[WSBAPT] Qualification of PR /Trustee

[Eric Nelsen]

Interesting thought, but I am in the midst of a case right now where an heir with a felony record (forgery) is PR of an ancillary probate in another state that doesn't bar felons from serving as PR; and that heir is causing serious problems for the probate in this state, from behavior that I think is related to or similar to--or at least consistent with--the past criminal behavior.



I think the statutory bar is a good thing in general, as a default rule. Perhaps I am biased by my particular experience. I might support legislative action making the disqualification presumptive but discretionary with the court, though, on some heightened standard or with additional bond requirements or other security.



Re the Fields case, I think its facts are different in ways that make it harder to analogize to the statutory bar to felons serving as PR. The ruling there hinges on (A) the rule disqualifying a convicted felon from running a child care was in a WAC rather than a statute and so it was not a policy statement by the legislature; and (B) the appellant had a constitutionally protected right to pursue a chosen profession that must be weighed against the purpose of the regulation, whereas no one has a right to be a court-appointed fiduciary such as a PR.



It's also a closely fought opinion - lead opinion has 4 justices, who got a 1-justice concurrence--in the result only, different grounds--that tipped them into majority; and a strong 4-justice dissent. After an admittedly quick reading of the whole thing, I have my doubts about the opinion, mainly because it does appear to make a "substantive due process" ruling that I instinctively dislike. There is real difficulty in clearly differentiating between what is "substantive due process" versus what is more like legislating from the bench.



Sincerely,



Eric



Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1417 31st Ave South

Seattle WA  98144-3909

phone 206-625-0092

fax 206-625-9040



-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Doug Schafer
Sent: Thursday, February 21, 2019 10:37 AM
To: WSBA RPPT Probate & Trust Discussion Forum
Subject: [WSBAPT] Qualification of PR /Trustee



Consider whether today's WA Supreme Court opinion--that a 30-year-old robbery conviction is not an absolute bar to a childcare license--might apply to invalidate the statutory absolute bar to convicted individuals serving as a trustee or PR (particularly if a family member wishes to appoint the individual). RCW 11.36.010, --.021.  Should those statutes be reconsidered?





New Supreme Court Opinions as of Thursday, February 21



Feb. 21, 2019 - 95024-5 - Fields v. Dep't of Early Learning http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=950245MAJ

Doug Schafer, in Tacoma.









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