POST-TRIAL MEMORANDUM OF THE APPELLANT/INTERVENOR RHODE ISLAND DISABILITY LAW CENTER, INC.

STATE OF RHODE ISLAND WASHINGTON, SC. SUPERIOR COURT In Re Estate of JOYCE C. WILLNER C.A. No. WP13-0400 POST-TRIAL MEMORANDUM OF THE APPELLANT/INTERVENOR RHODE ISLAND DISABILITY LAW CENTER, INC. Introduction This case raises important issues regarding the rights of wards under Rhode Island s Limited Guardianship and Guardianship of Adults statute, including the extent to which a ward with the support of her guardian can effectuate her choice to live in the community. It also raises constitutional questions regarding a ward s right to notice and right to challenge confinement against her will. The parties are submitting post-trial memoranda as their closing arguments. The appellant/intervenor incorporates arguments made within its Pre-Trial Memorandum for that purpose as well. Argument 1. Public Policy and law promote Joyce Willner s right to live in the community and living in the community is consistent with her best interests. As described within the appellant/intervenor s Pre-Trial Memorandum, the civil and human rights of individuals with disabilities have changed significantly over the last several decades. The paternalistic approach to serving individuals with disabilities has been replaced with laws and policy that maximize individual autonomy, and promote integration into the mainstream of life. These changes have been reflected in Rhode Island s guardianship law, in court decisions establishing a substituted judgment standard for medical decision-making, and in 1

state and federal laws and policies that require people with disabilities to be served in the most integrated setting. These changes present a less subjective framework for judging what is best for any individual with a disability a framework that focusses on individual choice and the right to be integrated. In their Pre-Trial Memorandum, appellees cite to best interest of the child decisions as applicable to this matter, but Joyce Willner does not have the legal status of a child. In interpreting the responsibilities of state and local governments under the Americans with Disabilities Act, the U.S. Supreme Court articulated why unjustified institutional isolation is a form of disability discrimination. Olmstead v. L.C., 527 U.S. 581, 597-603, 119 S.Ct. 2176 2185-88 (1999). The Court noted the substantial harm that results from institutionalization: Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts and cultural enrichment. Id at 600-02, 119 S.Ct. at 2187. Joyce Willner has experienced the harms associated with institutionalization, as identified in Olmstead. Assumptions have been made that she no longer needs or perhaps deserves to have access to her home and assets, and to her friends and family. Her opportunities to enjoy community activities and social contacts have been diminished. As a person with a disability, Alzheimer s dementia, Joyce Willner, has a right to have her desire to live in more integrated setting than a nursing home effectuated. That she has such a desire in uncontroverted. 2

a. The evidence of Joyce Willner s desire to live in the community is uncontroverted. Testimony and records admitted as full exhibits this proceeding, document that Joyce Willner consistently expresses her preference to return home from Roberts Health Centre. She has expressed this desire to Dr. Rosenzweig, MD, MPH, to her guardian ad litem (GAL), George J. Bauerle, III, Esq., to her neighbors and good friends -- Karla Steele and Marshall Feldman, to Michael Willner, and to nursing facility staff. Dr. Rosenzweig observed that Joyce Willner made consistent statements regarding her desire to return home, and that she expressed this preference to a stronger degree than most people with dementia that I have seen. (Appellants Exhibit 4, p. 24, lines 14-19). In response to questioning by Kurt Willner s counsel, Dr. Rosenzweig further explained the basis for his conclusion: Question: Answer: And you indicated, Doctor, that a high percentage of people in her situation would all say that they want to go home? Well, yes, but again, not in the same way that she does. She does say things that are that seem to convey that it means a lot to her to be back in her home. You know, she has she talked about Indian Lake, and she talked about how she loves it there, she feels comfortable there. You know, she said I had a quote, I think, from my first visit where she said she said, I like it better than here. Of course I would want to go home. It is my home. So yeah, I mean, I think my I think in terms of her own cognitive abilities and decision-making capacity, you know, I still believe she is incapable of making that decision herself. But I think the spirit of the whole assessment was that you know, my training is that 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 that, you know, in Joyce s case a nursing home is not the least restrictive environment to make that happen. Appellants Exhibit 4, p. 26 lines 21-25, and p. 27, lines 1-19. 1 1 Dr. Rosenzweig testified regarding his credentials as a psychiatrist, board certified in both adult and geriatric psychiatry, and his then current positions as Chief Clinical Officer for MedOptions since 2006, and at the Brown University, Warren Alpert Medical School. (Appellants Exhibit 4, pp. 3-4). 3

Her GAL, George Bauerle, III, Esq., found Joyce was clear in her desire to return home and was lucid in our discussions. (Appellants Exhibit 3, p.4). The GAL also reported that Kurt Willner stated to him, that Joyce Willner repeat[s] to him that she wants to go home. (Appellants Exhibit 3, p. 5). In their affidavit in support of Michael Willner s home care plan, Joyce s neighbors and friends, Marshall Feldman and Karla Steele related that Joyce, without solicitation, would bring up the subject of her desire to go home. (See page 2 of the Affidavit of Marshall Feldman and Karla Steele, attached to Motion for Approval of Home Health Care Plan, Undisputed Exhibit 17). Joyce Willner desires to return home were captured in the videos made by Michael Willner (Appellants Exhibits 10 a, b, c, d, and e. Colleen Pendergast, an employee of the Alliance for Better Long Term Care, acknowledged that Joyce expressed a desire to return home (Transcript 4/15/14, p. 131, line 13). Joyce Willner s desire to leave the nursing facility and return home to the community persists despite efforts to limit her voice and her associations with those who support her desire. At the request of Kurt Willner as power of attorney, the Alliance for Better Long Term Care developed Guidelines for Visitation of Joyce Willner by Michael Willner dated September 24, 2012, which prohibited any discussion between Joyce Willner and her son regarding her desire to return home, and limited the hours when Joyce Willner could visit with her son. (Appellees Exhibit F, and Transcript 4/15/14, p. 128, line 18). As successor guardian, Yaffa Willner further prohibited Joyce s friends and neighbors, Marshall Feldman and Carla Steele from any visitation at all. (Undisputed Exhibit 27, and Transcript 4/14/14 AM, p. 43, lines 19-22). 4

After Michael Willner was removed as her guardian, and after her neighbors were banned from visiting, Joyce continued to express her desire to return home to nursing facility staff. See Undisputed Exhibit 38, 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). The appellees did not dispute the evidence of Joyce Willner s desire to return to living in the community. They only offered evidence that Joyce Willner s medical needs were being met by her current nursing home residence. b. Joyce Willner s needs can be met in the community, and she experiences harm as a result of her continued confinement in a nursing facility. There is compelling and substantial evidence that Joyce Willner s needs can be met in the community. Although institutional nursing facility care initially may have been necessary in order for Joyce Willner to recover from the acute illness that resulted in her hospitalization, it is no longer necessary. In his deposition, Dr. Rosenzweig noted: Joyce doesn t require nursing home level of care there is a continuum of care for the elderly with dementia most of the five and a half million people with dementia in this country, far and away most them live at home, you know, with varying levels of help from usually family and professional caregivers ranging from low-paid private-duty aids all the way up to skilled nurses. And so the actual percentage of people with dementia who are in a nursing home is pretty low throughout the country. (Appellants Exhibit 4, p 41, lines 16-25, p. 42 lines 1-2). 5

After concluding his investigation, the GAL, George Bauerle, III, Esq., recommended [t]hat Joyce Willner should be allowed to return home as long as financially feasible, which I believe would be possible (Appellants Exhibit 3, p. 9). In furtherance of these recommendations, Michael Willner created several plans for Joyce Willner s return to live in the community with appropriate supports. The first was created shortly after the permanent guardianship order of December 14, 2012. (Undisputed Exhibit 8). Michael Willner made the plan in consultation with Kurt Willner. The plan covered the details as well as the costs of Joyce Willner s care at home. (Appellants Exhibit 5, 4/14/14 Transcript pp. 81-83). Although initially in agreement with the plan, Kurt Willner later changed his mind. (Transcript 4/14/14 AM, p. 83, lines 3-5). Kurt Willner objected to the motion Michael Willner filed in Probate Court for implementation of this home care plan. (Undisputed Exhibits 12 and 13). In the spring of 2013 Michael Willner created another plan for Joyce Willner s care with the help of a home care agency and nurse. (Transcript 4/14/14 AM, pp. 83, lines 19-25). That plan introduced an Option B for Joyce Willner to stay at the home of her friends and neighbors Marshall Feldman and Karla Steele, in the event that Kurt continued to oppose Joyce Willner s return home. (Transcript 4/14/14 AM, pp. 84, lines 8-11, and 16-23). In May, Michael filed his second plan with the Probate Court. That plan included an hour by hour description of individuals providing 24/7 supervision for Joyce, with a breakdown of expenses and payment for those expenses. (Transcript 4/15/14, p. 62, lines 23-25, and p. 63 lines 1-10). Michael Willner s motions to approve that plan and access his mother s assets were again objected to by Kurt Willner. (Undisputed Exhibits 19, 20). That second plan was denied by the Probate Court and 6

his pleadings relating thereto were stricken. (Transcript 4/15/14 PM, p. 64, lines 5-10, Undisputed Exhibit 21). Michael subsequently sought Probate Court approval for a third home care plan, (Transcript 4/15/14, p. 64, lines 8-18) along with authority to access his mother assets. (Undisputed Exhibits 17 and 18). The home care plan incorporated the services of an experienced CNA, provided for 24/7 supervision of Joyce by Michael and her friends/neighbors, and anticipated services from a visiting nurse program. (See attachments to Undisputed Exhibit 17). Approval for that plan was also denied by the Probate Court (Undisputed Exhibit 22). This denial was then appealed to this Court. To help pay for Joyce s care at home or in her neighbors home, Michael Willner pursued funding through Rhode Island Medicaid home and community-based services. (4/15/14 Transcript pp. 68-73). The state Medicaid agency denied his access to one program, but advised that Joyce Willner was eligible to apply for another program, the Personal Choice program. (Undisputed Exhibit 33). Michael Willner applied for the Personal Choice program, and if necessary will re-apply for Personal Choice again, should he be given the ability to bring Joyce Willner home. (4/15/14 Transcript p. 72, lines 11-13, and p.73, lines 6-16). Although Joyce has been in the nursing facility for almost two years, recent medical records from Roberts Health Centre indicate Joyce is not experiencing any significant decline due to dementia. She has a stable mood and no cognitive deterioration. (Undisputed Exhibit 38, 11/18/2103 evaluation notes of Therese Kleinkopf and Medication Flow Sheet, entry for start date10/13/2013). Consistent with these reports, Yaffa Willner indicated in her January 15, 2014 Annual Status Report to the Probate Court as guardian, that Joyce Willner s condition remains stable. (Undisputed Exhibit 28). 7

In addition to being unnecessary, Joyce Willner s continued confinement in a nursing facility has caused her harm. She has been isolated from the community and her friends, denied the opportunity to return to her beloved home, or even to visit there, and deprived of her property rights. Subsequent to her nursing home admission, Joyce lost her interest in her marital home. A quitclaim deed regarding the property at 21 Tomahawk Trail, South Kingstown, RI from Kurt Willner 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). This transaction was not necessary for the purpose of Joyce s Medicaid eligibility, as the value of the home would not be counted as a resource if Joyce planned on returning home, or if Kurt continued to reside in the marital home. 2 On or about February 14, 2013, Kurt Willner transferred the property to Yaffa Willner for one Dollar, and reserved a life estate interest in the property to himself. (Undisputed Statement 20 and Undisputed Exhibit 11). The appellees joint action created a greater barrier to Joyce s ability to return home, by limiting her ability to access the equity value in her home to support community care. The 2013 tax assessed value of the property at 21 Tomahawk Trail, South Wakefield, RI is $358, 900.00. (Undisputed Fact 42). Joyce Willner s ability to access friends, to access the community and to even speak about her desires have been restricted during the period of time when Michael was not her 2 See R.I. Admin. Code 39-3:0382.10.05.20. The home may be excluded during an applicant's temporary absence (e.g., due to hospitalization or nursing home care) when both of the following conditions are met: The applicant intends to return to the home; and The home is located in Rhode Island... If a community spouse or a dependent child continues to live in the home during the applicant's temporary absence, the value of the home is not counted as a resource regardless of whether the applicant has expressed an intent to return to the home. 8

guardian. In September 2012 at the request of Kurt Willner, the Alliance for Better Long Term Care issued Guidelines for Visitation of Joyce Willner by Michael Willner (Appellees Exhibit F), which limited the hours when Joyce could visit with her son, and effectively prohibited Joyce from speaking with her son about returning home. (04/15/14 Transcript, p. 128, lines 18-25). Kurt Willner also would not allow Joyce to make visits to her home from the nursing home. (04/15/14 Transcript, p. 55, lines 5-8). As successor guardian, Yaffa Willner prohibited Joyce s friends and neighbors, Marshall Feldman and Carla Steele from any visitation at all. (Undisputed Exhibit 27, and 4/14/14 Transcript AM, p. 43, lines 19-22). As Marshall Feldman testified, he and his wife had been like family to Joyce, celebrating holidays and other occasions with Joyce s entire family, visiting weekly and more often when Joyce was in the hospital and in the nursing home, and hosting her visits in the community while Joyce remained in the nursing facility. (4/14/14 Transcript AM, p.25, lines 2-18; p. 28, lines 13-25; p. 33, lines 3-17; p. 35, lines 5-23; Appellants Exhibits 9a- 9g). These restrictions were made despite federal and state nursing home resident rights regulations, which protect Joyce s right to have visitors of her choice. Visits from immediate family members are prioritized, and by state regulation, Joyce is entitled to designate up to five unrelated persons as family members for the purpose of visitation. See 42 C.F.R. 483.10(j)((1)(vii) and (viii), and RI Admin. Code 31-4-8:19.13. 2. The appellees have failed to prove grounds for removal of Michael Willner. 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 9

set forth in court order or guardianship law, 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. a. No statutory grounds for removal of Michael Willner as guardian have been proven. The appellees proffered a litany of complaints regarding Michael Willner s actions, but the evidence presented did not support a statutory ground for removing him as Joyce Willner s guardian. Although Michael Willner denied doing so, (4/15/14 Transcript p. 67, lines 7-24), the appellees inferred Michael coached his mother to obtain an answer he wanted before videotaping her (4/14/14 Transcript PM, p. 33, lines 2-10). The appellees had pursued similar questioning with Dr. Rosenzweig, who disagreed with that characterization of Michael s efforts: my reaction when I viewed the video was that, as with all things in my field, everything has to be viewed with a healthy does of skepticism and doubt, and need to see for myself the patient s response to similar questions from me And so my feeling when I saw the videos was not that Michael was nefariously trying to get his mother to say things that he wanted her to say but that it was a way to show what he believed to be the case. (Appellants 4, p. 18, lines 15-25, and p. 19, lines 1-2).) The appellees asserted that Michael s changing of Joyce Willner s advance directive was contrary to her wishes. Michael explained that he changed the directive so that the nursing home would take Joyce to the hospital if she had a respiratory problem. (4/14/14 Transcript PM, p. 42, lines 12-18), (4/15/15 Transcript p. 77, lines 1-20). 10

The appellees complained that Michael Willner took a month to conduct research to determine whether his mother should pursue the services of a medical blood specialist concerning her anemia. (4/14/14 Transcript PM, p. 45, lines 5-19). Ultimately, after concluding his research, Michael, Joyce, and Kurt Willner visited the specialist together and agreed that no further treatment for Joyce was appropriate. (4/15/14 Transcript, p. 79, lines 16-25, p.80, lines 1-10). The appellees cited one instance when Michael Willner took his mother on an outing from the nursing home when she had a cold. (4/14/14 Transcript PM, p. 47, lines16-25, p. 48, lines 1-4). The outing occurred after Michael Willner had a discussion with nursing facility staff, and no one objected to Joyce going out at that time (4/15/14 Transcript, p. 57, lines7-20). The appellees cited another instance of Michael posting a document from South County Hospital on his website, that had already been made public in the Probate Court public record. (4/14/14 Transcript PM, p. 63-64). The appellees were critical of Michael s participation in a Petition for Divorce filed on behalf of Joyce Willner. He indicated he assisted with the divorce because he wanted to help Joyce get her access to her home, as well as her assets, so that he could pay for her home care costs and legal fees. (4/15/14 Transcript p. 83, lines15-25, p. 84, lines 1-6). b. The appellees have not demonstrated that living in the community is contrary to Joyce Willner s best interests. 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 Willner to live in her home or her neighbors are in her best interest, especially when viewed in the light of current law and policy. As referenced above, there is compelling and substantial 11

evidence that Joyce Willner s needs can be met in the community. The appellees have not presented evidence that living in the community is contrary to Joyce Willner s best interests. Joyce Willner s attending physician at Roberts Health Centre, Dr.Shahzad Khurshid, MD, an internist, offered testimony regarding Joyce s medical needs. (4/15/14 Transcript, p. 7, lines 14-22). He indicated that Joyce had medically improved from the time of her initial admission to the nursing facility, right after hospitalization, and attributed that recovery in part to Joyce s own strength. (4/15/14 Transcript, p. 9, lines 2-12). Dr. Khurshid explained that the progressive nature of the dementia is demonstrated through subtle changes that can appear over time. (4/15/14 Transcript, p. 11 lines 1-8). Not surprisingly, he indicated that Joyce Willner needs long-term nursing care, and that she is currently receiving such care at Roberts Health Care Centre. He did not think that Joyce could get comparable services at home (4/15/14 Transcript, p. 14 lines 8-18) but was uncertain whether that was true for all of the services (4/15/14 Transcript, p. 20, lines 4-6). He had never advised Michael Willner that Joyce Willner could not go home. (4/15/14 Transcript p. 14, lines19-25 and p. 15, lines 1-4). Although he indicated generally that Joyce had nursing and other professional services available to her at Roberts Health Centre, Dr. Khurshid could not specify the ratio of available staff to patients. (4/15/14 Transcript, p. 38, lines 7-13). He acknowledged that Joyce did not have 1:1 attendance by aids overnight. (4/15/14 Transcript, p. 12, lines 6-9). Dr. Khurshid testified regarding his orders for Joyce Willner, and he was queried at length about physician orders that had been discontinued, such as Levaquin tablets (Transcript, p. 31, lines 3-11), Duoneb (See Exhibit 38, Physician Order Report, p.10 of 12 indicating that medication had been given for 2 days in May 2013), and a PIC line that was discontinued the day Joyce was admitted to the nursing facility (4/15/14 Transcript, p.33, line 10, and Exhibit 38, 12

Physician Order Report, p. 11 of 12). He indicated Joyce was being treated for a bed sore she had developed while at the nursing home (4/15/14 Transcript, p. 35, lines 1-8). Prior to becoming guardian, Michael Willner contacted the Alliance for Better Long- Term Care, seeking that agency s assistance in advocating for Joyce Willner s return home. (4/14/14 Transcript p. 40, lines21-23, Appellees Exhibit N). He sought the Alliance s help in mediating the family dispute regarding Joyce, and helping Joyce make an informed decision about where she wanted to live. (Appellees Exhibit N). That mediation request was declined by Colleen Pendergast, an employee of the Alliance. (4/15/14 Transcript p. 126, lines 19-23.) Michael Willner also asked that the Alliance follow up with Marshall Feldman and Karla Steele, but Ms. Pendergast similarly declined to do so. (4/15/14 Transcript, p. 126 lines 14-18). Instead, Ms. Pendergast s investigation focused on meeting with Kurt Willner and Joyce Willner. (4/15/14 Transcript, p. 100, lines 17-25), speaking to nursing facility staff and reviewing nursing facility records. She completed her review prior to the Probate Court s guardianship order. (4/15/14 Transcript, p. 102, lines 3-5; p. 106, lines 1-4). Ms. Pendergast offered a recommendation that Joyce Willner was best cared for in a health care facility. As a reason for that recommendation, Ms. Pendergast cited Joyce s inability to understand the negative consequences that could follow her returning home. (4/15/14 Transcript, p. 124, lines 19-25). If it were necessary for individuals with disabilities to be able to weigh all the risks and benefits of community living on their own, then many individuals with cognitive challenges including intellectual disability, head injury and dementia, would never be able to leave institutional settings including nursing homes. 3 3 By policy and practice, this is not the path that Rhode Island has chosen. Rhode Island closed the Ladd Center in the 1980 s, with the result that Rhode Island has no state institutions for people with intellectual disabilities. Rhode Island has also reformed its Medicaid law and policy 13

3. The identities of the real parties in interest are clear, and this Court is not deprived of jurisdiction. On the morning of trial, appellees made a Motion for Judgment on the Pleadings pursuant to Rule 12(c), alleging that this Court lacked jurisdiction because the appeal was not perfected in accordance with R.I. Gen. Laws 33-23-1. The appellees subsequently made an oral Rule 52 motion seeking dismissal on the same grounds. The appellees motion appears to be based on the assertion that Michael Willner, Joyce Willner and the Estate of Joyce Willner are not real parties in interest under Rule 17, even though those parties, through counsel or individually, had appeared in the Probate Court proceedings below. The purpose of the real party in interest rule is to protect the defendant against a subsequent action by the party actually entitled to recover, and to ensure that the judgment will have its proper effect as res judicata. Esquire Swimming Pool Products, Inc. v. Pittman, 332 A.2d 128, 130 (R.I. 1975). The appellees have not identified in what specific way they are confused about the identity of the parties, or in what way this Court s judgment will not have its proper res judicata effect. They challenge the ability of a case to be brought in the name of an estate, but cite no law to the contrary. Ironically, the case they rely on in their motion, Griggs v. Estate of Glenn E. Griggs, 845 A. 2d 1006 (R.I. 2004), names a guardianship estate as party. A real party in interest assertion is similar to an affirmative defense and should be raised, if not in the pleadings, as early as possible Esquire Swimming Pool Products, Inc. at 130. Here there was no reason for the appellees delay in making the assertion, which in any event appears to be groundless. to provide more humane and cost-effective services to individuals who would otherwise require nursing facility care. See pp. 13-14 of Appellant/Intervenor s Pre-Trial Memorandum. 14

No motion to dismiss should be granted pursuant to a real party in interest challenge, until the challenged party is given the opportunity to answer the objection or substitute the proper party. Calenda v. Allstate Insurance Co., 518 A.2d 624, 627 (R.I. 1986). In the absence of any explanation from the appellees regarding any adverse impact on potential judgment in this matter resulting from the naming of the parties, no such clarification is possible or necessary. The appellees erroneously infer that dismissal pursuant to a real party in interest challenge has the same impact as dismissal due to the failure to timely file an appeal under R.I. Gen. Laws 33-23-1. As authority for their dismissal motion, appellees cite to Griggs v. Estate of Glenn E. Griggs, 845 A. 2d 1006 (R.I. 2004), where the Rhode Island Supreme Court dismissed a guardianship appeal on the narrow grounds of failure to file a complete record within the time period required by R.I. Gen. Laws 33-23-1(a). No such grounds exist in this case, as the record was timely filed and agreed to by the parties. Challenges involving timeliness of filing the record in probate appeals in accordance with R.I. Gen. Laws 33-23-1(a) are considered statute of limitations questions. See Estate of Brian Hart v. Cheryl LeBlanc, 853 A. 2d 1217, 1218 (R.I. 2004). However, the granting of a real party in interest challenge, does not result in a dismissal on the merits, and an action may later be brought on the same claim. Calenda, 518 A.2d at 627. Amendments allowing substitution of real party in interests can also be made even after a statute of limitations period has expired. Narragansett Milling Company v. Salisbury, 166 A. 502, 504 (R.I. 1933). Because the appellees motion has no basis in fact or law, it should be denied. Conclusion Based on the record and evidence presented at trial, the appellant/intervenor on behalf of Joyce Willner, seeks an order from this Court: 15

1 reversing the orders of the Probate Court that removed Michael Willner as guardian and prevented his implementation of plans to provide services to Joyce Willner at home or at another location in the community; and 2 granting Michael Willner full authority over the person and estate of Joyce Willner in order to effectuate her desire to live at home or at another location in the community. Respectfully submitted, Dated: 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 Certificate of Service I certify a copy of the foregoing Post-Trial Memorandum of the Rhode Island Disability Law Center, Inc. was mailed on April, 2014 to 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 Willner, 11521 Potomac Rd., Lorton, VA 22079-4264 16