Willner WP13-04130

STATE OF RHODE ISLAND SUPERIOR COURT WASHINGTON COUNTY

THE ESTATE OF JOYCE C. WILLNER C.A. NO.: WP13-0400

CLOSING ARGUMENT

OF APPELLEES, KURT WILLNER & YAFFA WILLNER

This appeal presents the following issues:

I. Should the court strike the pleadings filed by Michael Wainer, pro se?

2. Should Attorney H. Jefferson Melish be allowed to represent the Estate of Joyce Willner?

3. Should the Court approve the home health care plan presented by Michael Willner?

4. Does Michael-Willner need a court order to access Joyce Willner's assets?

5. What are the notice requirements for a pending matter (removal or miscellaneous

petition), that has led to exigent action being required due to the actions of the party

claiming lack of proper notice?

6. Did the South Kingston Probate Court retain jurisdiction over a portion of the

Guardianship while an appeal is pending?

7. Should Michael Willner be removed as the Guardian of Joyce Willner?

In 2012, Michael A. Willner began to wreak havoc and a campaign of terror, harassment,

and abuse against this loving couple by his bullying, manipulation of family members,

neighbors, and healthcare professionals. These battles were waged with the medical providers,

in the Probate Court and have now escalated to the Superior Court level.

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Kurt Winner's attempt to care for his wife with the assistance of Michael Winner, Yaffa

Willner and other health care professionals to meet the level of care necessary for Joyce Wainer.

nearly killed Joyce and Kurt. Joyce Willner was removed from the marital home nearly dead.

Joyce Winner was placed at South Kingstown Hospital where she received hospice services and

was then transferred to Roberts Health Center in North Kingstown, RI. She remains a resident of

Roberts Health Care Center. The medical professionals including her primary care physician Dr.

Khurshid, the staff of the Roberts Health Center (Joint exhibit 38), the Office of the State of

Rhode Island Ombudsman, and the State of Rhode Island Transition Team (Appellee exhibit D)

are all in agreement that this is the most appropriate residential setting for her.

1. Michael Willner's request to practice law in the state of Rhode Island must be

denied. Although Michael Willner has entitled his request as a pro se litigant, he is the guardian

and also the petitioning attorney on behalf of the guardian and ward. Since Michael Willner has

taken the position that he should also be the guardian, he would have a clear conflict of interest if

he were to advance his own agenda and at the same time represent the ward and the guardian.

Representing himself individually and the court appointed Guardian, as well as the ward is by

implication, the practice of law. Since he is not a member of the Rhode Island bar, he should be

precluded from filing any motions relating to the ward or the guardian. He is a licensed attorney

in the District of Columbia and if he wants to practice law in this state, he needs to follow the

rules set out for doing so. Michael Willner testified that he was going to look into receiving

permission in order to practice law in this state but that he never followed up on this. If he

would like to enter his appearance as an attorney, his proper course of action would be a petition

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to the Supreme Court for Pro Hoc Vice admission for a special or infrequent matter, not a request

through the Probate or Superior Courts.

Michael Winner has demonstrated his inability to appear before a court of law and

conduct himself professionally. Pursuant to the rules of professional practice, he knows, as a

licensed attorney in the District of Columbia as well as a former member of the Rhode Island

Bar, that he cannot have ex parte communication with a Judge presiding over a case where

Michael Willner is a party. Michael Willner testified that he followed the judge into the parking

lot to speak with him and called the judge at his office to speak with him regarding a procedural

issue. This is another example of his unprofessional conduct and his inability to follow the

conduct expected of him as an attorney and as a guardian.

2. Attorney Melish stated during the trial that he represents Joyce Willner, the Estate

of Joyce Willner, and Michael Willner individually, and as the Guardian of Joyce Willner all at

the same time. On July 19, 2013, Attorney Melish was allowed to enter his appearance in the

South Kingstown Probate Court on behalf of Michael A. Willner only. Mr. Melish was

specifically ordered and was prohibited from representing either, the Ward, Joyce Willner, or the

Estate of Joyce C. Willner. (Joint exhibit 21)

In order to represent a client, an attorney needs to be able to enter into a professional

contract with the client. Attorney Melish was hired by Michael Willner in order to address the

claim that he (Michael Willner) should be entitled to enter his appearance pro se and for the

purpose of this appeal. If this court determines that the Estate of Joyce Wainer is in fact entitled

to representation, Attorney Melish is clearly not capable of fulfilling this duty. As the attorney

for Michael Willner, Attorney Melish has placed himself in a position of having a conflict. The 3

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estate of Joyce Winner, Michael Winner, the guardian; and Joyce Wiliner all have differing interests and therefore cannot be represented by the same attorney. Michael Willner has demonstrated that he is interested in separating his parents and removing his mother from the nursing home at all costs. Michael Wiliner testified that he would like access to his mother's assets in order to pay attorney fees. When questioned on cross examination, he stated that he would need perhaps twenty five thousand to fifty thousand dollars in order to pay these fees. Joyce Willner is interested in having her dignity protected and health concerns addressed. The actions of Michael Willner filing a complaint for divorce, requesting up to fifty thousand dollars to pay his attorney, posting compromising videos and confidential health care records on the Internet are contrary to her best interest.

Attorney Melish has taken actions that are detrimental to Joyce Willner, while attempting to advance the plans of Michael Willner. The evidence is that Attorney Melish assisted Michael Willner in requesting access to the assets of Joyce and Kurt Winner in order to pay attorney fees to himself and by filing a frivolous divorce complaint. Attorney Melish would directly benefit financially if the court were to grant Michael Willner's request to access the assets of Joyce Willner in order to pay up to fifty thousand dollars in attorney fees. The proper procedure for requesting attorney fees relating to a guardianship is to file a request for the approval of attorney fees with the Probate court, and only then can a guardian make a payment from the assets of the ward. Attorney Melish has attempted to circumvent the rules of procedure-of the Probate court by being paid without submitting a fee request to the court. This would allow him to be paid without the Court reviewing his bill to determine if it is reasonable and necessary. This would

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not be in the best interest of Joyce Willner and would be a violation of her rights as set forth in

the rules of Probate procedure.

On July 31, 2013, Attorney Melish filed an action for divorce on behalf of Joyce Winner

in the Washington County Family Court. In filing the complaint for divorce, it is alleged that the

grounds for divorce are that irreconcilable differences have led to the breakdown of the

marriage. (Joint exhibit 29) This representation to the Court is false. The evidence presented

indicates the opposite. The records from Roberts Health Centre indicate that Kurt Winner

spends quality time with his wife Joyce Willner. The record also indicates that Kurt Willner

remains attentive to his wife (Joint exhibit 38 at page 1 of 72, 2 of 72, and 10 of 72). In the

Motion for Temporary Orders, it is alleged that the parties have lived separate and apart since

April of 2012. This assertion is blatantly false and is a material misrepresentation to the Court.

Joyce Willner is in a nursing facility and is receiving medical care, not living separate and apart

from her husband. There was no testimony presented that would lead to the conclusion that they

are living separate and apart.

The medical records, testimony of the State ombudsman, as well as the testimony of

Michael Winner all confirm that Joyce Willner is incapable of making her own decisions and

requires a substitute decision maker. The evidence has shown that even prior to the appointment

of a guardian; Joyce Willner lacked the capacity to make her own decisions. Evidence of this is

that Kurt Willner was making her health care decisions pursuant to a durable power of attorney

for health care. Michael Winner testified that Joyce Willner required twenty four hour

supervision and medical care at home prior to her hospitalization in 2012.

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A person under a guardianship, without limitation does not have the legal capacity to

make her own decisions and therefore cannot execute a legal document. Joyce Willner was

placed under a guardianship on December 14, 2012. Notwithstanding this, Attorney Melish had

Joyce Willner sign a court document and notarized her signature. Pursuant to the Family Court

rules, a form DR6 must also filed with the divorce petition. The DR6 must be signed and

notarized. The signature page on the DR6 has the signature of Joyce Winner. (Joint exhibit 29)

Attorney Melish certified, as a notary public, on July 30, 2013, that she (Joyce Willner) executed

and acknowledged said instrument to be her free act and deed. No evidence was presented that

Joyce Willner had executed the document as her free act and deed. To the contrary, the evidence

presented confirms that Joyce Willner cannot make her own decisions and has not been legally

able to since the appointment of her guardian on December 14, 2012.

Attorney Melish was informed by the Probate Judge on August 15, 2013 that no further

action could be taken by Michael Willner and had been previously informed that he could only

represent Michael Willner, (Joint exhibit 23) notwithstanding this prohibition he continued to

assist Michael Willner pursuing the divorce filing in the Family Court.

On September 12, 2013, Attorney Melish appeared in the Family Court and argued

against the request of the successor guardian, Yaffa Winner to dismiss the Divorce Complaint.

Attorney Melish had no authority from the successor guardian, Yaffa Willner to appear in the

Family Court. Notwithstanding the dismissal of the Divorce action and the directive of the South

Kingston Probate Court, Attorney Melish filed a Motion in the Family Court on September 12,

2013, in order to appoint a guardian ad !item for Joyce Wainer. (Joint exhibit 31) The motion

was signed by attorney Melish as "Plaintiff, by her attorney". If Michael Willner and Attorney

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Melish wanted to continue with the divorce action, the proper procedure would have been to request a stay of the order of the Probate Court or the permission of the Superior Court. Instead, they took it upon themselves to act outside of the court order and without the consent of the Successor Guardian. Their action should not be rewarded by this court; it should be met with contempt. The Divorce action was dismissed by the successor guardian. (Joint exhibit 32) The actions of Attorney Melish are unethical and a violation of the Rules of Professional Conduct.

The actions of Attorney Melish in representing the Estate, Michael Willner, the Guardian and the ward, Joyce Willner create a conflict in the litigation. It is alleged in the removal petition that Michael Winner in his capacity as guardian has taken action adverse to Joyce Winner. (Joint exhibit 14) These allegations place Michael Winner's actions at odds with the best interest of Joyce Winner and creates a clear conflict as it relates to the litigation. The Rules of Professional Conduct prohibits representation of opposing parties in the same litigation, regardless of the clients' consent. Based upon this rule, Attorney Melish had a duty to withdraw as the attorney for one of these parties. It would have been prudent to withdraw from representing either party.

3. Dr. Khurshid testified that Joyce Winner suffers from alzheimer's disease, dementia, is blood transfusion dependent, at risk for falls, is on a restricted diet, suffers from chronic urinary tract infections, and has almost daily lab testing. Joyce Winner's medical condition(s) are being monitored and treated daily at Roberts Health Centre. (Joint exhibit 38) Dr. Khurshid testified that Joyce Willner's medical condition and health concerns are being monitored twenty four hours a day by trained and licensed medical staff. The medication that she is receiving can cause side effects that require daily monitoring, she receives blood transfusions that require monitoring, and she has chronic urinary tract infections that require

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monitoring as well as other health conditions that need daily monitoring. Dr. Khurshid testified

that this level of care could only be provided by registered nurses or licensed practical nurses.

The evidence demonstrates that it is the incompetence of Michael Winner in not

preparing a home health care plan, to be approved by the Court, in order to have Joyce Winner

return home. Although Michael Willner testified that he always wants his mother to have all of

the information necessary in order to make a decision, it was never brought to the attention of

Joyce Whiner that it was Michael's incompetence that was preventing her from going home.

Approximately fourteen months ago Michael Willner took it upon himself to begin the

preparation of a home health care plan. This was completed without consulting with the treating

physician, Dr. Khurshid or determining the assets of Joyce Whiner. The Home Health Care plan

filed (Joint exhibit 17) is incomplete and fails to address the health care needs, as testified to by

Dr. Khurshid.

The plan indicates that the residential evaluation was of the neighbor's home. There was

no evaluation of the marital home, or testimony that such an evaluation of the marital home was

requested. The plan proposes that Joyce Willner be returned home and that Michael Winner act

as a caregiver in the marital domicile. Evidently, this was one of the reasons that he requested

that the Family Court remove his father, Kurt Willner from the home. In the alternative, Michael

Whiner proposed that Joyce Wiliner move in with her neighbors. There was no evidence

presented indicating that the neighbors have any health care training or the ability to meet the

unique needs of Joyce Whiner. Clearly Kurt Winner would not be able to spend quality time

with his wife is she were living in a neighbor's home. This placement would further the agenda

of Michael Wiliner by separating his parents in order to punish his father. There was no

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testimony that any of the neighbors would take Joyce into their home or that any modifications

have been completed in order to meet the medical needs of Joyce Willner. The plan fails to

address the documented medical requirement of twenty four hour supervision and daily medical

monitoring by a registered nurse or licensed practical nurse. The plan only calls for care being

provided by certified nursing assistants six hours per week. This is contrary to the testimony of

Michael Willner that Joyce Willner requires twenty four hour supervision, as well as Dr.

Khurshid testimony that she needs medical monitoring several times per day by a registered or

licensed nurse as well as twenty four hour supervision. The plan incorrectly indicates medicine

allergies to morphine. Michael Winner testified that Joyce Willner was receiving morphine

while in the hospital. The records from Roberts Health Center do not indicate an allergy to

morphine. There was. no evidence presented that she has such an allergy. If the proposed plan

has these types of errors, the remaining items in the plan should be met with skepticism.

Due to the progress of her dementia, the medical condition of Joyce Winner has declined

over the past nineteen months. This decline has been documented in the evidence presented to

this court. On September 21, 2012, Dr. Rosenzweig prepared a decision making assessment tool

(DMAT) (Appellant exhibit 1). The assessment indicates that Joyce Willner requires a substitute

decision maker relating to financial decisions, while only requiring limited assistance in the areas

of health care decisions and residential decisions and no assistance in decisions relating to

relationships. A second decision making assessment tool was prepared on October 29, 2012 by

Dr. Rosenzweig. (Appellant exhibit 2) The second assessment indicates that Joyce Willner

requires a substitute decision maker relating to finances, health care and residential decisions,

while only requiring limited assistance in the area of relationships. Clearly, this was a significant

change over a one month period of time. We are now almost seventeen months past the last

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assessment by Dr. Rosenzweig. Dr. Khurshid and Michael Willner both testified that the

cognitive ability of Joyce Willner has declined since the appointment of a guardian in 2012. The

proposed home care plan presented is stale and outdated and fails to meet the current needs of

Joyce Willner.

4, On December 14, 2012, Michael Winner was provided with a court order,

pursuant to his appointment as the guardian, to make a determination of the assets of Joyce

Willner. (Joint exhibit 8) Michael Willner testified that he held a financial power of attorney

since 2004. He testified that he never inquired as to the assets of Joyce Winner. He failed to

carry out his fiduciary duties in making this inquiry and filing an inventory, as required by law,

within thirty days of his appointment as the Guardian. Michael Willner testified that he failed to

determine the assets of Joyce Willner and failed to file an inventory from the time of his

appointment on December 14, 2012 until his removal on August 15, 2013. Clearly, this was

sufficient time to make such an inquiry and the failure to do so is contrary to the best interests of

his ward and a violation of the Rhode Island General Laws.

5. The appellants have challenged the notice requirements relating to the

miscellaneous petition to accelerate the hearing date on the pending petition to remove Michael

Willner as the guardian. Since this is a trial De Novo, I believe that this issue is moot. However

in order to address a potential argument from the appellants, I will briefly address this issue. The

evidence is clear that in September 2012, Michael Willner, through his Attorney David Reilly

filed a motion to waive the statutory notice requirement for the appointment of Michael WilIner

as the Temporary Guardian. (Appellees exhibit I) Michael Winner's testified that the reason for

waiving the statutory notice requirement in appointing a temporary Guardian was because it was

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an emergency. Clearly, Michael Winner has set the precedent in this case, that statutory notice

can be waived in an emergency situation. If the Probate Court has the authority to shorten the

notice requirement for the appointment of a temporary guardian, an action that deprives an

individual of certain inalienable rights, it has the authority to shorten the notice requirement of

the removal of a guardian in extreme and emergency situations. Since the hearing date on the

removal petition had been changed several times without an appeal or objection to notice, the

parties assented to all changes in the scheduling of the hearing for the removal of the Guardian.

A miscellaneous petition was filed on August 14, 2013 requesting that the hearing date for the

pending removal petition be accelerated to August 22, 2013. Upon review of the allegations

contained in the miscellaneous petition, including a copy of the divorce complaint requesting the

removal of Kurt Willner from the marital home, the Court convened an emergency hearing for

August 15, 2013. It is undisputed by the evidence presented that the South Kingston Probate

Court provided notice to all Attorneys of record. Such short notice is appropriate in an

emergency.

6. Notwithstanding an appeal of an order of the Probate Court, the Probate Court

retains jurisdiction over a portion of the Probate matter. Appealing an order from the Probate

Court does not nullify all of the orders of the Probate Court. This Court has clear guidance from

the statutory provisions relating to the powers retained by the Probate Court when an appeal has

been filed. The successor guardian remains under the supervision of the Probate Court. The

Probate Court had a duty to insure the continued protection of the ward. This cannot be clearer

in light of the fact that Michael Willner and Attorney Melish filed a Divorce Complaint

requesting that Joyce Willner be divorced from her loving husband. Had the Probate Court not

retained jurisdiction, the Willner's would now be divorced.

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The South Kingston Probate Court issued an order on August 19, 2013 granting the

successor guardian, Yaffe Willner the authority to dismiss the Family Court Divorce action.

(Joint exhibit 30) The order of August 19, 2013 was a result of the hearing on August 15, 2013

and addressed the main issue that led to the removal of Michael Willner as the guardian, the

filing of a divorce action. The August l 9th order was not appealed to the Superior Court. Since

the Appellants did not appeal the order granting certain powers to the successor guardian, the

August 19, 2013 order is the law of the Probate Court. Appellants have failed to challenge the

actions of the Successor Guardian in carrying out her fiduciary responsibilities, as well as the

Probate Courts continued jurisdiction to act and therefore have waived any right to address the

circumstances relating to the continued jurisdiction of the Probate Court. If the Appellants

disagreed with the Probate Courts ability to grant powers to the successor guardian, they would

have included it in the amended reasons for appeal that were filed in this Court on August 20,

2013, just as they did with the August 15, 2013 order.

7, Upon his appointment as the permanent guardian on December 14, 2012, Michael

A. Winner immediately began to make inappropriate decisions. He changed the long standing

advance directives of his mother from do not resuscitate, to a full code that would require heroic

life saving measures in the event of a serious medical event. (Appellee exhibit Q) He was

abusive to medical professionals, social services, state agency representatives, and family

members and falsely promised his mother she would return home.

The truth of Michael Willner's testimony as to his motivation to only act in the best

interest of his mother is questionable. Michael Willner was evasive in his testimony regarding

his following the Probate Judge into the parking lot, as well as his reason for calling the Judge at

his office. Michael Willner specifically denied that he shouted out or stated in the Probate Court,

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while court was in session, "my father is stealing my mother's money". His testimony is

untruthful as these facts are contained in the Probate Court transcript. (Joint exhibit 23) He

posted compromising videos of Joyce Willner on YouTube as well as on the savejoyce.com

webpage. (Appellee exhibit K) At first, he testified that the videos were not available for the

public to view. After viewing the appellees video exhibits, he changed his testimony that these

videos are available for the public to view. The medical record from Roberts Health Centre

indicate that Michael Winner has removed his mother from the facility against medical advice.

(Joint exhibit 38 at page 32 of 72) Michael Willner testified that he was never informed that he

could not take his mother out of Roberts due to her being sick. He stated that she might have had

the sniffles on one occasion. Michael Winner posted confidential health care records from South

County Hospital on the savejoyce.com webpage. Michael Winner denied that the records from

South County Hospital were confidential health care records.

Prior to the beginning of this trial, Michael Winner's attorney had the records of Roberts

Health Centre placed under seal to protect the privacy of Joyce Willner. (Joint exhibit 38 and

appellee exhibit A) Apparently, it was a second thought that the general public should not see

the confidential health care records of Joyce Winner or perhaps it is an attempt to shield Michael

Willner's inappropriate actions that are documented in the records.

Michael Willner's involvement in this matter is self-serving and an attempt to alienate his

mother from Kurt and Yaffa Winner. Evidence of this motivation was demonstrated by his filing

a divorce complaint on behalf of Joyce Willner requesting that Kurt Willner be removed from

the marital home, as well as a video whereby Michael Willner is berating Joyce Willner that she

should be reminded that she should be upset with her husband and daughter for keeping her in

the nursing home against her will. (Appellee exhibit P-2) Michael Willner testified that it is the

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actions of Kurt and Yaffa Willner that are preventing Joyce Willner from returning home. A

video prepared on June 6, 2012 shows Michael Willner telling his mother "dad doesn't want you

home" and "dad and Yaffa are fighting to keep you here" (Appellant exhibit A 10 C) The video

of June 30, 2013 shows Michael Willner stating to his mother that he would like her to hire

Attorney Melish because her attorney, Laura Krohn believes that the nursing home is the best

place for you and that Attorney Melish will get you out of the nursing home. (Appellant exhibit

A 10 D) Another video has Michael Willner informing his mother, while a patient at South

County Hospital, that if she remains in the hospital and if she continues to take prescribed

medication that she will die in about two weeks. (Appellee exhibit P-1)

Michael Willner testified that his mother, Joyce Willner has expressed a desire to return

home. The evidence Iiresented in the form testimony from Michael Willner and the records from

Roberts Health Center confirm that this is a result of coercion by Michael Winner. Michael

Winner testified that he must remind her what to say because she has a poor memory. On

October 1, 2013, Michael Willner was visiting with Joyce Winner at the Roberts Health Centre.

During this visit, Michael Willner was observed videotaping his mother, prompting her to say the

words I want to go home. This was witnessed by Karen Golish, a registered nurse at Roberts

Health Centre. This was documented in Joyce Willner's chart. (Joint exhibit 38 at page 15 of

72) The medical records from Roberts Health Centre also indicate that Joyce Willner becomes

agitated after her son visits, but calms when her husband or daughter is present. (Joint exhibit 38

at page 19 of 72) Michael Willner has developed a pattern of agitating his mother and not acting

appropriately. One of the most inappropriate videos has Michael Winner videoing his mother in

the bathroom at Roberts Health Center. Michael Milner testified that he was in the bathroom

while his mother was relieving herself and only began videoing her when she was finished

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relieving herself. The video appears to start in mid-sentence; however, Michael Winner denied

that he edited the video.

The medical records from Roberts Health Center indicate that on May 12, 2013 staff

noticed son was lying next to his mother in a twin bed. He was directed to leave the facility.

The medical record from Roberts Health Centre indicates that on June 1, 2013, son has also been

noted to be lying with his mother in bed, and has been asked to leave, when there late during 314

shift, early AM hours. (Joint exhibit 38 at page 25 and page 31 of 72).

Michael Willner testified that in January 2013 he prevented his mother from being

evaluated by a doctor in order to assess her medical needs. He stated that he needed to conduct

some research in order to determine if the evaluation was necessary. There was no evidence

presented as to Michael Winner's medical training in order to evaluate the need for a medical

consultation. This resulted in a one month delay in having the evaluation. This shows his

inability to come to terms with the fact that his mother is ill and needs medical care. His actions

are clearly placing Joyce Willner at risk. IfJoyce Willner were in the community as Michael

Winner desires, he would have the sole ability to make decisions for her, even if they are against

medical advice, and not in the best interest of his mother.

Michael Willner's appalling behavior culminated in his filing a divorce action,

purportedly on behalf of Mrs. Willner. This was yet another blatant action to disregard and

ignore the Orders of the South Kingstown Probate Court. Pursuant to the Probate Order dated

July 19, 2013 Attorney Melish was allowed to enter his appearance on behalf of Michael A.

Willner only. Attorney Melish was specifically ordered and was prohibited from representing

either the Ward or the Estate of Joyce C. Winner. On or about July 31, 2013, Michael Willner

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with the assistance of Attorney Melish filed a Divorce action with the Washington County

Family Court, with Attorney Melish listed as the "attorney for Joyce C. Willner"

Due to his inappropriate actions, as documented in the Roberts Health Center records and

the testimony of the State of Rhode Island ombudsman, Michael Willner has been restricted in

his interactions with Joyce Winner. (Joint exhibit 27, appellees exhibits F & 0) Michael

Willner is restricted to visiting Joyce Willner in the common areas only at Roberts Health Care

Center. This Court must take into account the actions of Michael Milner in determining if he is

acting in the best interest of Joyce Willner.

The actions by Michael Willner should be considered contempt of court and clearly are

grounds for the removal of a guardian. The Rhode Island General Laws state that the court shall

remove any limited guardian, guardian, or conservator that have not fulfilled their duties. The

actions of Michael Willner, including utilizing a member of the Rhode Island Bar (Attorney

Melish) in order to circumvent the valid orders of the Probate Court are grounds that would

require the removal of Michael Willner as the guardian. Michael Willner has taken actions, as

outlined above, that are not in the best interest of the ward, Joyce Willner in violation of the

standard set forth in R1GL§ 33-15-18 (a) (1) states, in pertinent part, "that the court shall remove

any limited guardian, guardian or conservator...upon finding that [he] has not fulfilled...the

duties of the appointment as forth by the order itself and/ or the ...guardianship law." Since this

Court will be making a determination as to the best interest of Joyce Willner, an elderly woman

with Alzheimer's disease, it should take into account as much information as possible in order to

come to a fair and just decision. Rhode Island has a settled judicial tradition of engaging in an

examination of all relevant circumstances when determining what is in a person's "best

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interests", particularly when that person is impaired or otherwise incapable of making his or her

own decisions because of age or infirmity. See e.g., Andreozzi v. Andreozzi, 813 A.2d 78, 82

(R.I. 2003).

Clearly, Michael Willner does not have the requisite ability to fulfill his duties as

guardian with the best interest of Joyce Wainer in mind. The appellants have not provided any

evidence that Michael Willner has acted in the best interest of Joyce Willner. The appellees have

shown through clear and convincing evidence that the actions of Michael Winner are not in the

best interest of Joyce Willner and he continues to act against her best interest.

The appellees hereby request that this court confirm the orders of the Probate court and

remand this matter to the Probate court for the continued administration of this guardianship and

grant the appellees any such further relief that this court deems just and proper.

Appellee Kurt Willner & Yaffa Winner By,4heir Attorney,

Alan M. Barnes, Esq. Bar #4253 Connelly Law Offices, Ltd. 372 Broadway Pawtucket, RI 02860 (401) 724-9400

April 29, 2014

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CERTIFICATION

I hereby certify that on April 30, 2014, a copy of the foregoing was sent by regular U.S. Mail, postage prepaid to

H. Jefferson Melish, Esquire 74 Main Street Wakefield, 81 02879

Anne M. Mu[ready, Esquire Rhode Island Disability Law Center, Inc. 275 Westminster Street, Suite 401

idence, RI 02903

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