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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Trapp v. State of Alaska (05/13/2005) sp-5895

Trapp v. State of Alaska (05/13/2005) sp-5895

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

SUSAN TRAPP,                   )
                               )   Supreme Court No. S-11280
               Appellant,      )
                               )   Superior Court No.
     v.                        )   3AN-00-06545 CI
                               )
STATE OF ALASKA,               )
OFFICE OF PUBLIC ADVOCACY,     )   O P I N I O N
                               )
               Appellee.       )   [No. 5895 - May 13, 2005]
                               )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   John  A.  Treptow,  Wendy   E.
          Leukuma, Dorsey & Whitney LLP, Anchorage, for
          Appellant.   Venable Vermont, Jr.,  Assistant
          Attorney General, Anchorage, Gregg D. Renkes,
          Attorney General, Juneau, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          MATTHEWS, Justice.

I.   INTRODUCTION

          Under  Alaska  law,  an  individual  may  petition  the

superior court to appoint a conservator with power to manage  the

individuals  finances,  or  a guardian  with  a  broader,  quasi-

parental  power to promote the individuals well-being.  In  cases

where  no  private person is willing and competent to serve,  the

state  Office  of  Public  Advocacy  (OPA)  is  appointed  as   a

conservator  or guardian.  OPA was appointed to be  Susan  Trapps

conservator  in  1995, pursuant to Trapps petition.   Before  and

during  OPAs  conservatorship, Trapp was addicted  to  drugs  and

alcohol,  was  physically and mentally  ill,  and  was  sometimes

homeless.   The  main  question in this appeal  is  whether  OPA,

knowing  Trapps  problems, had a duty  to  seek  to  convert  the

conservatorship  into a guardianship.  We hold that  OPA  had  no

such  duty, and affirm the judgment of the superior court.  Trapp

also  argues  OPA  should  have made a  report  of  harm  to  the

Department of Health and Social Services (DHSS), but  we  do  not

consider  this  argument on the merits because  Trapp  entered  a

stipulation dismissing her duty-to-report claim.

II.  FACTS AND PROCEEDINGS

          Because  the  superior court decided the case  in  OPAs

favor  on summary judgment motions, we will present the facts  in

the light most favorable to Trapp.1  In 1995 Trapp petitioned the

superior  court  to appoint a conservator for herself.   After  a

hearing,  the superior court entered an order appointing  OPA  as

conservator with the powers and duties set forth in AS  13.26.280

and  as set out in the conservatorship plan. As discussed in more

detail  below, AS 13.26.280 authorizes conservators to undertake,

without   court  authorization,  twenty-five  acts   related   to

management of the protected persons property; the conservatorship

plan   can   also   authorize   additional   acts.    Here    the

conservatorship plan approved by the superior court was  routine;

it  authorized OPA to collect funds, pay certain living expenses,

and manage Trapps property.2

          Even   before   OPA  had  been  appointed   as   Trapps

conservator,  Trapp  had  a history of drug  and  alcohol  abuse,

physical  and  mental illness, and homelessness.  These  problems

continued  through  the  conservatorship,  with  Trapp   spending

significant amounts of time homeless or without a permanent home,

in jail, or in the Alaska Psychiatric Institute (API).  According

to  a May 2003 statement by Trapps treating physician, [o]ver the

past many years, in addition to 51 admissions to API, the patient

has  been at Clitheroe Detox Program 48 times, has been convicted

of misdemeanor offenses about 40 times, and over the past several

          years has been seen at the Providence Anchorage emergency room

about  200 times.  The OPA employee assigned to Trapps case  knew

about these problems.

          Trapps  grievances  against OPA have  evolved  somewhat

over time.  Initially Trapp asked the superior court to terminate

the  conservatorship; these requests were denied,  although  once

the  superior court ordered OPA and Trapp to agree on a  schedule

to  increase  Trapps control over her property.   In  April  2000

Trapp filed a civil complaint against OPA.  The complaint alleged

that  OPA  intentionally  withheld funds  from  her,  told  other

agencies not to provide her with help, verbally abused Trapp, and

failed  to  act on its knowledge of the severity of her illnesses

and  homelessness.   The superior court granted  OPAs  motion  to

dismiss  Trapps  suit based on absolute quasi-judicial  immunity,

but we reversed this on Trapps appeal.3

          On  remand Trapp filed an amended complaint, this  time

with  the  assistance  of counsel.  The  thrust  of  the  amended

complaint  was  that  OPA  should have assumed  more  (not  less)

control  over Trapps life.  The amended complaint alleged,  among

other claims, that OPA breached its fiduciary duty to [Trapp]  by

failing  to  take  formal action to address [Trapps]  psychiatric

disorders,  severe  drug  and alcohol  addictions,  and  gambling

addiction.  OPA  moved for partial summary judgment.  OPA  argued

that it had no duty to seek to upgrade Trapps conservatorship  to

a  guardianship and to take more power over her life and affairs.

Trapp  opposed OPAs motion, and simultaneously moved for  partial

summary  judgment  in  her favor.  In the  papers  opposing  OPAs

motion and supporting her own, Trapp argued that OPA owed  her  a

duty  to petition for guardianship, and also referred vaguely  to

OPAs  duty  to  take other affirmative steps to care  for  Trapp.

Later, in her reply papers in support of her motion (i.e.,  after

OPAs  motion was fully briefed), Trapp made this latter  argument

more   specific,   by   claiming  that  OPA   had   breached   AS

47.24.010(a)(5).  This statutory provision requires  conservators

          and guardians to report to DHSS all cases in which it believes

vulnerable  adults  are  suffering  from  self-neglect  or  other

problems.4

          In  an  order dated September 11, 2003, Superior  Court

Judge  Peter A. Michalski granted OPAs motion for partial summary

judgment,  on  the  ground that there is no such  duty  [to  seek

guardianship] under these facts.  Trapp filed a motion  to  amend

this  order,  to  clarify that Trapps motion for partial  summary

judgment  had  been denied.  According to this motion  to  amend,

Trapps  partial  summary judgment motion had contended  that  OPA

owed  [Trapp]  an  affirmative duty  to  either  petition  for  a

guardianship or to take affirmative steps to protect  her  health

and  safety . . . .  On September 24 Judge Michalski duly amended

his  order to state that Trapps cross-motion for partial  summary

judgment is hereby denied.  Trapp then moved to have the  amended

order  entered  as a judgment, notwithstanding  the  pendency  of

other  claims in Trapps amended complaint that were not  included

in  either  partial  summary judgment  motion.   Judge  Michalski

agreed,  and  entered  the following judgment  under  Civil  Rule

54(b):   IT  IS  HEREBY ORDERED, ADJUDGED AND  DECREED  that  the

Office of Public Advocacy did not owe a duty to the plaintiff  to

upgrade  plaintiffs conservatorship to a guardianship or to  take

affirmative action to protect plaintiff when plaintiff was unable

to take care of herself.

          Trapp  appealed.   After  hearing  oral  argument,   we

dismissed  the   appeal  on the ground that  the  superior  court

should not have entered the judgment until it had adjudicated all

claims  in  the  amended complaint.  Our order  stated  that  the

dismissal of the appeal would be rescinded if the parties file  a

formal  stipulation within ten days from the date of  this  order

that provides that all claims not encompassed within the superior

courts  grant  of  OPAs Motion for Partial Summary  Judgment  are

dismissed   with  prejudice.   The  parties  timely  filed   this

stipulation, thereby authorizing us to hear the appeal.

III. DISCUSSION

          Trapp argues that OPA, as Trapps conservator, is liable

in  tort  because (1) OPA breached a common-law duty of  care  by

failing  to seek to become Trapps guardian, and (2) OPA  breached

its statutory duty to make a report of harm to DHSS.

     A.    OPAs  Purported  Duty  To Petition  To  Become  Trapps

Guardian

          Trapps main argument is that common-law principles give

her  a  tort remedy against OPA for failing to petition to become

her  guardian.   It is undisputed that as a guardian,  OPA  would

have exerted significantly more control over Trapps life than  it

did  as her conservator, a guardian having (for example) most  of

the  same  powers and responsibilities over a ward  that  parents

have  over their unemancipated child.5  The scope of a tort duty,

unless  it turns on disputed facts (and here it does not),  is  a

question of law that we review de novo.6

          The  general  rule is that a person is not required  to

act to protect another, but there are exceptions.7  Here the most

relevant  exception is in section 323 of the Restatement (Second)

of  Torts,  which makes actors liable for failing  to  perform  a

prior undertaking with reasonable care:

               One  who undertakes, gratuitously or for
          consideration, to render services to  another
          which  he  should recognize as necessary  for
          the  protection  of  the  others  person   or
          things, is subject to liability to the  other
          for  physical harm resulting from his failure
          to  exercise  reasonable care to perform  his
          undertaking, if (a) his failure  to  exercise
          such care increases the risk of such harm, or
          (b)  the  harm  is suffered  because  of  the
          others reliance upon the undertaking.
          
This principle underlies several of our decisions.8

          Trapp  argues  that the conservatorship plan,  the  OPA

statute, and the conservatorship statute amount to an undertaking

by  OPA to protect Trapp from herself, to the extent of requiring

OPA  to  petition to become Trapps guardian.  The plan  certainly

does   not  do  this;  it  merely  gives  OPA  routine  financial

          responsibilities.  Trapp relies on the plans use of the term

ward,   which   might  imply  a  guardianship   rather   than   a

conservatorship, but read in context we think this was at most  a

trivial solecism.

          Trapp also argues that the conservatorship statute  and

the statute regulating OPA amount to the requisite undertaking by

OPA.   Trapp  focuses on three statutory provisions.   Under  the

first, OPA is required to make quarterly visits to monitor  [the]

welfare  of  persons for whom it is a guardian  or  conservator.9

But  OPAs duty to visit or monitor a protected person is not  the

same  as  a  duty to take concrete steps to promote  the  persons

welfare.  And even promoting the protected persons welfare  might

mean only that the conservator should ensure that money spent  to

educate or support the protected person is spent wisely.

          Trapp  also cites a provision, applicable only  to  OPA

and  not  to  other conservators, requiring OPA to  intervene  in

conservatorship proceedings in cases where intervention is in the

best interests of the protected person.10  For this provision  to

constitute  an  undertaking in the sense described  above,  Trapp

would  have  to  read the provision to require  OPA  to  seek  to

convert  conservatorships  into guardianships,  or  at  least  to

require  OPA  to urge some kind of outcome in the course  of  its

intervention.   But  this reading is somewhat implausible.   What

OPA may choose to do once it has intervened is not specified, and

the   purpose   of   the  statute  seems  rather   to   authorize

interventions  by OPA to replace incompetent or  corrupt  private

conservators.11  In any event, the statute gives OPA authority to

intervene but does not require it; it is hard to see how such  an

authorization could amount to an undertaking to act.

          Trapps  third  statutory  argument  is  based   on   AS

47.24.010(a), which directs conservators to make a report of harm

to  DHSS  whenever  they  come across a  vulnerable  adult.   OPA

apparently  did  not make this report of harm, and  Trapp  argues

mainly  that  OPA should be civilly liable to her for  breach  of

          this statutory duty, irrespective of whether OPA had a duty to

seek to become her guardian.  This argument is considered in  the

next  section.  But we also think it is fair to consider  whether

the  duty  to  report could amount to an undertaking  by  OPA  to

petition to become Trapps guardian.

          We  conclude that the duty-to-report provision does not

amount  to  such an undertaking.  It says that where conservators

(and  others  in  a long list of social services providers)  have

reasonable cause to believe that a vulnerable adult suffers  from

abandonment,  exploitation, abuse, neglect, or self-neglect,  the

conservator  shall  . . . report the belief  to  [DHSSs]  central

information  and  referral service for  vulnerable  adults.12   A

report  triggers  an  investigation  by  DHSSs  Adult  Protective

Services  (APS) office.13  After investigating, APS may  petition

the  superior court for appointment of a guardian,  and  also  is

required,  if  the  vulnerable  adult  or  the  adults   guardian

consents,  to  ensure that any necessary protective services  are

provided  to  the vulnerable adult.14  These provisions  arguably

require OPA and other conservators to make a report of harm,  and

anticipate that APS may act on that report by seeking to  have  a

guardian  appointed.  But they do not require the conservator  to

make  the guardianship petition itself.  We therefore think  that

AS 47.24.010(a) does not amount to an undertaking by OPA or other

conservators to petition to become Trapps guardian.

          Moreover, other statutory provisions make it clear that

OPAs primary role in a conservatorship is to manage the protected

persons  property for the persons benefit, rather than to  assume

responsibility for the persons welfare.  This emphasis  on  money

does not preclude the possibility that other statutory provisions

impose  non-financial duties, but it does suggest another  reason

why  we should not read broadly worded provisions in the way that

Trapp  wants  us to.  For example, AS 13.26.280 and AS  13.26.285

enumerate the actions a conservator is authorized to take.  These

relate  exclusively  to  the protected persons  property.15   One

          exception is that AS 13.26.280(a) gives conservators the powers

of a guardian in cases where the protected person is a minor, but

the  specificity  of the exception suggests that conservators  do

not  have a general responsibility over protected adults such  as

Trapp.16  Subsection .280(a) also gives conservators, in addition

to  their  specifically  listed  powers,  any  additional  powers

conferred  by  law on trustees in this state.  But  trustees  are

traditionally responsible for property, not persons, and there is

no  authority  we  know  of that would make  a  trustee  directly

responsible for the personal welfare of a beneficiary.17  Another

section of the conservatorship statute makes conservators  liable

for  torts  committed  in  the administration  of  the  estate.18

Although we do not read this section as necessarily providing the

exclusive redress against any potentially tortious acts  by  OPA,

it again suggests that it would be surprising if the same statute

elsewhere  created  an undertaking by OPA to  look  after  Trapps

person.

          Trapp  also  cites  a number of cases  to  support  her

argument  that  OPA  has,  merely  by  virtue  of  becoming   her

conservator,  undertaken to petition to become her guardian,  but

we find these distinguishable.  In each case the defendant failed

in   tasks   at   the  heart  of  its  statutory  or  traditional

responsibilities:  police officers in their duty  to  respond  to

specific threats; jailers in their duty to look after the welfare

of  their  prisoners; fire inspectors in their  duty  to  act  on

knowledge  of  fire  hazards  in  a  building;  child  protection

agencies  in their duty to inspect and license daycare centers.19

These  cases  do not support what Trapp advocates,  which  is  to

expand  the  scope  of a conservators duties  beyond  the  duties

imposed by detailed statutes.

          Trapp also argues that, even if there is no undertaking

sufficient  to  impose a duty under the Restatement,  the  policy

factors  listed in D.S.W. v. Fairbanks North Star Borough  School

District  support  expanding the scope of OPAs duty  to  Trapp.20

          Even assuming that considering these factors is proper in a

situation  where Restatement principles suggest there should  not

be  a duty,21 the humanitarian merit of Trapps position would not

outweigh  the unfairness and surprise to OPA (and potentially  to

other  conservators)  that would result  from  imposing  a  vague

common-law responsibility beyond those listed in the statutes and

the  plan.   Put into D.S.W. terms, we believe there would  be  a

significant  burden  to  the defendant and  consequences  to  the

community if we imposed an extra-statutory duty of care.

          A final consideration is that we are reluctant to alter

policy  choices  embedded in the legislative  scheme.   As  Trapp

acknowledges, the conservatorship statute balances the  protected

persons independence against her need for supervision.22   If  we

read that statute or the OPA statute as broadly as Trapp asks  us

to,  it might induce OPA to petition for a guardianship in  cases

where  a guardianship is less obviously merited than it seems  to

have  been  in Trapps case.  This result would alter  the  policy

balance enacted by the statute.23

          At  bottom, Trapps arguments overestimate the  latitude

courts have to impose a common-law duty.  Trapps view seems to be

that  a  duty can be imposed whenever inaction harms someone  and

the  duty  is  otherwise  (in Trapps  words)  consistent  with  a

statutory scheme governing the relationship between the  parties.

But as the foregoing indicates, our willingness to impose such  a

duty  is limited by the general principle against imposing duties

to  act  for the benefit of another.  It is also limited  by  our

reluctance  to  surprise conservators with non-statutory  duties,

particularly  where  such  duties  would  cause  conservators  to

interfere more in the lives of protected persons, a policy choice

potentially  in  conflict with the conservatorship  statute.   We

therefore  reject Trapps argument that OPA should be  liable  for

failing to seek to become her guardian.

     B.    OPAs  Purported Duty To Report Trapp as  a  Vulnerable

Adult

          Trapps  other argument is that OPA should be liable  to

her  in tort because it failed to make a report of harm under  AS

47.24.010(a).   As we have noted, this statute  says  that  where

conservators  (and  others  in a long  list  of  social  services

professionals) have reasonable cause to believe that a vulnerable

adult suffers from abandonment, exploitation, abuse, neglect,  or

self-neglect,  the conservator shall . . . report the  belief  to

[DHSSs]  central information and referral service for  vulnerable

adults.24  This report leads to an investigation by APS, which may

petition for appointment of a guardian, and is required to ensure

that  (where  the  vulnerable adult or guardian  consents)  other

protective services are provided.25

          There  are serious questions about whether Trapps duty-

to-report claim was preserved in the superior court, and  whether

Trapp  could  ever prove that this failure to report  proximately

caused  her injuries.  But we do not reach these issues,  because

we believe the duty-to-report claim is subject to the stipulation

of dismissal previously entered in this court.

          As  entered  by the parties, the stipulation  dismisses

all  claims not encompassed within the superior courts  grant  of

OPAs  Motion  for  Partial Summary Judgment dated  September  11,

2003.   In  this  September 11 order granting  OPAs  motion,  the

superior court grant[ed] summary judgment to the defendant on the

issue of duty to seek guardianship.  There was no mention of  the

duty-to-report  issue.  Nor should there have  been,  since  this

issue  was  not raised by OPA in its motion, or by Trapp  in  her

opposition.   Instead, the first time anyone raised the  duty-to-

report  issue was in Trapps reply brief in support of her  motion

for  summary judgment, which described the duty to report as  one

affirmative  action OPA should have taken as  an  alternative  to

seeking to become Trapps guardian.  And Trapps motion was  denied

in  another, amended order dated September 24, 2003.  These facts

persuade  us that the duty-to-report issue was not, in the  words

of  the stipulation, encompassed within the superior courts grant

          of OPAs Motion for Partial Summary Judgment dated September 11,

2003.

          For  these  reasons,  we find that  the  duty-to-report

claim was dismissed by stipulation, and that appellate review  of

this issue is not available.

IV.  CONCLUSION

          The  order  of  the  superior  court  granting  partial

summary  judgment to OPA on Trapps claim that OPA had a  duty  to

seek  a guardianship for her is AFFIRMED.  All other claims  have

been  previously dismissed by stipulation.  It is unnecessary  to

consider  OPAs  argument  that it is  entitled  to  discretionary

function immunity.

_______________________________
     1     State, Dept of Health & Soc. Servs., Div. of Family  &
Youth Servs. v. Sandsness, 72 P.3d 299, 301 (Alaska 2003).

     2    The conservatorship plan stated:

               1.    The  conservator  [OPA]  has  full
          authority to pay for the wards medical  care,
          mental  health  treatment, and any  necessary
          physical and mental examinations.
               2.   The  conservator has full authority
          to  pay  for the wards housing in  the  least
          restrictive setting feasible.
               3.   The  conservator has full authority
          to  pay for the wards personal care, comfort,
          maintenance,    education   and    vocational
          services  necessary  for  the  physical   and
          mental welfare of the ward.
               4.   The  conservator has full authority
          to  obtain health and accident insurance  and
          to apply for and collect any other private or
          governmental benefits to which the  ward  may
          be entitled, to meet any part of the costs of
          medical,  mental  health or related  services
          provided to the ward.
               5. The conservator has full authority to
          handle  financial affairs and  receive  money
          and   property  deliverable  to   the   ward,
          including full control of the estate and  the
          income  of  the ward to pay for the  cost  of
          services.
          
     3     We held that OPA was not entitled to absolute immunity
but  expressed  no opinion on whether OPA might  be  entitled  to
qualified  public official immunity.  Trapp v. State,  Office  of
Pub. Advocacy, 53 P.3d 1128, 1130 n.4 (Alaska 2002).

     4      [T]he  following  persons  [including  guardians  and
conservators] who . . . have reasonable cause to believe  that  a
vulnerable  adult suffers from abandonment, exploitation,  abuse,
neglect,  or  self-neglect shall . . . report the belief  to  the
departments   central  information  and  referral   service   for
vulnerable  adults.   AS 47.24.010(a).  After  receiving  such  a
report, DHSS may petition the superior court for appointment of a
guardian,  and also is required  if the vulnerable adult  or  the
adults guardian consents  to ensure that any necessary protective
services  are provided to the vulnerable adult.  See AS 47.24.017
(requiring  department  to  ensure provision  of  any  protective
services it determines to be necessary, provided vulnerable adult
consents to receipt of services); AS 47.24.019(a) (department may
petition for appointment of guardian).

     5      See   AS   13.26.150(c)  (duties  of  guardian   over
incapacitated adult).

     6     See,  e.g., Henricksen v. State, 84 P.3d 38, 45 (Mont.
2004); Sanchez v. State, 784 N.E.2d 675, 678 (N.Y. 2002).

     7    Joseph v. State, 26 P.3d 459, 473 (Alaska 2001).

     8     See, e.g., R.E. v. State, 878 P.2d 1341 (Alaska 1994);
Adams v. State, 555 P.2d 235 (Alaska 1976).

     9    AS 13.26.380(c)(2).

     10    AS 13.26.390(4).

     11    AS 13.26.390 provides:

               The  public guardian may, on the  public
          guardians own motion or at the request of the
          court,   intervene  in  a   guardianship   or
          conservatorship  proceeding  if  the   public
          guardian   or   the   court   considers   the
          intervention to be justified because
               (1) an appointed guardian or conservator
          is not fulfilling duties;
               (2) the estate is subject to waste as  a
          result  of  the costs of the guardianship  or
          conservatorship;
               (3) a willing and qualified guardian  or
          conservator is not available;  or
               (4)  the  best  interests of  the  ward,
          respondent, protected person, or  person  who
          is   the   subject   of   a   conservatorship
          proceeding require the intervention.
          
     12    AS 47.24.010(a) & (a)(5).

     13    AS 47.24.015(a).

     14     See  AS  47.24.017  (requiring department  to  ensure
provision  of  any  protective  services  it  determines  to   be
necessary,  provided  vulnerable adult  consents  to  receipt  of
services);   AS   47.24.019(a)  (department  may   petition   for
appointment of guardian).

     15    AS 13.26.280 provides:

               (a)  A conservator has all of the powers
          conferred  herein  and any additional  powers
          conferred  by law on trustees in this  state.
          In  addition, a conservator of the estate  of
          an  unmarried minor, as to whom  no  one  has
          parental rights, has the duties and powers of
          a   guardian  of  a  minor  described  in  AS
          13.26.070 until the minor attains the age  of
          18  or  marries, but the parental  rights  so
          conferred  on  a conservator do not  preclude
          appointment of a guardian as provided  by  AS
          13.26.030  13.26.085.
               (b)  A  conservator  has  power  without
          court   authorization  or  confirmation,   to
          invest  and reinvest funds of the  estate  as
          would a trustee.
               (c)  A conservator, acting reasonably in
          efforts  to accomplish the purpose for  which
          the   conservator  was  appointed,  may  act,
          without  court authorization or confirmation,
          to
               (1)  collect, hold and retain assets  of
          the  estate including land in another  state,
          until,    in   the   conservators   judgment,
          disposition of the assets should be made, and
          the  assets may be retained even though  they
          include an asset in which the conservator  is
          personally interested[.]
          
The  statute goes on to list twenty-four other powers  to  manage
the  protected  persons property.  See also First  Natl  Bank  of
Anchorage  v. State, Office of Pub. Advocacy, 902 P.2d  330,  331
n.1  (Alaska  1995)  (The conservatorship  statute  authorizes  a
conservator to handle a wards financial affairs.).

     16    One useful and logical maxim of statutory construction,
though  it should not be blindly followed, is expressio unis  est
exclusio  alterius, which means that to express one thing  is  to
imply the exclusion of others.  See Ellingstad v. State, Dept  of
Natural Res., 979 P.2d 1000, 1006 (Alaska 1999).

     17     See,  e.g., AS 13.36.109 (a trustee may  perform  all
actions   necessary   to   accomplish  the   proper   management,
investment,  and distribution of the trust property,  enumerating
specific   property-management  duties   that   trustees   have);
Restatement (Second) of Trusts  164-196 (1959) (similar).

     18    AS 13.26.305(b).

     19     City  of  Kotzebue v. McLean, 702 P.2d 1309,  1312-13
(Alaska  1985)  (police);  Joseph, 26 P.3d  at  473-74  (jailer);
Adams, 555 P.2d at 240 (fire inspector); R.E., 878 P.2d at  1346-
48 (child protection agency).

     20    The D.S.W. factors are:

          The  foreseeability of harm to the plaintiff,
          the  degree  of certainty that the  plaintiff
          suffered   injury,  the  closeness   of   the
          connection between the defendants conduct and
          the injury suffered, the moral blame attached
          to  the  defendants conduct,  the  policy  of
          preventing  future harm, the  extent  of  the
          burden  to the defendant and consequences  to
          the  community of imposing a duty to exercise
          care with resulting liability for breach, and
          the  availability,  cost  and  prevalence  of
          insurance for the risk involved.
          
D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554, 555
(Alaska 1981).

     21     Cf.  Wongittilin v. State, 36 P.3d 678,  685  (Alaska
2001)  (Because  we hold that the police had no  duty  to  arrest
Jackson  based  on our existing case law, we need not  perform  a
D.S.W. factor analysis . . . .).  See also Joseph, 26 P.3d at 473
(Absent  [a  relationship giving rise to  a  recognized  duty  of
care], we typically apply the D.S.W. factors to decide whether  a
duty  of  care  exists.   But  if  the  parties  already  have  a
relationship  that gives rise to a recognized duty of  care,  the
focus  is  instead  on what conduct is needed to  discharge  that
duty.) (footnotes and citations omitted).

     22     See,  e.g.,  AS  13.26.195(d) (A conservator  may  be
appointed  only  if a less restrictive protective  order  or  the
services  of a special conservator are not adequate to  protected
the  estate  of  the  protected person.); AS  13.26.285(d)  (When
protected persons disability ends, conservator must pay over  all
estate funds to former protected person as soon as possible.).

     23    See State, Dept of Health & Soc. Servs., Div. of Family
&  Youth  Servs. v. Sandsness, 72 P.3d 299, 303-04 (Alaska  2003)
(rejecting  claim that state had tort duty to  use  due  care  in
deciding  whether to release juvenile offender; imposing  such  a
duty  would  make  the state reluctant to release  juveniles  and
override   statutory  compromise  between  offenders  needs   and
societys needs).

     24    AS 47.24.010(a) & (a)(5).

     25     See  AS  47.24.017  (requiring department  to  ensure
provision  of  any  protective  services  it  determines  to   be
necessary,  provided  vulnerable adult  consents  to  receipt  of
services);   AS   47.24.019(a)  (department  may   petition   for
appointment of guardian).