chair. I understand all the legalities, and I understand the concerns of attorneys, but I think it's time to give power back to the parents. And I think that is what we're trying to do here.
And for that reason, I'm voting yes. And, Senator Ballinger, I
realize that I failed to ask you if you wish to close for your bill. Did you wish to say any other statements? No. In
Speaker 72
58:01
respect of your time and everybody's busy, you know, I'm happy to continue to visit about
Speaker 75
58:05
it. But at this point, I think it's probably better to just let you guys go.
Okay. We have a motion to pass. All in favor, say aye. Aye. Opposed, say no. No. Congratulations. The bill has passed.
Thank you, Madam Chair. Thank you, committee. And committee, with that, our work is finished. Thank you so much for your diligence. Thank you so much to our staff members who have worked so hard to make us look good and to keep the trains running on time. And with that, we are adjourned.
Agenda
SB625 B. Ballinger TO ALLOW A PARENT TO APPOINT A TEMPORARY GUARDIAN FOR HIS OR HER MINOR CHILD IN THE EVENT OF THE DEATH OF THE PARENT.
SB662 A. Clark TO CREATE THE CHILD WELFARE OMBUDSMAN DIVISION WITHIN THE ARKANSAS CHILD ABUSE/RAPE/DOMESTIC VIOLENCE COMMISSION.
DEFERRED BILLS
Number Sponsor Subtitle
HB1237 Petty TO AMEND THE LAW CONCERNING CUSTODY OF A CHILD.
HB1464 Gazaway TO AMEND THE LAW CONCERNING JURISDICTION OVER A PERSON SEEKING TO ADOPT A MINOR.
HB1805 Capp TO CREATE A COMMISSION ON THE PREVENTION OF ABUSE OF ELDERLY AND VULNERABLE ADULTS.
Notice: Silence your cell phones. Keep your personal conversations to a minimum. Observe restrictions .designating areas as 'Members and Staff Only'.
Documents
| Title | Type | Pages | Source |
|---|---|---|---|
| Agenda — AGING, CHILDREN AND YOUTH, LEGISLATIVE & MILITARY AFFAIRS- HOUSE, Apr 5, 2019 | Agenda | 1 | Official source ↗ |
Speakers
Representative Charlene Fite Chair
Unverified
Representative Sarah Capp
Unverified
Speaker 9
Speaker 11
Speaker 13
Representative Julie Mayberry
Unverified
Speaker 21
Speaker 23
Representative John W. Walker
Unverified
Speaker 30
Speaker 31
Representative Cindy Crawford
Unverified
Representative LeAnne Burch
Unverified
Speaker 45
Speaker 54
Speaker 72
Speaker 74
Speaker 75
Sylvester Smith
Unverified
Speaker 79
Speaker 52
Speaker 85
Representative Denise Garner
Unverified
Speaker 100
Speaker 110