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In re Estate of Willner

Superior Court of Rhode Island

July 1, 2014


Washington County Superior Court

For Plaintiff: H. Jefferson Melish, Esq. Anne M. Mulready, Esq.

For Defendant: Alan M. Barnes, Esq. Robert J. Connelly, III, Esq.



This family dispute finds its way to this Court on the appeal of Michael Willner (Michael[1]) and Joyce C. Willner (Joyce, and collectively Appellants) from various orders of the South Kingstown Probate Court filed on July 16, 2013, July 25, 2013 and August 19, 2013. Michael had been duly appointed as the guardian over the person and the estate of Joyce, his mother, but removed as guardian by order dated August 19, 2013, following the efforts of Kurt Willner (Kurt), Joyce's husband and Michael's father, and Yaffa Willner (Yaffa, and collectively, Appellees), Joyce and Kurt's daughter and Michael's sister. The crux of this family disharmony lies in Joyce's participation in making important life decisions, including where she should live.

Jurisdiction is pursuant to G.L. 1956 § 33-21-1. For the reasons set forth herein, the orders of the Probate Court are vacated.


Facts and Travel

Having reviewed the testimony and evidence presented by both parties, this Court makes the following findings of fact.

Joyce is 88 years old and suffering from advanced dementia. Joyce and Kurt were married in Israel in 1948; Joyce is a Holocaust survivor. Joyce and Kurt emigrated to the United States in 1957 with their two children, Michael and Yaffa. In the 1960s, Joyce and Kurt purchased a second home located at 21 Tomahawk Trail South in Wakefield, Rhode Island (the property), which they used as a summer home for many years. In the 1980s, Joyce and Kurt made that property their full-time residence. Kurt resides in that property today. At all times relevant hereto, Michael has resided in Virginia, and Yaffa has resided in Boston, Massachusetts. Joint Ex. 3.

Joyce and Kurt originally owned their property as joint tenants. In or about 1993, the property was transferred to Joyce, but later was transferred back to Joyce and Kurt as tenants by the entirety. In 1993, Joyce also granted to Kurt a general power of attorney. In 2004, Joyce granted to Michael a general power of attorney. Appellants' Ex. 11.[2]

In 2006, Joyce was diagnosed with Alzheimer's Disease and Kurt was battling his own serious medical issues. It was at this time that a family discussion took place among Joyce, Kurt, Michael and Yaffa and, for the first time, the notion of selling the house and moving to a nursing home or assisted living facility was broached. Joyce and Kurt emphatically responded that they wanted to continue to live in their house with assistance as necessary. Thereafter, Michael installed in his parents' home a computer with a webcam and a closed-circuit television which allowed Michael and his parents to communicate between thirty and sixty minutes daily, and at the same time allowed Michael to view his parents while he remained in Virginia. Additionally, Michael activated long-term health insurance for his parents and hired aides and private duty nurses to attend to them. Michael was able to communicate to the health care workers through the video feed he installed. By doing all this, Joyce and Kurt were able to stay in their home for several years. In that time, Kurt recovered from his serious medical issue.

In 2010, Joyce and Kurt's long-term health insurance was depleted and the family came together again to discuss the financial realities that Joyce and Kurt faced if they were to remain in their home. It was decided at that time that, in order to reduce the expenses of engaging a home health care aide, Michael would travel to Rhode Island for two weeks out of every month to stay with his parents, and Yaffa would come from Boston every Sunday to her parents' house. This arrangement lasted through 2011.

On April 11, 2012, Joyce was taken from her home to South County Hospital where she was admitted and treated for pneumonia. Joyce was placed in the intensive care unit and her family was told that Joyce's prognosis was grave. Joyce received hospice care, including a morphine drip, as it was believed she was near death. At that time, dissension arose between Michael, Kurt and Yaffa regarding the use of morphine; Michael believed it should be used only as needed, and Kurt and Yaffa believed it should be continually administered. Eventually, the morphine drip was discontinued and, according to Michael, Joyce "became as lucid as she had been in six years."

Apparently against all odds, Joyce had satisfactorily recovered from pneumonia and was released from hospice care at South County Hospital. The family then faced the important question of where Joyce should go upon her discharge from the hospital. Joyce, Kurt, Michael and Yaffa participated in that discussion and it was decided that Joyce would be transferred to Roberts Health Centre in North Kingstown for rehabilitation, rather than return immediately to her home. Joyce was admitted to Roberts Health Centre on May 9, 2012, at which time Shahzad Khurshid, M.D. (Dr. Khurshid) was assigned as Joyce's attending physician. Joyce's overall health at the time was poor, prompting another discussion among the family concerning Joyce's placement in hospice care. Michael and Joyce posited that there was no need for Joyce to receive hospice care, but rather, she should participate in physical therapy to strengthen her body; physical therapy would not be provided to her if she were receiving hospice care. Kurt and Yaffa, on the other hand, insisted that Joyce continue to receive hospice care. Dr. Khurshid placed Joyce in hospice care and physical therapy services were discontinued. Michael, however, continued to engage Joyce in physical therapy-type exercises himself.

Once again defying the odds, Joyce recovered from her grave condition by the summer of 2012 and expressed to Michael that she felt well and wanted to return to her home. Michael, Kurt and Yaffa discussed Joyce's request to return home; Michael promoted Joyce's return home and Kurt and Yaffa expressed their desire to have Joyce reside at Roberts Health Centre for the remainder of her life.

In September 2012, Kurt retained an attorney to assist in procuring Medicaid benefits on Joyce's behalf. See Joint Ex. 1. Kurt's then-counsel also prepared a quitclaim deed dated September 5, 2012, and recorded in the South Kingstown Land Evidence Records on September 19, 2012, through which Joyce and Kurt's interest in their property was conveyed to Kurt alone. Joint Ex. 2. Kurt executed the quitclaim deed as the "agent in fact for Joyce C. Willner, " purportedly pursuant to a Durable Power of Attorney recorded in the South Kingstown Land Evidence Records on September 11, 2012.[3] See id. at 1, 2.

On September 24, 2012, Michael filed a Petition for Limited Guardianship in the South Kingstown Probate Court seeking to become Joyce's guardian. That petition was supported by a decision making assessment tool (DMAT) prepared by Dr. Andrew S. Rosenzweig (Dr. Rosenzweig), a geriatric psychiatrist who examined Joyce on September 7, 2012. See Joint Ex. 3; Appellants' Ex. 1. In the DMAT dated September 21, 2012, Dr. Rosenzweig summarized his findings as they relate to Joyce's decision- making ability in the four designated areas as follows:

"(A) FINANCIAL MATTERS: Although patient is capable of simple arithmetical calculations, she requires assistance with major financial decisions as a result of her short-term memory deficits, fluctuating lucidity, and lack of knowledge of her personal affairs.
"(B) HEALTH CARE MATTERS: Patient's memory problems and fluctuating lucidity make it essential that she have assistance in major health care decisions, but she should be permitted and encouraged to contribute to these decisions in view of her strong convictions and opinions. "(C) RELATIONSHIPS: Patient is capable of choosing with whom to associate, and she consistently expresses a preference for her son to be her primary proxy decision-maker.
"(D) RESIDENTIAL MATTERS: Patient is capable of expressing a clear preference for returning home, and realizes she will need personal care assistance. Due to her dementia and fluctuating lucidity, she requires assistance to ensure her safety and personal care needs are met." Appellants' Ex. 1, at 5.

Dr. Rosenzweig opined[4] that Joyce required a guardian in financial matters and a limited guardian in health care and residential matters; no substitute decision-maker was needed with respect to relationships. Id. He also expressly stated that Joyce did "not appear to require nursing home level of care presently, as her care needs could likely be met in a less restrictive setting, i.e., at home with home health aides. She (when in a lucid interval) consistently expresses a preference to be in her home, and if there are resources available she should be permitted to have a trial at home or in a different but less restrictive setting." Id.

Over Kurt's objection, Michael was appointed temporary guardian on September 27, 2012, in accordance with § 33-15-10. The Probate Court also appointed a guardian ad litem, George J. Bauerle, Esq. (Bauerle), in accordance with § 33-15-7. Bauerle met with Joyce on October 15, 2012, at Roberts Health Centre. See Appellants' Ex. 3, at 1, 3-4.

On or about October 11, 2012, Dr. Rosenzweig met with Joyce for the second time and issued a second DMAT dated October 29, 2012. See Appellants' Ex. 2, at 2. This second DMAT took into consideration Joyce's medical records. See id. at 5. While his summary of Joyce's decision-making ability in each of the four areas was substantially the same as the September 21, 2012 DMAT, see id. at 5, cf. Appellants' Ex. 1, at 5, Dr. Rosenzweig's later opinion was that Joyce required a guardian in financial, health care and residential matters, and a limited guardian with respect to relationships. Appellants' Ex. 2, at 5. He also stated, "However, I continue to believe she could live in a less restrictive setting if resources permitted, i.e., at home with 24 hour supervision or in assisted living." Id.

In a report filed on November 29, 2012, Bauerle recommended that Michael be appointed permanent guardian and that Joyce be allowed to return to her home or to the home of Joyce and Kurt's neighbors, Marshall Feldman (Feldman) and Karla Steele (Steele), with round-the-clock supervision. See Appellants' Ex. 3. Bauerle's report is replete with references to the strained relationship and animosity between Kurt and Michael that developed in dealing with Joyce's treatment while first at South County Hospital and then at Roberts Health Centre. See id. After summarizing his interviews with Michael, Joyce, Kurt, Steele, Dr. Rosenzweig, various health care professionals at Roberts Health Centre, and Long Term Care Ombudsman Colleen Pendergast (Pendergast), Bauerle recommended the following:

"3. That Joyce Willner should be allowed to return home as long as financially feasible, which I believe would be possible, as long as Michael Willner provides that every other week 24 care and there is a 24/7 home health care aide. I do not see any medical issues to prevent this from occurring.
"4. That if in fact it is not possible for Joyce Willner to return to her home, I would suggest that she be placed in the home of Karla Steele, who I believe has indicated she would ensure the care for Mrs. Willner and place her back close to her home. I do not feel the 24/7 care would be necessary, but there would be a need for a home health aide.
"5. That if in fact it is impossible for the situation to be for her to return to her home, I think the parties should pursue an assisted living facility rather than a nursing home." Id. at 9.

The then-sitting South Kingstown Probate Court judge appointed Michael permanent guardian of the person and estate of Joyce on December 14, 2012. Joint Exs. 8, 9. The December 14, 2012 order specified Michael's obligations as permanent guardian and, in part, reflected the animosity between Kurt and Michael. See generally Joint Ex. 8. That order provided as follows:

"3. Michael Willner and Kurt Willner shall visit with the
Ward, Joyce C. Willner, and make every effort to visit when the other party is not present.
"3.a. Either Michael Willner or Kurt Willner may be permitted to take Joyce Willner from the facility where she presently reside[s] as long as it is approved by said facility for brief period[s] of time.
"4. With respect to the financial guardianship, he is limited to a review of financial assets and an investigation of same.
He has no present authority to expend funds.
"5. Joyce C. Willner's residency shall remain status quo until Michael Willner submits a proposed plan for her care to be approved by this Court." Id.

Following his appointment as permanent guardian, Michael engaged in further discussions with Kurt to address a health care plan for Joyce's care at home. Michael sought Kurt's cooperation in this regard, including a determination as to how a Home Health Care Plan could be funded. In January 2013, Michael met with Kurt and Joyce at Roberts Health Centre. During that meeting, Kurt maintained that he was unable to ensure Joyce's safety at home due to his advanced age and medical condition; Joyce expressed her desire to return home; and Michael promoted Joyce's return home with his bimonthly visits and a possible reverse mortgage of their home. A Home Health Care Plan dated January 3, 2013, was executed by Michael and Kurt, which provided for round-the-clock coverage by one or more paid home health care aids, weekly or more frequent visits by a private duty nurse to monitor Joyce's medical condition and administer medications, and the assistance of family and friends. Appellants' Ex. 5, at 3. Additionally, it provided that Joyce would live in a first-floor bedroom in which a hand rail and hospital bed would be installed. Id. at 4. Michael proposed to fund the plan from Joyce's current income—supplemented by borrowings collateralized by the equity in her home—along with Medicaid, which would cover substantially all of Joyce's home care expenses exceeding her monthly income. Id. at 5. On that same date, Michael and Kurt executed a Financial Arrangement through which they agreed that Kurt and Joyce's income and interest in their home would be split evenly and placed into separate accounts, with Kurt at all times having the right to pre-approve expenditures made from Joyce's account or otherwise be resolved by way of mediation. See Joint Ex. 12, at 2.

By February 2013, Kurt reneged on both agreements that he had executed. On February 13, 2013, Kurt executed a quitclaim deed to his home to his daughter, Yaffa, for one dollar and reserved for himself a life estate in the property. See Joint Ex. 11. That quitclaim deed was notarized by Kurt's then-counsel who had previously prepared the September 2012 quitclaim deed conveying all of Kurt and Joyce's interest in the property to Kurt alone. See id. at 2; cf. Joint Ex. 2. By April 2013, Kurt had engaged present counsel and Michael was faced with numerous efforts of counsel to reverse course on the previously-issued Probate Court orders. For instance, Michael was forced to file a motion to enforce the previous agreement that Kurt and Michael had reached relative to the Financial Arrangement. See Joint Ex. 12. Moreover, on April 22, 2013, Kurt executed a Removal Petition, which was filed with the South Kingstown Probate Court on April 25, 2013, and which sought Michael's removal as guardian based upon Michael's alleged failure to act in Joyce's best interest. Joint Ex. 14. It was clear by the spring of 2013 that the battle lines between Michael and Kurt had been redrawn and the animosity between father and son had returned.

In the spring of 2013, Michael, with the assistance of Homefront Health Care and its nurse manager, Patricia M. Miller, R.N. (Miller), created a second plan for Joyce's care that would allow for Joyce to stay at the home of neighbors Feldman and Steele in the event that Kurt continued to oppose Joyce's return home. See Joint Ex. 17. The plan included the services of a recommended CNA three days per week for two hours each day, with supervision of Joyce otherwise provided by Michael, Feldman and Steele. Id. at ¶ 10 and Ex. 1. Miller, who conducted an assessment of Joyce on May 8, 2103, noted that Joyce "ambulates well with the assistance of caregiver or walker, " is "[a]ble to maneuver onto and off of chair/toilet without difficulty, " and can "provide some of her own personal care with stand-by assistance." Id. at Ex. 1. Miller also concluded that, with minor modifications, the Feldman/Steele home would be a suitable residence for Joyce. Id. at Ex. 1. Feldman and Steele have been and continue to be supportive of Joyce's proposed placement in their home. Id. at Ex. 2, at 3.

Michael presented this proposed plan to the South Kingstown Probate Court by way of a Motion for Approval of Home Health Care Plan, filed by his present counsel, Jefferson Melish (Melish), on or about July 9, 2013. See id. On that same date, Michael moved for access to Joyce's income and assets, arguing that Joyce's interest in the marital property had been deeded away, that, because Michael was barred from representing himself as guardian, [5] he needed access to Joyce's funds to pay for counsel to defend any challenge to the Home Health Care Plan, and that Michael otherwise needed access to Joyce's income and assets in order to carry out his fiduciary responsibilities as guardian. Joint Ex. 18. Kurt, through counsel, opposed both motions. See Joint Exs. 19, 20.

The Probate Court denied both motions on July 25, 2013. Joint Ex. 22. Michael, as guardian, appealed the July 16 and July 25, 2013 orders to this Court on July 31, 2013, by filing a Claim of Appeal with the Probate Court on August 1, 2013; Reasons of Appeal filed by Appellant Estate of Joyce C. Willner in this Court on August 1, 2013, also reflect the appeal from the July 16 and July 25, 2013 orders. See Joint Ex. 26. In the meantime, Kurt's previously-filed Removal Petition, to which an objection was filed on or about July 9, ...

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