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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Protective Proceeings of Nora D. (5/7/2021) sp-7526

In the Matter of the Protective Proceeings of Nora D. (5/7/2021) sp-7526, 485 P.3d 1058

           Notice:   This opinion is subject to correction before publication in the P                        ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                             

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                               

           corrections@akcourts.us.  



                        THE SUPREME COURT OF THE STATE OF ALASKA                                          



In  the  Matter  of  the  Protective                                )  

Proceedings  of                                                     )    Supreme  Court  No.  S-17756  

                                                                    )  

                                                                                                           

NORA D.                                                             )    Superior Court No. **********************  

                                                                    )  

                                                                                              

                                                                    )    O P I N I O N  

                                                                    )  

                                                                                                           

                                                                    )    No. 7526 - May 7, 2021  



                                                                                                                        

                      Petition for Review from the Superior Court of the State of  

                                                                                                                 

                      Alaska, Third Judicial District, Anchorage, Andrew Guidi,  

                      Judge.  



                                                                                                                      

                      Appearances: Julie L. Webb, Assistant Public Advocate, and  

                                                                                                                             

                      James  Stinson, Public  Advocate,  Anchorage,  for Nora  D.  

                                                                                                                       

                      Bruce F. Stanford and Megan Rowe (limited appearance for  

                                                                                                                  

                       oral  argument),  Law  Offices  of  Bruce  F.  Stanford,  LLC,  

                                                                                                               

                       Seward,  for  Kevin  G.                    Chad  Hansen  and  Mark  Regan,  

                                                                                                              

                      Disability  Law  Center  of  Alaska,  Anchorage,  for  Amicus  

                                                                                                                      

                       Curiae  Disability  Law  Center  of  Alaska.                                 Kimberly  D.  

                                                                                                                  

                      Rodgers, Assistant Attorney General, Anchorage, and Kevin  

                                                                                                                

                       G. Clarkson, Attorney General, Juneau, for Amicus Curiae  

                                                                                                            

                       State of Alaska, Department of Health and Social Services,  

                                                                    

                      Adult Protective Services.  



                                                                                                                    

                      Before:           Bolger,  Chief  Justice,  Winfree,  Maassen,  and  

                                                                                                                        

                       Carney, Justices.  [Borghesan, Justice, not participating.]  



                                            

                      WINFREE, Justice.  


----------------------- Page 2-----------------------

I.            INTRODUCTION
  



                            The superior court ordered a respondent in a guardianship matter to attend  

                                                                                                                                                                           



a psychiatric evaluation and answer all questions posed to her by a petitioner's retained  

                                                                                                                                                                      



expert.   But a guardianship statute provides that a respondent may refuse to answer  

                                                                                                                                                                        



questions during  examinations and  evaluations.                                                            The only exception  to  that statute  

                                                                                                                                                                         



applies  in  an  interview  to  determine  whether  the  respondent  has  capacity  to  make  

                                                                                                                                                                           



informed decisions about care and treatment services.   We granted the respondent's  

                                                                                                                                                            



petition for review to consider the scope of the statute's protection, and we conclude that  

                                                                                                                                                                                



a respondent may refuse to answer any questions other than those directed at determining  

                                                                                                                                                              



the respondent's capacity to make personal medical decisions.  We therefore vacate the  

                                                                                                                                                                                 



superior court's order and remand for proceedings consistent with this opinion.  

                                                                                                                                                       



II.           FACTS AND PROCEEDINGS  

                                              

                            Nora D. is an 82-year-old woman residing in an assisted living facility.1  

                                                                                                                                                                                         



                                                                                                                                                                     

Nora suffered a stroke in April 2016, and she reportedly continues to suffer resulting  



                                                                                         

physical and mental limitations.  In 2017 Nora gave her son, Cliff, a general power of  



                                                                                                                                                                2  

                                                                                                                                                                         

attorney.  In 2018 Adult Protective Services petitioned for a conservatorship  to protect  



                                                                                                                                                                              

Nora's finances and property after the office received reports of harm alleging that Cliff  



                                                                                                                                                                         

had made decisions not in Nora's best interests.  The Office of Public Advocacy (OPA)  



                                                                                      

was appointed as Nora's conservator in 2018.  



                                                                                                                                                                              

                            In  September  2019  Nora's  daughter,  Naomi,  petitioned  for  a  full  



                                                                                                                                                                             

guardianship for Nora.  Naomi alleged that a guardianship was necessary because Nora  



              1             We use pseudonyms to protect the privacy of those involved.                                                   



              2             A court may appoint a conservator to manage the property or financial                                                                    



affairs of an adult who is unable to do so because of "mental illness, mental deficiency,                                                                       

physical illness or disability, advanced age, chronic use of drugs, chronic intoxication,  

                                                                                                                                                             

fraud, confinement, detention by a foreign power, or disappearance." AS 13.26.401(2).                                                                      



                                                                                         -2-                                                                                 7526
  


----------------------- Page 3-----------------------

was unable to attend to her own physical needs and Cliff was unable to care for Nora.                                                                                                           



A day later Naomi's son, Kevin, petitioned for review of the conservatorship and sought                                                                                         

appointment as Nora's guardian, which could replace OPA's conservatorship.                                                                                                 3  



                                                                                                                                                                                                

                             In January 2020  the superior court held a hearing about the petitions.  



                                                                                                                                                                                  

Acknowledging  that  Nora's  capacity  was  "a  central  issue  in  the  case,"  the  court  



                                                                                                                

discussed the possibility of a mental examination.  In February Kevin sought a mental  

                                                                              4    Nora opposed the motion, arguing that a mental  

                                                                                                                                                                              

examination by his retained expert. 



               3             See   AS 13.26.316(c)(6) (providing that, in addition to other rights and                                                                                



powers, full guardian has powers and duties of conservator).                                                                       But see         AS 13.26.316(c)(7)   

(acknowledging that conservator and full guardian need not be same person).                                                                                                 



               4             Alaska Civil Rule 35(a) provides:  

                                                                                                         



                             When the mental or physical condition . . . of a party . . . is in  

                                                                                                                                                             

                             controversy, the court in which the action is pending may  

                                                                                                                                                       

                             order the party to submit to a physical or mental examination  

                                                                                                                                      

                             by a suitably licensed or certified examiner . . . . The order  

                                                                                                                                                     

                             may be made only on motion for good cause shown and upon  

                                                                                                                                                      

                             notice to the person to be examined and to all parties and  

                                                                                                                                                         

                              shall specify the time, place, manner, conditions, and scope  

                                                                                                                                                     

                             of the examination and the person or persons by whom it is  

                                                                                                                                                         

                             to be made.  

                                          



                             In a guardianship proceeding the superior court is required to appoint a  

                                                                                                                                                                                            

person known as a "visitor" to arrange evaluations and submit a report; the court also  

                                                                                                                                                                                     

must  appoint  its  own  expert.                                         See  AS  13.26.226(c)  (providing  as  part  of  initial  

                                                                                                                                                                                

guardianship procedures that "court shall appoint a visitor" who interviews respondent  

                                                                                                                                                                      

and proposed guardian, arranges evaluations, and files written report and that "court  

                                                                                                                                                                                

shall  also appoint an expert who has expertise in regard to the alleged or admitted  

                                                                                                                                                                          

incapacity  to  investigate  the  issue  of  incapacity."  (emphases  added));  see  also  

                                                                                                                                                                                   

AS 13.26.291(a) ("[T]he state shall bear the costs of the visitor and expert appointed  

                                                                                                                                                                        

under AS 13.26.226(c)." (emphasis added)). In this case the court appointed OPA as its  

                                                                                                                                                                                         

expert.  The court visitor explained at a hearing that OPA usually finds and appoints an  

                                                                                                                                                                                         

expert but that it had not done so in this case.  

                                                                                         



                                                                                            -3-                                                                                    7526
  


----------------------- Page 4-----------------------

 examination was not necessary becauseexisting                                                                                                                                                                                                                        evidence was sufficient to determineher                                                                                                                                                                  



 capacity.    Nora   also   argued   that   she   had   a   right   to   remain   silent   at   the   mental  



 examination.  



                                                                          The   superior   court   granted   Kevin's   motion   and   ordered   the   mental  



 examination.    The court permitted Nora's attorney and an expert of her choice to be                                                                                                                                                                                                                                                                                                                                                                                           



present at the examination, but it expressly stated that Nora's attorney and expert were                                                                                                                                                                                                                                                                                                                                                                            



not to interfere with the examination. The court stated that any party who interfered with                                                                                                                                                                                                                                                                                                                                                                             



the examination would be subject to sanctions, and it expressly prohibited Nora from                                                                                                                                                                                                                                                                                                                                                                               



remaining silent during the examination.                                                                                                                                                                                               Nora moved for reconsideration, which the                                                                                                                                                                                             



 court denied.   



                                                                          Nora petitioned for review, which we granted. We requested briefing from                                                                                                                                                                                                                                                                                                                   



the parties and two amici curiae, the Alaska Department of Health and Social Services                                                                                                                                                                                                                                                                                                                                                           



 (DHSS) and the Disability Law Center of Alaska.                                                                                                                                                                                                                                     We thank the amici for their helpful                                                                                                                               



participation in this matter.                                                                                 



III.                                  STANDARD OF REVIEW                                                                                    

                                      Statutory interpretation is a question of law that we review de novo.                                                                                                                                                                                                                                                                                                                     5  



                                     5                                    Rosauer v. Manos                                                                                    , 440 P.3d 145, 147 (Alaska 2019). Although we review                                                                                                                                                                                                                       



the superior court's decision to order an examination under Rule 35(a) for abuse of                                                                                                                                                                                                                                                                                                                                                                                               

 discretion,  Alyssa B. v. State, Dep't of Health & Soc. Servs.                                                                                                                                                                                                                                                                        , 123 P.3d 646, 648 (Alaska                                                                                  

2005), Nora does not challenge the court's decision to require the examination; rather                                                                                                                                                                                                                                                                                                                                                                        

 she asserts that certain provisions of the order are contrary to law.                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                         -4-                                                                                                                                                                                                                          7526
  


----------------------- Page 5-----------------------

IV.       DISCUSSION  



                                                                

          A.        Guardianship History And Policy  



                                                                 

                    1.       Guardianship history  



                                                                                                                   

                    In early 1980 a bill was introduced to comprehensively reform Alaska's  



                            6                                                             7  

                                                                                                                      

guardianship laws.            The bill did not make it out of committee,  but a similar bill, Senate  

                                                 8  S.B. 3's passage coincided with nationwide efforts  

                                                                                                                      

Bill (S.B.) 3, was passed in 1981. 

to reformguardianship statutes.9  

                                                                                                                         

                                                Reformadvocates emphasized that guardianships were  

                                                                                  10   Reform efforts focused on,  

                                                                                                                           

a massive government intrusion into individuals' lives. 



among other things, enhancing due process protections for individuals allegedly in need  

                                                                                                                         



of guardianships, increasing the use of partial or limited guardianships as opposed to  

                                                                                                                             

plenary guardianships, and increasing scrutiny for incapacity determinations.11  

                                                                                            



                    S.B. 3 aligned with these objectives. Alaska's guardianship statutes before  

                                                                                                                       

the 1981 amendments did not contemplate the possibility of a partial guardianship.12  By  

                                                                                                                            



contrast, S.B. 3 provided that guardianships "shall be used only as is necessary  to  

                                                                                                             



          6         House  Bill  (H.B.)  572,   11th  Leg.,  2d  Sess.  (1980).  



          7         See  H.B.  572  History  of  Legislation, 11th  Leg.,  2d  Sess.  (July   17,   1980)  



(showing  bill  was  referred  to  committees  in  Senate  with  no  further  action  taken).  



          8         Compare  H.B.  572,  with  S.B.  3,   12th  Leg.,   1st  Sess.  (Jan.   13,   1981).  



          9         See   U.S.   SENATE   SPECIAL   COMM.   ON   AGING,   115TH   CONG.,   ENSURING  



TRUST:  STRENGTHENING   STATE  EFFORTS  TO  OVERHAUL  THE  GUARDIANSHIP  PROCESS  

              

AND  PROTECT OLDER AMERICANS   10-11  (2018).  

                                  



          10        Lawrence A.  Frolik,  Promoting Judicial  Acceptance And   Use  of  Limited  



Guardianship,  31  STETSON  L.  REV.  735,  739  (2002).  



          11        U.S.  SENATE  SPECIAL  COMM. ON  AGING,  supra  note  9,  at   10-11.  



          12        See  former  AS   13.26.110  (1980).  



                                                             -5-                                                        7526
  


----------------------- Page 6-----------------------

promote and protect the well-being of the person, shall be designed to encourage the                                                            



development of maximum self-reliance and independence of the person, and shall be                                                                



ordered   only   to the extent necessitated                            by the person's actual mental                          and  physical  

                     13   Supporters of the bill applauded the creation of and emphasis on using  

limitations."                                                                                                                               

limited guardianships.14  S.B. 3 also increased due process protections by creating a more  

                                                                                                                                            

precise process for imposing a guardianship15  and requiring courts to create specific  

                                                                                                                                        



            13         Ch.  83,  §  4,  SLA   1981.  



            14         See,  e.g.,  Minutes,  Sen.  Fin.  Comm.,  Hearing  on  S.B.  3,  12th  Leg.,  1st  Sess.  



684   (May  20,   1981)   (statement   of   Sen.   Charles  Parr)   (noting   one  major   emphasis   of  

legislation  was   that   "guardianship[s]   do[]  not  need   to  be   100%");   Position   Paper on  

S.B.   3   from   Governor's   Council   for   the   Handicapped   &   Gifted   (Feb.   1981)   (noting  

council  supported  bill  because,  among  other  things, "S.B. 3 provides for  partial or  limited  

guardianship  as  well  as  full  or  plenary  guardianship  so  that an individual's  rights  are  

modified  only  in  those  areas  of  incapacity")  (available  in  Sen.  Judiciary  Comm.  bill  file);  

Position  Paper   on   S.B.   3   from  Dep't   of  Health   &   Soc.   Servs.   (June  4,   1981)   (noting  

DHSS  supported  bill  because,  among  other  things,  bill  "provides  for  partial guardianship  

orders  when  the  ward  does  not  need   a  total  guardianship")   (available  in  H.  Judiciary  

Comm.  bill  file).   



            15         Compareformer AS 13.26.105-.110(1980), with ch. 83, §§ 6-7, SLA 1981;  

                                                                                                                                            

see also Position Paper from Governor's Council for the Handicapped & Gifted, supra  

                                                                                                                                            

note  14, at 4-5 (noting that before passage of S.B. 3, changes were needed to improve  

                                                                                                                                  

due process protections under guardianship statutes) (available in Sen. Judiciary Comm.  

                                                                                                                                         

bill file); Hearing on S.B. 3 Before the  Sen. Judiciary Comm.,  12th Leg.,  1st Sess. 4  

                                                                                                                                                   

(Mar. 18, 1981) (testimony of John Nuttall, Governor's Council for the Handicapped &  

                                                                                                                                                  

Gifted)  (noting  council  supported  bill  because  "it  provide[d]  clear  procedures  for  

                                                                                                                          

guardianship proceedings"  and  included time  limits on petitions  for  appointment  of  

                                                                                                                                                 

guardians) (available in  Sen. Judiciary Comm. bill  file); Letter from Paul E. Turner,  

                                                                                                                                        

Clinical Psychologist, Cent. Peninsula Mental Health Ctr., to  Sen. Patrick M. Rodey,  

                                                                                                                                         

Chairman, Sen. Judiciary Comm. (Mar. 26, 1981) (noting he supported S.B. 3 because  

                                                                                                                                       

"current  state statutes are  so broad  and ambiguous  [that] the rights  of an individual  

                                                                                                                                   

thought to be incapacitated could be easily violated" and that enhanced court procedures  

                                                                                                                                   

could reduce long wait times) (available in Sen. Judiciary Comm. bill file).  

                                                                                                                                   



                                                                        -6-                                                                 7526
  


----------------------- Page 7-----------------------

                                                                                                                                           16  

guardianship plans outlining guardians' responsibilities and powers.                                                                            And the bill made        



an incapacity determination dependent on ability to provide for a person's own health                                                                                  

or safety rather than on a mental diagnosis.                                             17  



                                                                          

                            2.            Guardianship policy  



                                                                                                                                                                        

                            The policy behind the adult guardianship statutes has been explicitly stated  



               

by the legislature:  



                                                                                                                                               

                            Guardianship for an incapacitated person shall be used only  

                                                                                                                                                  

                            as is necessary to promote and protect the well-being of the  

                                                                                                                                                   

                            person, shall be designed to encourage the development of  

                                                                                                                                                 

                            maximum self-reliance and independence of the person, and  

                                                                                                                                                

                            shall  be  ordered  only  to  the  extent  necessitated  by  the  

                                                                                                                                               

                            person's   actual   mental   and   physical   limitations.                                                           An  

                                                                                                                                    

                            incapacitated person for whomaguardian has beenappointed  

                                                                                                                                                

                            is not presumed to be incompetent and retains all legal and  

                                                                                                                                                   

                            civil rights except those that have been expressly limited by  

                                                                                                                                      

                            court order or have been specifically granted to the guardian  

                                                      [18]  

                                          

                            by the court. 

                            We have described this as a "strong policy of restraint."19  

                                                                                                                           



              B.            Guardianship Process  

                                                            



                            Any  person  may  petition  the  superior  court  to  appoint  a  guardian  for  

                                                                                                                                                                             

another person.20  The petition must explain, among other things, the "nature and degree"  

                                                                                                                                                                    



of the respondent's incapacity and the type and duration of guardianship assistance  

                                                                                                                                                              



              16            Ch. 83, § 7, SLA 1981.               



              17            Compare  ch. 83, § 1, SLA 1981,                                     with  former AS 13.26.005(1) (1980).                           



              18            AS 13.26.201.   



              19           In re O.S.D.              , 672 P.2d 1304, 1306 (Alaska 1983).                             



              20            AS 13.26.221(a).   



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----------------------- Page 8-----------------------

             21                                                                                                  22  

sought.          After the petition is received, the court appoints a visitor                                        and an expert with       



                                                                             23  

expertise in the area of the alleged incapacity.                                                                                   

                                                                                 The visitor "interviews" the respondent  



                                                                                                                                                

and the person seeking to be the respondent's guardian, if any, and files a report with the  

          24                                                                                                                             25   The  

              The expert "examine[s]" the respondent and files a report with the court.                                                        

court.                                                                                                                          

court then holds a hearing on the incapacity issue;26  at the hearing the respondent is  

                                                                                                                                                  

entitled to present evidence, cross-examine witnesses, and remain silent.27  

                                                                                                                   



                       If the court finds by clear and convincing evidence that the respondent is  

                                                                            



incapacitated, the court must determine "the extent of the incapacity and the feasibility  

                                                                                                                                    

of alternatives to guardianship to meet the needs of the respondent."28                                                    The court may  

                                                                                                                                              



appoint a full guardian only if it finds "that the respondent is totally without capacity to  

                                                                                                                                                  



care for the respondent and that a combination of alternatives to guardianship and the  

                                                                                                                                                



appointment of a partial guardian is not feasible or adequate to meet the needs of the  

                                                                                                                                                



           21          AS 13.26.221(b).   



           22  

                                                                                                                                                

                       See  AS  13.26.005(12)  (defining  "visitor"  as  "a  person  trained  or  

                                                                                                                                  

experienced  in  law,  medical  care,  mental  health  care,  pastoral  care,  education,  

                                                                                                                                                

rehabilitation, or social work, who is an officer, employee, or special appointee of the  

                                                                 

court with no personal interest in the proceedings").  



           23          AS 13.26.226(c).  

                              



           24          Id. ; see  also  AS  13.26.236(c)  (providing  requirements  for  contents  of  

                                                                                                                                                 

visitor's report).  

                



           25          AS 13.26.226(c).  

                              



           26          AS 13.26.226(a).  

                              



           27          AS 13.26.251(a).  

                              



           28          AS 13.26.251(b)-(c).  

                              



                                                                        -8-                                                                 7526
  


----------------------- Page 9-----------------------

                         29                                                                                                      30  

respondent."                  The court otherwise must appoint a partial guardian                                                   or, if "alternatives     



to guardianship are feasible and adequate to meet the needs of the respondent, the court                                                                      

                                                                                              31   If the court appoints a full or partial  

may . . . order an alternative form of protection."                                                                                                         

                                                                                                                                                         32    And  

guardian, it must issue a guardianship order detailing the guardian's authority.                                                                               

                                                                                                                                       



within 90 days of the guardianship order's distribution, the guardian must submit a  

                                                                                                                                                                     



guardianship                 implementation                     report          describing              the       "guardian's                program              for  

                                                                                                                                                               

implementing the guardianship plan."33                                          The guardian thereafter is required to submit  

                                                                                                                                                          



annual reports, and a court visitor must review the guardianship and submit a report  

                                                                                                                                                           

every three years.34  

                        



             29           AS   13.26.251(f).    A   full   guardian   "has   the   same   powers   and   duties  



respecting   the   ward   that   a   parent   has   respecting   an   unemancipated   minor   child."  

AS 13.26.316(c).   



             30           AS 13.26.251(e) ("If it is found that the respondent is able to performsome,  

                                                                                                                                                             

but not all, of the functions necessary to care for the respondent, and alternatives to  

                                                                                                                                                                    

guardianship are not feasible or adequate to provide for the needs of the respondent, the  

                                                                                                                                                                  

court may appoint a partial guardian, but may not appoint a full guardian.").  A partial  

                                                                                                                                                            

guardian is therefore authorized to act on behalf of the ward only to the extent that  

                                                                                                                                                                

person is found to be incapacitated.   See id.; see also  AS 13.26.005(6) (" '[P]artial  

                                                                                                                                                      

guardian' means a guardian who possesses fewer than all of the legal duties and powers  

                                                                                                                                                          

of  a  full  guardian,  and  whose  rights,  powers,  and  duties  have  been  specifically  

                                                                                                                                                

enumerated by court order.").  

                                                           



             31           AS  13.26.251(d).  

                                                              



             32           AS  13.26.266.  

                                  



             33           AS  13.26.271.  

                                                        



             34           AS  13.26.276.  

                                  



                                                                                 -9-                                                                          7526
  


----------------------- Page 10-----------------------

                    C.	                Scope Of Respondent's Right To Refuse To Answer Questions Under                                                                                                                                 

                                       AS 13.26.241(a)   



                                       1.	                The statute   



                                       The              primary                     issue                in         this            case              is         the           proper                   interpretation                               of  



AS 13.26.241(a), providing:                         



                                       A ward or respondent has the right to refuse to respond to                                                                                                             

                                       questions   in   the   course   of   examinations   and   evaluations.   

                                       However, the ward or respondent may be required to submit                                                                                                 

                                       to   interviews   for   the   purpose   of   ascertaining   whether   the  

                                       ward   or   respondent  lacks   the   capacity   to   make   informed  

                                       decisions about care and treatment services.                                                                                   [35]  



                                       2.	                The arguments  

                                                                        



                                       Nora contends that AS 13.26.241(a) permits her to remain silent at a court- 

                                                                                                                                                                                                                                       



ordered                      mental                   examination.                                Nora                 contends                        that             the            term                "interviews"                              in  

                                                                                                                                                                                                                                                 



AS 13.26.241(a) refers to interactions with the court visitor and her attorney and that the  

                                                                                                                                                                                                                                                   



terms  "examinations  and  evaluations"  refer  to  interactions  with  experts  and  other  

                                                                                                                                                                                                                                          



professionals.   Nora argues that she cannot be compelled to answer questions at the  

                                                                                                                                                                                                                                                 



examination because the examination is not an interview.  

                                                                                                                                         



                                       Kevin  spends  almost  the  entirety  of  his  briefing  claiming  that  Nora's  

                                                                                                                                                                                                                                      



publicly appointed attorney is acting unethically and against Nora's best interests. These  

                                                                                                                                                                                                                                          



claims  are wholly  unsupported  by  the  record  before us,  which  reflects that Nora's  

                                                                                                                                                                                                                                      



attorney has represented Nora in an appropriate and zealous manner.  

                                                                                                                                                                                



                   35                  Wenotethat                          theadult guardianshipstatutesprovideaseparate,independent                                                                                    



basis for respondents remaining silent: A "respondent at all times has the right to refuse                                                                                                                                               

to  answer   questions   if   the   answers   may   tend   to   incriminate   the   .   .   .   respondent."   

AS 13.26.241(b).   This provision is not directly at issue in this case, because Nora has                                                                                                               

not argued that the examination may tend to incriminate her.                                                                                                         



                                                                                                                        -10-	                                                                                                                7526
  


----------------------- Page 11-----------------------

                                               Amicus   Disability   Law   Center,   supporting   Nora's   position,   argues  



generally that AS 13.26.241(a) should be interpreted to "give maximum protection to a                                                                                                                                                                                                                       



respondent's rights, including the right to refuse to answer questions and not to have that                                                                                                                                                                                                        



refusal commented upon."                                                                       Amicus DHSS disputes Nora's interpretation, arguing that  



"[s]tandard definitions of 'interview' " support the conclusion that a professional or                                                                                                                                                                                                                 



expert may interview a respondent. DHSS argues that the right to remain silent depends                                                                                                                                                                                             



on the interview's purpose and that AS 13.26.241(a) requires an individual to answer                                                                                                                                                                                                  



questions whenever the interview is necessary to determine an individual's "decision-  



making capacity" and "ability to take care of her own needs."                                                                                                                                                                       DHSS suggests that   



respondents could not be compelled to answer questions when other forms of incapacity,                                                                                                                                                                                    



such as physical limitations, are at issue or when the interview's purpose is "diagnosing                                                                                                                                                                            



a   mental   disorder,   assessing   what   services   the   respondent   needs,  finding   out   her  



preferences, or evaluating her capacity to work, learn job skills,                                                                                                                                                       or get further education."                                                                



                                               3.                     Interpretation of the statute                                                   



                                               "Weinterpretstatutes'accordingto reason,                                                                                                           practicality, and                                        common sense,  



taking into account the plain meaning and purpose of the law as well as the intent of the                                                                                                                                                                                                            

                                     36  We use a sliding scale approach: "[T]he plainer the language of the statute,  

drafters.' "                                                                                                                                                                                                                                                                           

the more convincing contrary legislative history must be."37  "[W]henever possible, [we]  

                                                                                                                                                                                                                                                                                                



interpret each part or section of a statute with every other part or section, so as to create  

                                                                                                                                                                                                                                                                                           

a harmonious whole."38  

                                                  



                       36                      Marathon Oil Co. v. State, Dep't of Nat. Res.                                                                                                            , 254 P.3d 1078, 1082 (Alaska                                                



2011) (quoting                                        Native Vill. of Elim v. State                                                                    , 990 P.2d 1, 5 (Alaska 1999)).                                                   



                       37                      Id. (quoting Alaskans for Efficient Gov't, Inc. v. Knowles , 91 P.3d 273, 275  

                                                                                                                                                                                                                                                                                                   

(Alaska 2004)).  

                             



                       38                      State, Dep't of Commerce, Cmty. &Econ. Dev., Div. of Ins. v. Progressive  

                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                 (continued...)  



                                                                                                                                                 -11-                                                                                                                                          7526
  


----------------------- Page 12-----------------------

                       Although Nora presents interesting arguments about the textual distinction                                



                                                                                                      39  

between "interviews" and "examinations and evaluations,"                                                                                    

                                                                                                          we need not reach that  



                                                                                           

issue.  We instead focus our analysis on the meaning of "interviews for the purpose of  



                                                                                                                                  

ascertaining  whether  the  ward  or  respondent  lacks  the  capacity  to  make  informed  

                                                                          40   The guardianship statutes recognize that  

                                                                                                                                            

decisions about care and treatment services." 



capacity is not an all or nothing proposition: An individual may lack capacity to manage  

                                                                                                                                      



some aspects of daily life while simultaneously having capacity to manage all other  

                                                                                                                                         

aspects.41          We  therefore  hold  that  it  was  erroneous  to  compel  Nora  to  answer  all  

                                                                                                                                             



questions  at  the  mental  health  examination  because  a  guardianship  proceeding  

                                                                                                                              



respondent  can  be  compelled  to  answer  only  questions  intended  to  determine  the  

                                                                                                                                            



respondent's capacity to make personal medical decisions. This conclusion is supported  

                                                                                                                                  



by the guardianship statutes' text, relevant legislative history, and policy.  

                                                                                                                 



                       The text of AS 13.26.241(a) and other adult guardianship statutes supports  

                                                                                                                                    



concluding that "interviews for the purpose of ascertaining capacity to make informed  

                                                                                                                    



decisions about care and treatment services" refers to interviews to determine capacity  

                                                                                                                                    



to make personal medical decisions.  The term "informed decisions" is not defined by  

                               



           38          (...continued)  



                                                                                                                                               

Cas. Ins. Co., 165 P.3d 624, 629 (Alaska 2007) (quoting Kodiak Island Borough v.  

                                                                                    

Exxon Corp., 991 P.2d 757, 761 (Alaska 1999)).  



           39          See Alaska Spine Ctr., LLC v. Mat-Su Valley Med. Ctr., LLC, 440 P.3d 176,  

                                                                                                                                           

 182 (Alaska 2019) ("Principles of statutory construction mandate that we assume the  

                                                                                                                                             

legislature meant to  differentiate  between  two  concepts when  it used  two  different  

                                                                                                                                   

terms.").  

                 



           40          AS 13.26.241(a).  

                              



           41          See AS 13.26.251(e) (providing for partial guardianship for persons able  

                                                                                     

to perform some but not all necessary functions); see also supra note 14.  

                                                                                                                      



                                                                     -12-                                                                7526
  


----------------------- Page 13-----------------------

                                              42  

the guardianship statutes,                        but it is textually similar to "informed consent," the long-                                    



recognized   doctrine   requiring   a   patient's   consent   before   providing   any   medical  

                                        43  The doctrine is based in part on an individual's right to personal  

treatments or services.                                                                                                                      

                                                                                                           44   And "care and treatment  

autonomy and to make decisions regarding one's own body.                                                                                   

                                                                                                  

services" suggests resources obtained for one's health.45  

                                                                                                       



                        A similar distinction is evident elsewhereintheadult guardianship statutes.  

                                                                                                                                                              



Although a guardian generally "may give consents or approvals necessary to enable the  

                                                                                                                                                       



            42          See  AS 13.26.005 (defining terms used in guardianship statutes).                                    



            43  

                                                                                                                                                       

                        See AS 09.55.556(a) (making "provider . . . liable for failure to obtain the  

informed consent of a patient if . . . the provider . . . failed to inform the patient of the                                                          

                                                                             

common risks and reasonable alternatives to the proposed treatment or procedure, and  

                                                                                                                                           

that but for that failure the claimant would not have consented to the proposed treatment  

or   procedure");   AS   47.30.839   (requiring   hearing   on   individual's   capacity   to   give  

                                                                                                                                                   

informed consent to medication before evaluation or treatment facility can obtain court  

                                                                                                                                         

approval for administration of psychotropic medication); see also 70 C.J.S. Physicians  

                                                                                                                  

and Surgeons § 136 (2021) (describing necessity for informed consent).  



            44          Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 269 (1990) ("Th[e]  

                                                                                                                                              

notion of bodily integrity has been embodied in the requirement that informed consent  

                                                                                                                                              

is generally required for medical treatment."); 70 C.J.S. Physicians and Surgeons § 137  

                                                                                                                                                     

(2021).  

               



            45          We previously have acknowledged expert testimony concluding that a  

                                                                                                                                                          

respondent lacked the ability to make "informed medical decisions" when reviewing a  

                                                                                                                                                          

superior court's determination that an individual was fully incapacitated. In re W.A., 193  

                                                                                                                                                      

P.3d 743, 745, 747 (Alaska 2008) (noting that expert conducted interview and created  

                                                                                                                     

report "intended to focus on whether [the respondent] 'lacks a capacity to make informed  

                                                                                                                                            

decisions  about  care  and  treatment  services'  "  and  that  another  expert  concluded  

                                                                                                                                        

respondent had "severe deficits with medical decision-making" that "likely preclud[ed]  

                                                                                                                                        

his ability to make informed medical decisions regarding his treatment").  

                                                                                                               



                                                                          -13-                                                                     7526
  


----------------------- Page 14-----------------------

                                                                                                                                                                  46  

ward to receive medical or other professional care, counsel, treatment, or services,"                                                                                a  



guardian may not take an enumerated list of actions, most relating to the incapacitated                                            

                                             47    This demonstrates that the legislature understood personal  

person's medical care.                                                                                                                                 



medical  decisions  to  involve  a  heightened  risk  of  erroneous  deprivation  of  liberty  

                                                                                                                                                           



warranting additional procedural protections.  And a respondent has the right to be free  

                                                                                                                                                                 

frompsychotropicmedications' effects during judicialproceedings,48 suggestingthat the  

                                                                                                                                                                   



legislature  understood  some  medical  decisions  could  greatly  affect  the  ability  to  

                                                                                                                                                    



participate in important affairs.  

                                                



                          More generally, the common law recognizes that important interests of  

                                                                                                                                                                    



dignity, self-determination, autonomy, and privacy are implicated by an individual's  

                                                                                                                                                 

ability to make personal medical decisions.49   The common law has long recognized the  

                                                                                                                                                                   

                                                                                            50  The United States Supreme Court has  

right to be free fromunwanted medical touching.                                                                                                                   

                                                                           



             46           AS 13.26.316(c)(5).   



             47  

                                                                                                                                                           

                          AS 13.26.316(e) (providing that guardian may not, among other things,  

place respondent in institution or consent on behalf of respondent to removal of organs,                                                                  

                                                                                                                                                            

abortion,experimentalprocedures,orwithholding lifesavingprocedures exceptin certain  

                                                                                                                                                

circumstances).   The remaining expressly prohibited activities relate to fundamental  

rights, including voting and marriage.                                      Id.   



             48           AS 13.26.256.  

                                  



             49           "We  presume  that  the  legislature  is  aware  of  the  common  law  when  

                                                                                                                                                             

enacting statutes,"  Young v. Embley, 143 P.3d 936, 945 (Alaska 2006), and we have  

                                                                                                                                                               

stated that "[t]he common law . . . furnishes one of the most reliable backgrounds upon  

                                                                                                                                                               

which analysis of the objects and purposes of a statute can be determined," id. (quoting  

                                                                                                                                                        

NORMAN  A. S               INGER, S        UTHERLAND  STATUTORY  CONSTRUCTION  § 50:01, at 139 (6th ed.                                                            

2000)).  



             50           See, e.g., Schloendorff v. Soc'y of N.Y. Hosp. 105 N.E. 92, 93 (N.Y. 1914)
  

                                                                                                                                                             

abrogated on other grounds by Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957) ("Every
  

                                                                                                                                                         

                                                                                                                                              (continued...)
  



                                                                                -14-                                                                          7526
  


----------------------- Page 15-----------------------

explained that "[n]o right is held more sacred, or is more carefully guarded, by the                                                              



common law, than the right of every individual to the possession and control of his own                                                          



person,   free   from   all   restraint   or   interference   of   others,   unless   by   clear   and  



                                                           51  

unquestionable authority of law."                              



                       We  have  recognized  that  "the  right  to  make  decisions  about  medical  

                                                                                                                                          



treatments for oneself . . . is a fundamental liberty and privacy right" under the Alaska  

                                                                                                                                            

Constitution,52  and the United States Supreme Court similarly has held that the right to  

                                                                                                                                                     

refusemedical treatment is aliberty interest protectedby theUnited States Constitution.53  

                                                                                                                                                          



Because an important and long-recognized liberty interest is at stake, it makes sense that  

                                                                                                                                                  



the legislature would seek to provide the court additional evidence about a respondent's  

                                                                                                                                 



ability  to  make  personal  medical  decisions  (by  requiring  the respondent  to  answer  

                                                                                                                                           



questions) to better protect against the risk of an erroneous deprivation.  This exception  

                                                                                                                                       



to the respondent's right to refuse to answer questions ensures that a court has ample  

                                                                                                                                             



evidence before determining whether a guardian is permitted to make sensitive and  

                                                                                                                                                 



personal decisions affecting the respondent's bodily autonomy, dignity, and privacy.  

                                                                                                                                                       



            50          (...continued)  



                                                                                                                                                

human being of adult years and sound mind has a right to determine what shall be done  

                                                                                                                                         

with his own body; and a surgeon who performs an operation without his patient's  

                                                                                                                                                

consent commits an assault, for which he is liable in damages."); see also Cruzan v. Dir.,  

                                                                                                                                                     

Mo. Dep't of Health, 497 U.S. 261, 269 (1990) ("At common law, even the touching of  

                                                                                                                                      

one person by another without consent and without legal justification was a battery.").  



            51          Cruzan, 497 U.S. at 269 (quoting Union Pac. R.R. Co. v. Botsford, 141 U.S.  

                                                                                                                                                 

250, 251 (1891)).  

                  



            52         Huffman v. State, 204 P.3d 339, 346 (Alaska 2009).  

                                                                                                                    



            53          Cruzan, 497 U.S. at 278.  But see id.  at 279 (noting that interest is not  

                                                                                                                                                  

absolute and must be balanced against relevant state interests).  

                                                                                              



                                                                        -15-                                                                   7526
  


----------------------- Page 16-----------------------

                                             Thisinterpretation                                           alsois supportedbytherelevant guardianshiplegislative                                                                                                 



history, showing that the legislature understood S.B. 3 would increase due process                                                                                                                                                                                     



protections   for,   and   more   thoroughly   protect   the   rights   of,   allegedly   incapacitated  



persons.   A narrow interpretation of AS 13.26.241(a)'s second sentence, preserving the                                                                                                                                                                                                



right to refuse to answer questions (and therefore protect one's privacy) when other                                                                                                                                                                                           



forms of incapacity are at issue, is consistent with the legislature's intent. The legislature                                                                                                                                                                 



also sought to increase the use of limited or partial guardianships, such that guardians                                                                                                                                                                        



were authorized only to the extent of the incapacitation.                                                                                                                                            This is consistent with an                                                         



interpretation of the statute recognizing an individual can be incapacitated in one respect                                                                                                                                                                               



and competent in another.                                                               The conclusion that "incapacity to make informed decisions                                                                                                                



about care and treatment services" refers to one's inability to make personal medical                                                                                                                                                 



decisions therefore is supported by the guardianship legislative history.                                                                                                                                                                       



                                             Finally,   this   interpretation   also   is   supported   by   the   "strong   policy   of  

                                                                                                                                                                54   A narrow reading of the exception to  

restraint" behind the adult guardianship statutes.                                                                                                                                                                                                                                         



the right to refuse to answer questions may make it more difficult to find, by clear and  

                                                                                                                                                                                                                                                                                     

convincing  evidence,55                                                           that  a  guardian  is  warranted,  but  it  is  consistent  with  the  

                                                                                                                                                                                                                                                                                     



legislature's determination that guardianships should be imposed only when and to the  

                                                                                                                                                                                                                                                                                       



extent the necessity for one is clearly shown.  

                                                                                                                              



                                             DHSS seems to agree that the right to remain silent in a guardianship  

                                                                                                                                                                                                                                                    



proceeding examination depends on the examination's purpose.   DHSS argues for a  

                                                                                                                                                                                                                                                                                             



broad interpretation, contending that a respondent may be required to participate in an  

                                                                                                                                                                                                                                           



examination for the purpose of ascertaining general capacity. DHSS argues that the right  

                                                                                                                                                                                                                                                                                  



                      54                    In re O.S.D.                              , 672 P.2d 1304, 1306 (Alaska 1983).                                                                                           



                      55  

                                                                                                                                                                                                                                                            

                                             AS 13.26.251(b) (requiring incapacity be proved by clear and convincing  

                                                                                                                                                                                                                                                                  

evidence); In  re O.S.D., 672 P.2d  at 1306 (holding  clear  and  convincing  evidence  

                                                                                                                                                                                                                                                                                         

standard applies to any determination that may lead to imposition of guardianship).  



                                                                                                                                          -16-                                                                                                                                   7526
  


----------------------- Page 17-----------------------

to remain silent would apply only when incapacity based on physical limitations is at                                                                                                                             



issue.   But even assuming DHSS is correct that a person could be found incapacitated                                                                                                 

                                                                          56  it is not clear that physical limitations "are more easily  

based on physical limitations,                                                                                                                                                                          



assessed without [a respondent's] input if she declines to answer questions during those  

                                                                                                                                                                                                          



evaluations or examinations" as DHSS argues.  

                                                                                                   



                                 DHSS also argues that the right to refuse to answer questions applies only  

                                                                                                                                                                                                            



to interviews for purposes other than determining decision-making ability, but there is  

                                                                                                                                                                                           



no meaningful distinction to be drawn between interviews to determine decision-making  

                                                                                                                                                                              



capacity and interviews for other purposes in a guardianship setting.  A respondent's  

                                                                                                                                                                                       



mental limitations and their effect on the respondent's ability to make decisions likely  

                                                                                              



would be relevant to questions designed to "diagnos[e] a mental disorder, assess[] what  

                                                                                                                                                                                                           



services the respondent needs, . . . or evaluat[e] her capacity to work, learn job skills, or  

                                                                                                                                                                                                                  



get further education."  The only purpose suggested by DHSS that does not obviously  

                                                                                                                                                             



invite inquiry into a respondent's mental limitations is determining the individual's  

                                                                                                                                                                                        



preferences.   Interpreting a "right to refuse to respond to questions in the course of  

                                                                                                                                                                                                                 



examinations and evaluations" to mean a respondent has the right to remain silent only  

                                                                                                                                                                                                            



during  questions  designed  to  determine  preferences  would  allow  the  exception  in  

                                                                                                                                                                                                                 



AS 13.26.241(a)'s second sentence to swallow the right created in the first sentence.  

                                                                                                                                                                                                                         



And the limited legislative history offered by DHSS specific to AS 13.26.241(a) does not  

                                                                                                                                                                                                               

clearly support DHSS's interpretation.57  

                                                             



                 56              AS 13.26.005(5) (" '[I]ncapacitated person' means a person whose ability                                                                                              



to receive and evaluate information or to communicate decisions is impaired for reasons                                                                                                             

other than minority to the extent that the person lacks the ability to provide the essential                                                                                                     

requirements for . . . physical health or safety without court-ordered assistance . . . .").                                                                                                               



                 57              But see Memorandum from Bernie M. Tuggle, Legislative Legal Extern,  

                                                                                                                                                                                                     

to Sen. Patrick M. Rodey, Chairman, Sen. Judiciary Comm. 2 (Feb. 25, 1981) ("[A]  

                                                                                                                                                                                                         

                                                                                                                                                                                     (continued...)  



                                                                                                      -17-                                                                                                7526
  


----------------------- Page 18-----------------------

                                       We hold that a respondent can be compelled to answer questions designed                                                                                                                        



to determine the respondent's capacity to make personal medical decisions. In this case,                                                                                                                                                          



the parties suggested at oral argument that Nora's evaluation would be a psychiatric                                                                                                                                        



examination. Based on the parties' description of the examination, it seems unlikely that                                                                                                                                                            



the examination is intended to determine Nora's capacity to make personal medical                                                                                                                                                       



decisions.   Nora therefore may refuse to answer questions at the examination consistent                                                                                                                                          

with this opinion, and her attorney may advise her of this right at the examination.                                                                                                                                                                58  



V.                  CONCLUSION  



                                       We  VACATE  the  superior  court's  order  and  REMAND  for  further  

                                                                                                                                                                                                                                          



proceedings consistent with this opinion.  

                                                                                                 



                    57                  (...continued)  



                                                                                                                                                                                                                                                   

respondent has the right to refuse to answer questions during an evaluation, [but] he may  

                                                                                                                                                                                                                                                      

be required to give answers to determine whether he lacks capacity.").  Although we  

                                                                                                                                                                                                                                 

have relied on or acknowledged a variety of forms of legislative history when discerning  

                                                                                                                                                                                                                                                          

legislative intent, we "have indicated that one of the most important considerations is  

                                                                                                                                                                                                                                            

reliability."  Cora G. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                                                                                                   

461 P.3d 1265, 1281 (Alaska 2020). Because the extern's memorandum contained only  

                                                                                                                                                                                                                                      

cursory analysis, we do not consider it a reliable indicator of the legislature's intent.  



                    58                 AS  13.26.241(c)  ("During  an  interview  or  testing  conducted  under  

                                                                                                                                                                                                         

AS 13.26.201-13.26.316, a ward or respondent has the right to be accompanied by an  

                                                                                                                                                                                                                                                         

attorney or expert of the ward's or respondent's own choosing.").  

                                                                                                                                                                                                    



                                                                                                                          -18-                                                                                                                   7526
  

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