IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRUIT IN AND FOR SARASOTA COUNTY, FLORIDA PROBATE DIVISION IN RE: GUARDIANSHIP OF MARIE WINKELMAN

File No. 2013-GA-002754-NC File No. 2013-GA-002755-NC

An alleged incapacitated person

PETITION PURSUANT TO FLA. STAT. 4 709.2116 REQUESTING DENIAL BY THIS COURT OF AGREEMENT AND STIPULATION VIOLATIVE OF MARIE WINKELMAN'S DURABLE POWER OF ATTORNEY COME NOW Petitioners, Lawrence T. Newman, Pro Se, and Beverly R. Newman, Ed.D., Pro Se, and for their Petition Pursuant to Fla. Stat. § 709.2116 Requesting Denial by This Court of Agreement and Stipulation Violative of Marie Winkelman's Durable Power of Attorney, state as follows: 1.

Marie Lubowski Winkelman ("Marie Winkelman") executed a Durable

Power of Attorney ("DPOA") on April 27, 2009. In said DPOA, Marie Winkelman appointed Robert Szychowski ("Szychowski"), her stepson-in-law, as her agent. 2.

On November 22, 2013, Petitioners filed their "Petition Pursuant to Fla.

Stat. § 709.2116 for Enforcement of Marie Lubowski Winkelman's Durable Power of Attorney dated April 27, 2009, and for Removal of Robert Szychowski for Violations of Law and Fiduciary Duties" herein, which Petition is incorporated herein in full by reference. 3.

Pursuant to Fla. Stat. § 709.2116(2)(d), Petitioners Lawrence T. Newman,

Pro Se, and Beverly R. Newman, Pro Se, are interested persons in this cause as Petitioners are interested in the welfare of Marie Winkelman, the principal of the subject

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DPOA, and the Petitioners have a good faith belief that the Court's intervention is necessary in order to enforce the terms of the subject DPOA. 4.

To date, no determination has been made by this Court with respect to the

matter of Marie Winkelman's capacity. 5.

It is the understanding of the Petitioners through Marie Winkelman that on

November 25, 2013, Szychowski and Alina and Yoram Koren (collectively, the "Korens") entered into a mediated settlement agreement ("Agreement") which included a stipulation with respect to the incapacity hearing of Marie Winkelman ("Stipulation"), which Agreement and Stipulation were filed in the companion incapacity case herein, File No. 2013-GA-002754-NC. 6.

It is Petitioners' understanding through Marie Winkelman that said

Agreement and Stipulation were signed by Szychowski and his attorneys, by the Korens and their attorney, and by Barry Spivey, the attorney for Marie Winkelman.

It is

Petitioners' understanding through Marie Winkelman that Marie Wiinkelman did not sign either the Agreement or the Stipulation, and that she does not agree with many of the terms of the Stipulation. 7.

It is Petitioners' understanding through Marie Winkelman that Marie

Winkelman was not present at the mediation and did not participate in the mediation other than to answer a single telephone call by a person unidentified to the Petitioners by Marie Winkelman. Marie Winkelman was not present at the mediation because she was not allowed by her legal counsel, Barry Spivey, to bring a person of her choice, specifically, Petitioner Beverly R. Newman, to the mediation to assist her as needed and to keep her company during the mediation session.

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8.

It is Petitioners' understanding through Marie Winkelman that the

Stipulation's terms include a stipulation by the signatories that Marie Winkelman is

incapacitated. Marie Winkelman has stated to Petitioners on many occasions that she is not incapacitated, nor is it the belief of the Petitioners that Marie Winkelman is incapacitated. See Capacity Evaluation of Marie Lubowski Winkelman prepared by Petitioner Beverly R. Newman, Ed.D., attached to Petitioners' November 22, 2013, Petition as Exhibit 2 thereto. 9.

It is Petitioners' understanding through Marie Winkelman that no

witnesses were called by her legal counsel, Barry Spivey, during the uncompleted incapacity hearing which took place on November 4, 2013. 10.

It is Petitioners' understanding through Marie Winkelman that the

Stipulation includes a stipulation that no witnesses will be called by her legal counsel, Barry Spivey, during any continuation of the incapacity hearing. 11.

Fla. Stat. § 744.331(5), with respect to incapacity hearings, provides in

pertinent part (emphasis added): (a) .... The adjudicators hearing must be conducted ... in a manner consistent with due process.

(c) In the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence. 12.

It is impossible that Marie Winkelman's adjudicatory hearing with respect

to the issue of her capacity could be conducted "in a manner consistent with due process," or that any purported incapacity of Marie Winkelman could "be established by clear and convincing evidence," when substantive evidence exists that Marie Winkelman

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is not incapacitated; yet her legal counsel refuses to put on mu evidence or call any

witnesses in the incapacity hearing. 13.

It is Petitioners' understanding through Marie Winkelman that the

Stipulation contains terms which designate the DPOA as an alternative to the appointment of a guardian of the property for Marie Winkelman, but that the DPOA is not designated in the Stipulation as an alternative to a guardian of the person for Marie Winkelman. In fact, Paragraph 43 of Marie Winkelman's DPOA provides as follows (emphasis added): PARAGRAPH HEADINGS. Paragraph headings shall not be construed to limit or restrict the powers granted here, but may be used to expand them. It is my intent that My Agent and attorneyin-fact have the broadest powers possible to act for me while I have the legal capacity to act and also while I am legally incapacitated to act, so as to avoid the necessity of a guardianship in case of my incapacity. 14.

As discussed in detail in Petitioners' November 22, 2013, Petition, the

DPOA is the least restrictive alternative to guardianship; any type of guardianship is inappropriate with respect to Marie Winkelman due to the existence of her DPOA; and Szychowski should be replaced as Agent and attorney-in-fact pursuant to the DPOA due to his multiple violations of law and fiduciary duties owed to Marie Winkelman. 15.

It is Petitioners' understanding through Marie Winkelman that the

Stipulation contains multiple terms regarding her Marie Winkelman Trust, in particular stipulating that her Trust, which she created as revocable, be henceforth irrevocable. Such a stipulation violates Marie Winkelman's wishes as expressed to Petitioners and to her legal counsel Barry Spivey, that her Trust be amended to remove Corrine Szychowski (Robert Szychowski's wife) and Diane Winkelman as Trust beneficiaries.

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16.

Furthermore, property in trust, such as the property contained in the Marie

Winkelman Trust, cannot be part of a guardianship estate; accordingly, it is respectfully submitted that this Court has no power to amend the terms of the Marie Winkelman Trust within any Order concerning capacity or guardianship relative to Marie Winkelman. See Beekhuis v. Morris, 89 So.3d 1114 (Fla.App. 4 Dist. 2012), a copy of which is attached hereto as Exhibit 1. 17.

Finally, it is Petitioners' understanding through Marie Winkelman that

although the Stipulation calls for the parties mutual general releases in the form of a sample release attached to the Stipulation, she has never been provided with a copy of such sample release, rendering the Stipulation an unenforceable incomplete document. 18.

For the reasons stated herein, the Agreement and Stipulation do not

comport with the terms of Marie Winkelman's DPOA and permit Robert Szychowski to remain as Marie Winkelman's Agent and attorney-in-fact when he has violated his fiduciary duties pursuant to the subject DPOA and Florida law; and therefore the Agreement and Stipulation should be disregarded by this Court and not adopted in full or in part by this Court with respect to the issue of Marie Winkelman's capacity and the other aforementioned issues. 19.

The Petitioners request that this Court hear and determine both of

Petitioners' Petitions herein before taking any action on the Agreement and Stipulation. WHEREFORE, Petitioners Lawrence T. Newman, Pro Se, and Beverly R. Newman, Ed.D., Pro Se, respectfully request that this Court disregard and not adopt in

full or in part the Agreement and Stipulation with respect to the issue of Marie Winkelman's capacity, because said Agreement and Stipulation do not comport with the

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terms of Marie Winkelman's DPOA and permit Robert Szychowski to remain as Marie

Winkelman's Agent and attorney-in-fact when he has violated his fiduciary duties pursuant to the subject DPOA and Florida law. Respectfully submitted,

wrence T. Newman, Pro Se 713 South Orange Avenue, Suite 105 Sarasota, FL 34236 (941) 313-9239 [email protected]

Beverly R. New an, d.D., Pri Se 713 South Orange Avenue, Suite 105 Sarasota, FL 34236 (941) 313-9239 [email protected] CERTIFICATE OF SERVICE I hereby certify that the foregoing document has been served upon the following by electronic mail, this 27 th day of November, 2013: Barry F. Spivey, Esq., Spivey & Fallon, P.A., 1515 Ringling Blvd., Suite 885, Sarasota, FL 34236, [email protected] and [email protected] , Attorney for Marie Winkelman; Rebecca J. Proctor, Esq., 240 South Pineapple Avenue, 6th Floor, Sarasota, FL 34230, [email protected] , Attorney for Dr. Yoram Koren and AlMa Koren; Kimberly A. Bald, Esq., Harlee & Bald, P.A., 202 Old Main Street, Bradenton, FL 34205, [email protected] and [email protected] , and Christopher A. Likens, Esq., 1800 Second Street, Suite 971, Sarasota, FL 34236, [email protected] , Attorneys for Robert Szychowski.

ence T. Newman, Pro Se

Beverly R. New an, Ed.D., Pr

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Page 1114 89 So.3d 1114 (Fla.App. 4 Dist. 2012) 37 Fla. L. Weekly D1386 Marcia BEEKHUIS, as Trustee of Irene Morris Revocable Trust, Appellant, v. Steven MORRIS, Appellee. No. 4D12-195. Florida Court of Appeal, Fourth District. June 13,2012 Page 1115

Howard K. Helms of Littman, Sherlock & Heims, P.A., Stuart, for appellant. James P. Covey, Vero Beach, for appellee. DAMOORGIAN, J. Marcia Beekhuis appeals the probate court's nonfinal " Order Granting Emergency Motion to Appoint Court Monitor and to Enjoin Trustee from Sale of Ward's Home and Request for Immediate Injunction." Beekhuis argues, among other things, that the probate court did not have jurisdiction over the trust assets or her as trustee of the Irene Morris Revocable Trust. We agree and reverse. Irene Morris is the mother of Appellant, Marcia Beekhuis, and Appellee, Steven Morris. Irene Morris created a trust which provided that Morris and her daughter would serve as co-trustees. Under the terms of the trust, if two medical doctors opined that a trustee was legally disabled, then that trustee would be deemed incapacitated and the other co-trustee would assume the duties of the incapacitated trustee. In 2010, Beekhuis, individually and not in her capacity as co-trustee, filed a petition to determine whether her mother was incapacitated and to appoint a plenary guardian. The petition did not refer to the trust. Steven Morris filed a counter-petition. Ultimately, the probate court entered an " Order Appointing Plenary Guardian of Person and Property" and issued " Letters of Plenary Guardianship of the Person and Property" naming Steven Morris as the guardian. Soon thereafter, Steven Morris filed several motions in the guardianship proceeding, in which he sought to have his sister removed as trustee of his mother's trust

and to compel the trustee to relinquish assets. In response, Beekhuis made limited appearances only in her individual capacity, arguing that the probate court lacked jurisdiction over the trustee and the trust property in the guardianship proceeding. Beekhuis participated in the guardianship proceeding only in order to remove Steven Morris as guardian and engage in discovery. Ultimately, Morris filed an " Emergency Motion to Appoint Court Monitor and to Enjoin Trustee from Sale of Ward's Home and Request for Immediate Injunction." Without notice or hearing, the probate court entered an ex parte order prohibiting the sale of Irene Morris' homestead Page 1116

and directed Beekhuis, as trustee, to convey the property from the trust to Steven Morris. Beekhuis sought reconsideration, or in the alternative, to dissolve the injunction. The probate court never ruled on her motion. This appeal follows. Beekhuis argues that the probate court did not have jurisdiction over the trust or its trustee because she " filed no pleadings and sought no relief in her capacity as [t]rustee and did not subject either herself or the trust to the jurisdiction of the probate court." See Chaffin v. Overstreet, 982 So.2d 11, 14 (Fla. 5th DCA 2008) (explaining that appearing before the probate court in one capacity does not subject that party in a separate capacity to the jurisdiction of the court); see also Mfrs. Nat. Bank of Detroit v. Moons, 659 So.2d 474, 475 (Fla. 4th DCA 1995) (holding that the probate court did not have jurisdiction over the trustees because there was no service of process on trustees and the trustees did not voluntarily submit to the jurisdiction of the court).[1] We conclude that it was error for the probate court to assert jurisdiction over the trust property and Beekhuis, in her capacity as trustee, when the original pleadings never raised any claim over the trust or its property, and Beekhuis continually asserted that the court lacked jurisdiction over the trust and trustee. See Chaffin, 982 So.2d at 14. Our holding renders moot the other issues raised on appeal. Reversed.

WARNER and CONNER, JJ., concur.

EXHIBIT

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Notes: [1] In addition to the issue addressed in this opinion, Beekhuis argued that the ex parte order failed to comply with section 744.1075, Florida Statutes (2011) and rule

5.720, Florida Probate Rules. We find merit to her claims, but need not address them in light of the probate court's lack of jurisdiction.