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STATE OF RHODE ISLAND SUPERIOR COURT WASHINGTON, SC.

In Re Estate of JOYCE C. WILLNER C.A. No. WP13-0400

PRETRIAL MEMORANDUM OF THE APPELLANT/INTERVENOR

RHODE ISLAND DISABILITY LAW CENTER, INC.

Introduction

This guardianship appeal raises issues regarding the degree to which an individual, whose

decision-making ability is compromised by disability, gets to participate in making important life

choices, including where to live. It also raises questions regarding a guardian's ability to

effectuate his ward's choices, when those choices are consistent with the ward's civil rights and

state and federal policy.

Facts

Joyce Willner is an 88 year old woman who currently resides at Roberts Health Centre in

North Kingstown, Rhode Island. She has been residing there since approximately May 9,

2012, and is a recipient of Medicaid benefits from the state of Rhode Island. (Undisputed Facts

9, 10, 11).

Joyce Willner is the wife of Kurt Willner, and together they have two children, Yaffa and

Michael Willner. Joyce lived with Kurt Willner at her home on Indian Lake in South Kingstown

(Undisputed Facts 1 and 3), until she experienced a brief hospitalization at South County

Hospital, just prior to her admission to the nursing home. (Undisputed Exhibit 38).

On September 24, 2012, Michael Willner filed a guardianship petition in the South

Kingstown Probate Court seeking to become the Guardian of his mother, Joyce C. Willner, based

on a DMAT prepared by Dr. Andrew S. Rosenzweig, a geriatric psychiatrist. On September 27,

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2012, Michael Willner was appointed Temporary Guardian of his mother over the objection of

Kurt Willner. (Undisputed Facts 13 and 14).

On or about November 26, 2012, a deposition was taken of Andrew Rosenzweig, MD,

MPH on behalf of Kurt Willner. (Undisputed Fact 15). Within that deposition, Dr. Rosenzweig

testified regarding:

(1) His credentials as a psychiatrist, board certified in both adult and geriatric psychiatry, his position as Chief Clinical Officer for MedOptions since 2006, and his teaching position at the Brown University, Warren Alpert Medical School, (pp. 3-4);

(2) His assessments of Joyce Winner on September 7 and October 11, 2012, and his diagnosis (based on these assessments, review of records and conversations with nursing facility staff) of "dementia due to Alzheimer's Disease, late onset, uncomplicated, meaning she does not have significant depression or delusions or behavioral disturbance that sometimes accompany the diagnosis," (pp. 14-15);

(3) His observation that Joyce Willner made consistent and strong statements regarding her desire to return home, (p.24-27);

(4) His conclusion that Joyce, as a person with dementia, "deserves to be in the least restrictive environment possible to maintain their personal care and safety and quality of life, and in Joyce's case a nursing home was not the least restrictive environment to make that happen," (p. 27);

(5) His conclusion that Joyce, like most of the people with dementia nationally, does not require nursing home care, (p. 41); and

(6) His conclusion that the medical community would disagree with her need for nursing 'home care, and would agree that "if there was a way to make this work in a non-nursing home environment, let's give her the chance. She survived a concentration camp. She's clearly a special person in many ways, and deserves that try," (p. 42).

A Guardian Ad Litem (GAL) was appointed by the Probate Court and after conducting an

investigation filed a report on November 29, 2012, recommending that Michael Willner be

appointed permanent Guardian and that Joyce Willner be allowed to return to her home or to her

neighbor's home from the nursing home. (Undisputed Fact 16). In addition to fulfilling his

statutory duties to interview and inform Joyce Willner of her rights, the GAL met separately with

Kurt Willner and Michael Willner, as well as with Kara Steele, a neighbor and long-time friend

of Joyce Willner. The GAL observed "Joyce was clear in her desire to return home and was

lucid in our discussions." (GAL report, p.4).

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On December 14, 2012, Michael Willner was appointed permanent Guardian of the

person and estate of Joyce C. Willner. No appeal was pursued to the December 14, 2012

Decision by the Spouse or any other interested party. (Undisputed Facts 17 and 18).

The Probate Court Order appointing Michael as guardian left unresolved the question of

how financial decisions for Joyce Willner would be made. See Undisputed Exhibit 8. The Order

limited Michael Willner's access to Joyce Willner's assets and income, but also indicated all

prior powers of attorney were insufficient. No inventory of Joyce Willner's estate as required by

R.I. Gen. Laws § 33-15-19, is in the record of Probate Court proceedings. It may be that the

Probate Court contemplated that Kurt and Michael would resolve these financial between

themselves. Any such attempt was not successful. A proposed Home Health Plan of Care was

prepared by Michael Willner for Joyce Willner dated January 3, 2013. (Undisputed Fact 19). A

document purporting to be an agreement between Michael and Kurt Willner regarding Joyce

Willner's care when she returned home was made part of the Probate record. An April 22, 2013

motion was filed to enforce the Agreement dated January 3, 2013 (Undisputed Exhibit 12) and

an objection thereto dated April 24, 2013 was thereafter made (Undisputed Exhibit 13).

The Guardian filed motions seeking to transfer his mother to a less restrictive

environment than the nursing home, to wit: either to her home or to her next door neighbor's

home; and to have access to the Ward's assets and income to fulfill his fiduciary duty as

Guardian. The Probate Court denied the Guardian's home care plan and his effort to access his

mother's assets and income. (Undisputed Facts 21 and 22 and Undisputed Exhibits 17 and 18).

On or about April 25, 2013 a Removal Petition was filed in the Town of South

Kingstown Probate Court requesting the removal of Michael Willner as the guardian of Joyce

Willner. On or about July 9, 2013, Attorney H. Jefferson Melish filed an Objection to the

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Removal Petition. {Undisputed Facts 24 and 25) The removal petition was originally scheduled

for a hearing before the South Kingstown Probate Court for July 18, 2013. (Undisputed Fact 27).

A Miscellaneous Petition attempting to schedule the removal petition was filed on August

14, 2013 requesting an August 22, 2013 hearing date. On the morning of August 15, 2013, the

South Kingstown Probate Court convened a special session hearing regarding the matter of the

Estate of Joyce Willner. (Undisputed Facts 28 and 29). On the afternoon of August 14, 2013, the

office of Attorney H. Jefferson Melish and the office of Attorney RJ Connelly, III were notified

via telephone and by email, by a representative of the South Kingstown Probate Court, that a

hearing would take place on August 15, 2013. (Undisputed Fact 31). The office of Attorney H.

Jefferson Melish notified Michael Willner via telephone of the hearing that was to take place on

August 15, 2013 the morning of the hearing. (Undisputed Fact 33).

Attorney H. Jefferson Melish participated in the hearing on the morning of August 15,

2013 by telephone from out-of-state. (Undisputed Facts 32 and 33). At the August 15, 2013

hearing of the Probate Court of South Kingstown, Attorney Melish voiced his objection to the

Court's lack of jurisdiction over a matter whose appeal had already been perfected in the

Superior Court, and to the violation of notice requirements for the Guardian and the Ward and

the lack of sufficient notice. (Undisputed Fact 34).

A transcription was made of the August 15, 2013 Special Session Hearing of the South

Kingstown Probate Court. The Probate Court listened to arguments of counsel, but no witnesses

provided testimony regarding grounds for removal. (Undisputed Exhibit 23) The question of

whether Michael Willner acted in his mother's best interest was the focus of the Probate Court's

review. See for e.g. "what's important to me is Joyce Willner's best interest" (Undisputed

Exhibit 23, p. 3); "isn't the focus ... to advance her best interests, whether it's go home or to stay

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in a high level nursing home?" (Undisputed Exhibit 23, p. 10); and "[w]had matters is ... his

insistence on disrupting the placement of Mrs. Willner, senior" (Undisputed Exhibit 23, p. 6).

On or about August 15, 2013 the South Kingstown Probate Court issued an order

removing Michael Wiliner as the guardian of Joyce Willner and appointed Yaffa Willner as the

successor guardian. (Undisputed Fact 36 and Undisputed Exhibit 24). On or about February 14,

2013, a quitclaim deed was recorded in the land evidence records of South Kingstown, which

was signed by Kurt Winner. The deed transferred the property at 21 Tomahawk Trail, South

Kingstown, RI to Yaffa Wiliner for one Dollar, and reserved a life estate interest in the property

of Kurt Willner. (Undisputed Statement 20 and Undisputed Exhibit 11). A quitclaim deed

regarding the same property from Kurt Wiliner as agent for Joyce Willner to Kurt Willner had

been recorded on September 19, 2012 (Undisputed Exhibit 2) -- just days before the petition for

guardianship of Joyce Willner was filed (Undisputed Exhibit 3). The 2013 tax assessed value of

the property at 21 Tomahawk Trail, South Wakefield, RI is $358, 900.00. (Undisputed Fact 42).

Kurt and Yaffa Wiliner indicate Joyce Willner has income which includes a net monthly

Social Security payment 05923.00 per month, annuities of approximately $892.17 per month

and Gelman Reparations Payments of $1, 282.00 received periodically, presumably on a

quarterly basis. (Undisputed Statement 40). Joyce Willner does not have a Representative Payee

— a fiduciary appointed by the Social Security Administration to manage her benefits.

(Undisputed Fact 41).

Recent medical records from Roberts Health Centre indicate Joyce has a fairly stable

mood and no cognitive deterioration. See 11/18/2103 evaluation notes of Therese Kleinkopf and

Medication Flow Sheet, entry for start date10/13/2013. (Uncontested Exhibit 38). Consistent

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with these reports, Yaffa Willner also indicated to the Probate Court in her Annual Status Report

as guardian, that Joyce Willner condition remains stable. (Undisputed Exhibit 28).

Frequent entries in the Roberts Health Centre record document Joyce's continuing

expressions of her desire to leave and be with her family. See Resident Progress notes dated

8/29/2013, 4:44 AM entry "I want my family. I don't want to be here. I want to leave" and 9:44

AM entry "I want my husband I want to go"... "My family, please help me;" and notes dated

10/04/2013 "where is my family," 10/06/2013 "asking for family, anxiety behaviors,"

10/23/2013 entry at 12:44 AM "calling out for her family, " 10/25/2013 entry at 4:52 AM "I

want my family," and 11/22/2013 entry at 4:19 AM "awake with high anxiety call out loud for

her family." (Undisputed Exhibit 38)

Travel of the Case

The July 16 and July 25, 2013 Orders denying Michael Willner the opportunity to access

his mother's income and assets and his motion to move Joyce Willner back to her home or to her

neighbors' home were appealed to this court, as was the August 15, 2013 order removing him as

guardian. (Undisputed Exhibits 21 and 22).

By Order dated January 2, 2014, the appellant Rhode Island Disability Law Center, Inc.

was allowed to intervene in this matter on behalf of Joyce Willner.

As an appeal of Probate Court decision, the matters appealed from are heard de novo.

R.I. Gen. Laws. § 33-23-1(d). See also Malinou v. McCarthy, 200 A.2d 578, 579 (RI 1964).

Issues Before the Court

Before the Court are the following issues for decision:

1. Whether there is clear and convincing evidence of statutory grounds for removing Michael Willner as the guardian of Joyce Willner;

2. Whether the Probate Court erred in denying Joyce Willner her choice of guardian and her choice of where to live;

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3. Whether the Probate Court erred in determining that Joyce Willner should remain in an institutional setting (i.e., a nursing facility) rather than return home or to another community setting; and

4. Whether the Probate Court afforded the requisite notice and process in its procedures to remove Michael Willner as guardian.

Argument

Statutory grounds for removing Michael Willner as guardian of Joyce Willner have not been specifically alleged, nor has evidence of such grounds been presented.

As a moving party, appellees bear the burden of proving there are grounds for removing

Michael Willner as guardian. See Santiano v. Auto Placement Center, Inc., 379 A.2d 368, 370

(R.I. 1977) ("As the moving party, the burden of proof was his to prove that which he alleged").

The grounds for removing a guardian are governed by statute. Generally, a fiduciary appointed

by Probate Court can-.be removed if he becomes incapable of executing his or her trust, neglects

or refuses to do the duties of the trust, or wastes the estate of the ward. R.I. Gen. Laws § 33-18-2.

A guardian can also be removed when the guardian is not fulfilling the duties set forth in court

order, when the ward has regained capacity, or upon resignation. R.I. Gen. Laws § 33-15-18.

The standard of proof in determining whether a guardian should be appointed and who that

guardian should be is clear and convincing evidence, R.I Gen. Laws § 33-15-5(3). The ward has

legal interest in having a person of her preference serve as guardian, R.I. Gen. Laws § 33-15-

6(e). Removal of such a guardian is therefore subject to the same standard of proof.

No statutory grounds for removing Michael Willner as guardian were alleged in the

Removal Petition filed by Kurt Willner on April 25,.2013. (Undisputed Exhibit No. 14). The

petition was on a form pertaining to fiduciaries for decedent's estates. As grounds for removal,

Kurt Willner checked the "other" box and added a general statement that Michael Willner was

not acting in the ward's best interests. No facts supporting removal were given. An objection to

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the removal petition was filed. (Undisputed Exhibit 16). More than three months later, Kurt

Wiliner filed a Miscellaneous Petition dated August 14, 2013, supplementing his reasons for

removing Michael Winner as guardian. Added were a generic claim of failing to fulfill his

duties, having a personal agenda, and filing a complaint for divorce on behalf of the ward.

(Undisputed Exhibit No. 29).1 These additional allegations still did not allege a statutory ground

for removal, i.e., failure to execute trust, wasting the estate, failing to fulfill the duties of the

order of appointment. See RI. Gen. Laws § 33-15-18 and §33-18-2.

When this petition was heard on August 15, 2013, the question of whether Michael

Winner acted in his mother's best interest was the focus of the Probate Court's review, rather

than any statutory grounds for removal. See "what's important to me is Joyce Willner's best

interest" (Undisputed Exhibit 23, p. 3); and "isn't the focus ... to advance her best interests,

whether it's go home or to stay in a high level nursing home?" (Undisputed Exhibit 23, p. 10)

(emphasis added). Ultimately, the Probate Court viewed Michael Winner's attempts to move his

mother out of a nursing facility as not in her best interests, finding reason for removal in Michael

Willner's "insistence on disrupting the placement of Mrs. Winner, senior." (Undisputed Exhibit

No. 23, p. 6).

While a guardian has a general duty to act in best interest of the ward (R.I. Gen. Laws

§33-15-29), failing to act in a ward's best interest is not statutory grounds for removal. Even if

failing to act in best interest were grounds for removal, Michael Willner's efforts to return Joyce

Wiliner to live in her home or her neighbors' are in her best interest, especially when viewed in

the light of current law and policy.

Rhode Island has recognized that wards have liberty interests in marriage, and that guardian consent is not necessary for marriage. See Ex parte Chace, 58 A. 978 (1904) and Pearce v. Cochrane, 186 A.2d 68 (1962).

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Michael Willner's actions as guardian with respect to the residence of Joyce Willner are consistent with guardianship law and policy that promotes her choice.

In 1992, Rhode Island's guardianship statute was substantially revised and modernized.

The General Assembly specifically recognized that "every individual has unique needs and

differing abilities" and that "it is the purpose of this act to promote the public welfare by

establishing a system that permits incapacitated persons to participate as fully as possible in all

decisions affecting them..." (emphasis added). R.I. Gen. Laws § 33-15-1. In addition to

maximizing the autonomy of persons under guardianship, the new statute ensured specific rights

for individuals subject to a petition (e.g., notice, right to counsel, right to participate in

proceedings) and incorporated the preferences of individuals, for example, in the choice of

guardian. R.I. Gen. Laws § 33-15-5 and § 33-15-7, and § 33-15-6(e).

These legislative changes followed court decisions that sought to protect the ability of

persons whose decision-making ability was impaired, to have their choices regarding medical

treatment followed. Courts defined a "substituted judgment" standard to be applied in those

circumstances. See In Re Jane Doe, 533 A.2d 523 (RI 1987) (determining what decision a young

woman with a profound intellectual disability would make, were she capable of doing so, with

respect to terminating a pregnancy); and Gray v. Romeo, Director of the Department of MHRH,

697 F. Supp. 580 (RI 1988) (finding that an adult woman rendered comatose as a result of a brain

hemorrhage would have exercised her right to refuse medical treatment, based upon her prior

express preferences).2

Current professional standards have moved beyond substituted judgment decision-

making, to requiring that guardians "identify and advocate for the [ward's] goals, needs and

2 Cf Cruzan v. Missouri Department of Mental Health, 497 U. S. 261, 110 S. Ct. 2841 (1990) (permitting state to require clear and convincing evidence of a brain dead woman's wishes before terminating life support).

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preferences." See National Guardianship Association: Standards of Practice, 4th Edition (2013)

p.6. These standards specify a process for a guardian to engage in, in order to make a decision

for a ward, requiring the guardian to be driven first by the person's wishes, then, only if those

wishes cannot be expressed, by a substituted judgment analysis, and only when that is not

possible, to make a decision based on best preference:

A. First, the guardian shall ask the person what he or she wants. B. Second, if the person has difficulty expressing what he or she wants, the guardian shall do everything possible to help the person express his or her goals, needs, and preferences. C. Third, only when the person, even with assistance, cannot express his or her goals and preferences, shall the guardian seek input from others familiar with the person to determine what the individual would have wanted. D. Finally, only when the person's goals and preferences cannot be ascertained, may the guardian make a decision in the person's best interest.

See http://www.guardianship.org/documents/Standards of Practice.pdf.

Joyce Willner has unswervingly expressed her preference to return home from Roberts

Health Centre. She has expressed this desire to Dr. Rosenzweig, to her GAL, George J. Bauerle,

III, Esq., to her neighbors, Karla Steele and Marshall Feldman and to Michael Willner. Dr.

Rosenzweig observed that Joyce Willner made consistent and strong statements regarding her

desire to return home. (Deposition, p. 24-27). The GAL observed "Joyce was clear in her desire

to return home and was lucid in our discussions." (GAL report, p.4). Joyce continues to express

her desire to nursing facility staff to return home. See Resident Progress notes dated 8/29/2013,

4:44 AM entry "I want my family. I don't want to be here. I want to leave" and 9:44 AM entry

"I want my husband I want to go"... "My family, please help me;" and notes dated 10/04/2013

"where is my family," 10/06/2013 "asking for family, anxiety behaviors," 10/23/2013 entry at

12:44 AM "calling out for her family, " 10/25/2013 entry at 4:52 AM "I want my family," and

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11/22/2013 entry at 4:19 AM "awake with high anxiety call out loud for her family."

(Undisputed Exhibit No. 38).

Michael Willner's advocacy in support of his mother's expressed desire to return home is

entirely consistent with the legislative intent of Rhode Island's guardianship statute, i.e., to

permit "incapacitated persons to participate as fully as possible in all decisions affecting them..."

(emphasis added). R.I. Gen. Laws §33-15-1. His advocacy also conforms to the National

Standards recently adopted by the National Guardianship Association, in that he has prioritized

advocating for what Joyce Willner says she wants.

Michael Willner's actions as guardian with respect to the residence of Joyce Willner are consistent with her civil rights and Medicaid laws that promote her right to live in the most integrated setting.

As a person with a disability, Joyce Willner is protected by state and federal civil rights

laws which ensure her equal opportunity to access state and local government programs and

services. Embedded within the concept of equal access for individuals with disabilities is the

right not to be segregated, and to be served in the most integrated setting. The most notable of

these civil rights laws is the Americans with Disabilities Act ("ADA").3

Title II of the ADA prohibits discrimination on the basis of disability by state and local

government entities 42 U.S.C. § 12132. Congress charged the U.S. Department of Justice (DOJ)

with promulgating regulations to implement Title II of the ADA. 42 U.S.C. § 12134. Within its

implementing regulations, DOJ expressly stated the ADA's integration mandate: "a public entity

3 Title II of the ADA was expressly modeled after Section 504 of the Rehabilitation Act, See Parker v. Universidad De Puerto Rico, 225 F.3d 1, 4 (1st Cir. 2000). The Department of Justice regulations interpreting Section 504 of the Rehabilitation Act also contain a requirement that recipients of federal funds "administer programs and activities in the most integrated setting appropriate." 28 C.F.R. § 41.51(d). The Rhode Island Civil Rights of People with Disabilities Act ("RIPDA") encompasses the rights and protections of both the ADA and Section 504. Discrimination under RIPDA is defined to include any actions that are prohibited by the ADA. R.I.G.L. § 42-87-1.1(2); and a violation of the ADA is a violation of the RIPDA. See G.L. 1956 § 42-87-3 (5)(ii) and (6)

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shall administer services, programs, and activities in the most integrated setting appropriate to

the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The U. S. Supreme

Court has recognized that a state's failure to comply with the ADA's integration mandate

constitutes discrimination under the ADA and is a violation of Title II. See Olmstead v. L.0 ex

rel. Zimring, 527 U.S. 527 at 597-603 (1999).

Courts have consistently recognized the rights of individuals with disabilities under the

ADA to be free from unnecessary segregation in nursing homes. See Voss v. Rolland, 592 F.3d

242, 247 (1st Cir. 2010). (class action on behalf of individuals with developmental disabilities

residing in nursing homes, who could otherwise be living in community settings); Radaszewski

v. Maram, 383 F.3d 599 (7th Cir. 2004) (reversing judgment on the pleadings and remanding a

suit brought by mother of adult son with brain injury seeking to continue round the clock one-to-

one private duty nursing services at home so that her son would not have to enter a nursing

facility); Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003); and Fisher v. Oklahoma Health

Care Authority, 335 F.3d 1175 (10th Cir. 2003) (reversing summary judgment in favor of state

Medicaid agency, finding that the state's failure to provide community-based services to disabled

individuals in the community could put them at risk of institutional care in a nursing facility, and

thus potentially violate the ADA).

To help facilitate the right to live in community settings, federal Medicaid law promotes

and funds home and community-based services (HCBS) as an alternative to nursing facilities and

other institutions. The Center for Medicare and Medicaid regulations at 42 CFR Parts 430, 431,

435, 436, 440, 441 and 447 were recently amended to further this goal:

Along with our overarching goal to improve Medicaid HCBS, we seek to ensure that Medicaid is supporting needed strategies for states in their efforts to meet their obligations under the ADA and the Supreme Court decision in Olmstead v. L.C., 527 U.S.581 (1999). In the Olmstead decision, the Court affirmed a state's obligations to

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•

provide covered program services to eligible individuals with disabilities in the most integrated setting appropriate to their needs. A state's obligations under the ADA and section 504 of the Rehabilitation Act are not defined by, or limited to, the services provided under the State's Medicaid program. However, the Medicaid program can support compliance with the ADA, section 504 of the Rehabilitation Act, and Olmstead through the provision of Medicaid services to Medicaid-eligible individuals in integrated settings.

79 Fed. Reg. 2951(January 16, 2014).

By statute and regulation, Rhode Island has incorporated opportunities into its Medicaid

program for individuals to receive services in the most integrated setting. In 2008, the General

Assembly enacted a Medicaid System Refoun initiative directing the state Medicaid agency to

implement a number of reforms, including "[w]hen appropriate, promot[ing] community-based

care solutions by transitioning beneficiaries from institutional settings back in to the community

and by providing the needed assistance and supports to beneficiaries requiring long-term care

or residential services who wish to remain, or are better served in the community" (emphasis

added). R.I. Gen. Laws § 42-7.2-16 (b)(3). See also R.I. Gen. Laws § 40-8-17(a) and § 40-8.10-

1. State Medicaid regulations describe a variety of services and programs that enable individuals

to live in home and community based settings, rather than in institutional settings, such as

nursing homes. See for e.g.

0300.20.20 Waiver Programs The Rhode Island EOHHS operates several programs under the 1115 Research and Demonstration Waivers. The 1115 Waiver allows beneficiaries to obtain the Medicaid services they need in the most appropriate least restrictive setting. The types of long-term care available to beneficiaries are categorized as institutional and home and community-based. To be eligible, a recipient must require the level of care provided in an institutional setting, and meet the eligibility criteria described in the specific Long Term Services and Supports program. R.I. Admin. Code 39-3:0300.204

0396.05 OVERVIEW OF WAIVER PROGRAMS

4 Amended elf. 4/1/13 See: http://sos.ri.gov/documents/archives/regdoes/released/pdf/E0HHS/7716.pdf

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Many individuals who require the level of care provided in an institutional setting may be able to receive such services at home. ... Home and community-based services are a humane, cost-effective, and generally preferable way of providing institutional levels of care to eligible individuals. R.I. Admin. Code 39-3:0396.055

Personal Choice Program The Personal Choice Program (PCP) provides consumer-directed home and community-based services to Medicaid Long Term Care (LTC) eligible beneficiaries. Personal Choice is a Long Term Care service for individuals with disabilities who are over the age of eighteen (18) or elders aged sixty-five (65) or over who meet either a high or highest level of care. Services are geared toward reducing unnecessary institutionalization by providing specialized home and community-bases services to qualified Medical Assistance beneficiaries at an aggregate cost which is less than or equal to the cost of institutional or nursing facility care.

Personal Choice is available to individuals who want to either return home or remain at home; for individuals who want to purchase their own care and services from a budget based on their individual functional needs; and for individuals who have the ability to self-direct care or who have a representative who is able to direct care for the participant. R.I. Admin. Code 39-1-142:16

As a Rhode Istand Medicaid recipient in an institutional setting (nursing home), Joyce

Willner is entitled to pursue home and community-based services in lieu of her institutional care.

In trying to help Joyce Willner access these services, Michael Willner acted in accordance with

rights guaranteed her by the ADA, as well as in accordance with state and federal Medicaid law.

To find as the Probate Court did that advocating for Joyce's desire to return the community and

her legal rights is somehow not in her best interest, ignores the progress of over twenty years of

civil rights laws and Medicaid law and policy.

There are no grounds to override Joyce Willner's preference to have Michael Willner as guardian.

Rhode Island guardianship law requires that Joyce Willner be consulted regarding her

choice for guardian, and that the Probate Court consider her preferences among individuals

5 Amended effective 4/1/2014: See http://sos.ri.gov/documents/archives/regdocs/released/pdf/E0HHS/7729.pdf 6 See also: http://sos.ri.gov/doeuments/archives/regdocs/released/pdf/E0HHS/6905.pdf

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eligible to serve. R.I. Gen. Laws §§ 33-15-6(b) and (e) and 33-15-7(iv). The Guardian Ad Litem

(GAL) appointed by the Probate Court recommended that Michael Willner be appointed

permanent Guardian (Undisputed Fact 16). Absent evidence of unsuitability as defined by

statute, Joyce's expressed preferences to have Michael Willner serve as her guardian should be

honored.

A Probate Court does not have the authority to effectively commit Joyce Willner to a nursing home.

Probate Courts derive their jurisdiction wholly from statute. Trustees of the House of

Angel Guardian, Boston v. Donovan, 46 A. 2d 717, 718 (R.I. 1946). There are no specific

provisions within Chapter 15 of Title 33 of Rhode Island General Laws, the Limited

Guardianship and Guardianship of Adults statute, which authorize a Probate Court judge to order

a ward to nursing home or other institution.7 Nor does the legislative authority granted to

Probate Courts to transact matters incidental to its powers authorize the Probate Court to order a

person to a nursing facility. R.I. Gen. Laws § 8-9-9.

Even if such legislative authority existed, the deprivation of liberty inherent in such an

order of confinement would raise significant constitutional issues. An order confining an

individual against her will requires a finding of dangerousness and no less restrictive alternatives.

See O'Connor v. Donaldson, 422 US 563 (1975) ("A state cannot constitutionally confine

without more a nondangerous individual who is capable of surviving safely in freedom by

himself or with the help of willing and responsible family members or friends." Id at 575-576).

In limited circumstances, the Probate Court is allowed to appoint a temporary guardian to authorize and direct any action necessary to admit an individual to a nursing facility. Before doing so, the Court must make specific findings including that there is no person available to serve as a full-time guardian, and there are no financial resources available for the persons care, and that it is necessary for proper care and treatment that the person be moved to a nursing facility. R.I. Gen. Laws § 33-15-8.1.

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The South Kingstown Probate Court order of August 15, 2013 effectively confined Joyce

Willner to a nursing facility. In removing Michael Willner as guardian, due to "his insistence on

disrupting the placement of Mrs. Willner, senior" (Undisputed Exhibit 23 p. 6), the Probate

Court foreclosed Joyce Willner's opportunity to leave her institutional residence. The Probate

Court made this decision without determining whether Joyce Willner was capable of living in a

community setting "with the help of willing and responsible family members or friends." This

confinement of Joyce Willner by the Probate Court was done in violation of her constitutionally

protected liberty interests.

This confinement also occurred without regard to the constitutional rights accorded to

individuals confined by state action. In Rhode Island, the basic due process rights of persons

subject to commitment have long included the right to institute proceedings to challenge their

own confinement and to be heard and adduce evidence on their own behalf. In re Gannon, 18 A.

159, 160-161 (RI, 1889). No notice, opportunity to be heard, or chance to adduce evidence was

provided for in the August 15, 2013 court hearing. The confinement of Joyce Willner was also

done without the protections afforded by the Rhode Island current civil commitment statute for

those with mental illness. Those protections include certification of the need for confinement by

two examining physicians, the right to counsel at state expense, the right to an independent

examination at state expense, the right to subpoena witnesses and documents at state expense, the

right to cross-examination and the right to have the case proven by clear and convincing

evidence with the burden of proof placed on the petitioner state. See R.I. Gen. Laws. § 40.1-5-8.

Because the court did not provide effective notice prior to removing Michael Willner as guardian, it did not have jurisdiction to order his removal

In Probate Court proceedings, notice requirements are governed by statute. In removing

a guardian, the Probate Court itself is charged with providing notice, and specifically with

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providing newspaper publication notice at least fourteen days prior to the hearing date contained

in the notice. R.I. Gen. Laws § 33-22-11 and § 33-22-7(4). In petitions for removal, a citation is

also required, R.I. General Laws § 33-18-3. Such citation is to be served upon the guardian at

least seven (7) days before the proceeding, R.I. Gen. Laws § 33-22-12. Probate Courts can only

act in the mariner prescribed by statute as to notice, and actions of the Probate Court are null and

void when such procedures are not followed. See Briggs v. Probate Court of Westerly, 50 A.

335, 336 (R.I. 1901). There is no evidence in the Probate Court record that newspaper notice or

service of citation were made with respect to the hearing on the petition to remove Michael

Willner as guardian.

In contested Probate Court matters, the Rhode Island Rules of Evidence apply and the

Rhode Island Superior Court Rules of Civil Procedure may be applied with some discretion left

to the Probate Court to "shorten or enlarge deadlines for compliance as the circumstances

warrant." R.I. Gen. Laws § 33-22-19.2. Rule 6(c) of the Rhode Island Superior Court Rules of

Civil Procedure requires motions to be served not later than ten (10) days before the hearing. A

hearing on the removal petition had been scheduled for September 19, 2013. (Undisputed

Statement 27). When the appellees filed their Miscellaneous Petition on August 14, 2013, they

requested a hearing date of August 22, 2013. There was no emergency to Joyce Willner's person

or estate that required the Probate Court to dispense with a ten (10) day notice and schedule a

hearing for August 15, 2013.

Hearings in guardianship proceedings afford a respondent ward an array of procedural

rights, including the right to confront and cross-examine witnesses, to present evidence, to

compel the attendance of witnesses, to provide expert testimony and to have proof determined by

clear and convincing evidence. R.I. Gen. Laws § 33-15-5. When the Probate Court scheduled

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the August 15, 2013 hearing with less than twenty-four hour notice to counsel, the Court clearly

did not give the ward, her counsel or her guardian sufficient time or opportunity to exercise these

rights.

Denying Joyce Willner and her representatives of appropriate notice and an opportunity

to present evidence and develop a record in support of her choice of guardian, deprives Joyce

Willner of due process. See Cotnoir v. University of Maine Systems, 35 F.3d 6, 10-11(1s0 Cir.

1994) and cases cited therein, regarding constitutional requirements for notice and process when

an individual is deprived of a liberty or property interest.

List of Witnesses

Appellant, Rhode Island Disability Law Center, Inc., will use the same witnesses as

appellants in this matter. See list submitted with Trial Memorandum of Attorney Melish.

Evidentiary Issues to Be Resolved

Appellees object to the inclusion of several documents as Undisputed Exhibits. These

documents are:

• The 9/21/12 DMAT of Dr. Rosenzweig, MD, MPH; • The 10/29/12 DMAT of Dr. Rosenzweig, MD, MPH; • The Guardian Ad Litem Report of George J. Bauerle, III, Esq.; • The 11/26/12 Deposition of Dr. Rosenzweig, MD, MPH; • The 1/3/13 Home Health Plan of Care prepared by Michael Willner; • Notification of Recipient Choice; • Michael Willner's Entry of Appearance; and • Objection to Entry of Appearance Pro Se.

The appellant believes that documents were made part of record of proceedings appealed

from, and as such may be utilized in this appeal without further authentication. R.I. Gen. Laws §

3 3 -23-1 (d). Further, the GAL report, as well as the Dr. Rosenzweig's deposition and DMATs

18

were made Probate Court records prior to the original determination of Joyce Willner's need for

guardianship — a deteiiiiination that was not appealed.

Requiring witness testimony regarding these documents will extend the time needed for

trial.

Appellant has also filed an Objection to the to the Appellees' Admission for Trial of the

Affidavit of Shahzad Kurshid, MD Pursuant To R.I. Gen. Laws § 9-19-27. As grounds

therefore, appellant has indicated the affidavit is not relevant. The Affidavit appends a recently

completed Decision-Making Assessment Tool (DMAT), which is statutory form describing the

decision-making capacity of a proposed ward, necessary to be filed with a petition for

guardianship. R.I. Gen. Laws § 33-15- 4(a)(1) and § 33-15-47. Appellant has agreed that Joyce

Willner needs a guardian. See Undisputed Fact 37. The completed DMAT, dated January 29,

2014, is therefore not relevant to these proceedings.

Conclusion

The appellant seeks reversal of the Probate Court Orders appealed from and the

opportunity for Joyce Willner to exercise her choice and right to live in a more integrated

community-based setting.

Respectfully submitted,

Anne M. Mulready, #4738 Rhode Island Disability Law Center, Inc. 275 Westminster St., Suite 401 Providence, RI 02903 (401) 831-3150 (401) 274-5568 facsimile

Dated: g/4/// V

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w_.

Certificate of Service

I certify a copy of the foregoing Pretrial Memorandum of the Rhode Island Disability Law Center, Inc. was mailed on April it, 2014to the following: Jefferson Melish, Esq., 74 Main Rd., Wakefield RI 02879, R.J. Connelly, III, Esq., and Alan M. Barnes, Esq., Connelly Law Offices, 372 Broadway, Pawtucket, RI 02860, and mailed to Michael Winner, 11521 Potomac Rd., Lorton, VA 22079-4264

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In Re Estate of JOYCE C. WILLNER C.A. No. WP13-0400

CITATIONS WITHIN PRETRIAL MEMORANDUM for the Appellant/Intervenor, Rhode Island Disability Law Center, Inc.

1. R.I. Gen. Laws § 33-15-19 2. R.I. Gen. Laws. § 33-23-1 3. Malinou v. McCarthy, 200 A.2d 578 (RI 1964) 4. Santiano v. Auto Placement Center, Inc., 379 A.2d 368 (R.I. 1977) 5. R.I. Gen. Laws § 33-18-2 6. R.I. Gen. Laws § 33-15-18 7. R.1 Gen. Laws § 33-15-5 8. R.I. Gen. Laws § 33-15-6 9. R.I. Gen. Laws § 33-15-29 10. Ex pane Chace, 58 A. 978 (1904) 11. Pearce v. Cochrane, 186 A.2d 68 (1962) 12. R.I. Gen. Laws § 33-15-1 13. R.I. Gen. Laws § 33-15-7 14. In Re Jane Doe, 533 A.2d 523 (RI 1987) 15. Gray v. Romeo, Director of the Department of MHRH, 697 F. Supp. 580 (RI 1988) 16. Cruzan v. Missouri Department of Mental Health, 497 U. S. 261, 110 S. Ct. 2841 (1990) 17. National Guardianship Association: Standards of Practice 18. 42 U.S.C. § 12132 19. 42 U.S.C. § 12134 20. 28 C.F.R. § 35.130 21. Olmstead v. L.0 ex rel. Zimring, 527 U.S. 581(1999) 22. Parker v. Universidad De Puerto Rico, 225 F.3d 1(1st Cir. 2000) 23. 28 C.F.R. § 41.51 24. Voss v. Rolland, 592 F.3d 242 (1st Cir. 2010) 25. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) 26. Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) 27. Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003) 28. 79 Fed. Reg. 2951(January 16, 2014) 29. R.I. Gen. Laws 42-7.2-16 30. R.I. Gen. Laws § 40-8-17 31. R.I. Gen. Laws § 40-8.10-1 32. R.I. Admin. Code 39-3:0300.20 33. R.I. Admin. Code 39-3:0396.05 34. R.I. Admin. Code 39-1-142:1 35. Trustees cif the House of Angel Guardian, Boston v. Donovan, 46 A. 2d 717, 718 (R.I.

1946) 36. R.I. Gen. Laws § 33-15-8.1 37. .R.I. Gen. Laws § 8-9-9 38. O'Connor v. Donaldson, 422 US 563 (1975) 39. In re Gannon, 18 A. 159 (RI, 1889) 40. R.I. Gen. Laws § 40.1-5-8

41. R.I. Gen. Laws § 33-22-11 42. R.I. Gen. Laws §33-22-7 43. Briggs v. Probate Court of Westerly, 50 A. 335 (R.I. 1901) 44. R.I. Gen. Laws § 33-22-19.2 45. Cotnoir v. University of Maine Systems, 35 F.3d 6 (1st Cir. 1994) 46. R.I. Gen. Laws § 33-15- 4 47. R.I. Gen. Laws § 33-15-47