Mental Competence and Money are at the heart of countless lawsuits in the US today. While Sumner Redstone's case involves considerably more money and media exposure than most, it bears strong resemblance to many of my past and present cases in the SF East Bay. In many instances, legal action can help to protect elderly family members who suffer from Alzheimer's or dementia, as Mr. Redstone appears to. In other cases, however, families involved in elder abuse lawsuits can lose sight of the elder's best interest. Instead, money, property, a desire to win, or hurt feelings become the primary motivator(s) behind their actions. When the parties involved are primarily concerned with their own desires, is the elder person essentially being used as a pawn to further their family member's interests? And what role does their attorney play?
In the case of Sumner Redstone, longtime companion Manuela Herzer and daughter Shari Redstone had a lot to lose, and a lot to gain, from taking legal action. For those of you who are not caught up to speed on the details of billionaire media mogul Sumner Redstone's legal battle, here is a brief overview:
In October of last year, Manuela Herzer, former girlfriend turned caregiver/companion of Sumner Redstone returned to his home to find a host of Shari Redstone's lawyers who told her to leave immediately - she was no longer welcome. According to Ms. Herzer and others familiar with Mr. Redstone, Manuela had known Mr. Redstone since 1999. After declining a marriage proposal from him in 2000, they eventually broke off their courtship but remained close. Over the past 16 years, she has frequently been sited at events, premiers, and other social engagements with Mr. Redstone. A few years ago, Ms. Herzer says Mr. Redstone asked her to move in to his home to assist with his healthcare, which has been on the decline for several years.
It was presumably around this time that Mr. Redstone to made Ms. Herzer the agent of his Advance Healthcare Directive. As his agent, she would have full authority to manage his healthcare should he be deemed incompetent. In addition, Redstone reportedly left her $50 million in his will, and his $20 million dollar Los Angeles home. But in October of last year, Mr. Redstone abruptly changed both documents, removing Ms. Herzer completely. Shari Redstone, his daughter, who had reportedly been estranged from him for many years, placed herself at the helm of his household and care.
Consequently, Ms. Herzer filed a lawsuit alleging that Mr. Redstone lacked mental competence and was unduly influenced by daughter Shari to change his estate planning documents. In legal terms, an allegation of undue influence implies elder abuse, and can have serious legal ramifications. Shari's lawyers were quick to respond to the allegations. They vehemently denied any lack of competence on Mr. Redstone's part. This is understandable. If Mr. Redstone was publicly determined to be incompetent - or unable to manage his own medical and financial affairs - that could have serious consequences for his role as majority owner of Media giants Viacom and CBS Corp. Aside from being majority shareholder, he is also a director and chairman emeritus of the $42 billion dollar companies.
A complex legal battle ensued, with the primary issue being Ms. Herzer's removal as agent of Redstone's healthcare directive. The parties were not able to come to any resolution, and hence the case made its way to trial beginning May 6th. The trial came to an abrupt end, however, after the judge watched a video of Sumner declaring his hatred for Ms. Herzer, and his desire to have his daughter remain as agent for healthcare decisions. After seeing the video, the judge declared that "the testimony does in fact completely alter the case,” and promptly dismissed the case. He further stated that "he was not making a finding related to Mr. Redstone’s mental capacity.... but was focusing on the issue of Mr. Redstone’s health care."
When Manuela Herzer first brought the lawsuit, she stated that it was out of concern for the health and well being of Mr. Redstone. No doubt Shari Redstone would also state this was the primary reason for removing Ms. Herzer from her father's home and having him change his estate plan. But upon closer examination, one has to wonder if this 92 year old man, who was already in a state of poor mental and physical health, is simply being used to further the financial gain of the women fighting over him.
In most litigations that involve an elderly person with possible dementia, as well as significant assets, it is natural for there to be at least some self interest on the part of those involved. What concerns me is when that self interest is put ahead of the best interests of the elderly person. And it is not just the family and friends involved who are guilty of this - it is often their lawyers as well. After all, attorneys who specialize in trust and elder law litigation are frequently in it to win it, so to speak. This can lead to prolonged litigations, severe emotional distress among family members, and irreparable rifts - not to mention trial. Do these things really serve to benefit the elder involved, and is the end result negated by the damage done in the process?
The answer will of course differ depending on the circumstances of the case. However, as an attorney, this is a question I always put to my clients, and I often wonder about as I observe the actions of other attorneys around me.
In the case of Sumner Redstone, I can only hope that he is able to peacefully enjoy the rest of his days, and the rest of the fighting can be reserved for after he is gone.
If you have questions about a trust, conservatorship, or elder abuse matter, please call my Walnut Creek office at 925-322-1763 for a free consultation.