Sumner Redstone remains embroiled in lawsuits: The link between money and Conservatorship

Vanity Fair recently published a new article, “It is Not a Coincidence: With 75 million on the line, the Redstone Family declares Sumner incompetent.” If you’re unfamiliar, Sumner Redstone is the Hollywood Mogul billionaire at the helm of a media empire that includes CBS and Viacom. For the past several years, Sumner has been at the center of multiple court cases in Southern California. Primarily at issue is his mental competence. Now 95 year old, questions around Sumner’s ability to make his own decisions – and those for his business - have thrown the family - and the company into an ongoing Court battle.

            The latest court proceedings were regarding the appointment of what’s called a “Guardian Ad Litem” for Mr. Redstone. While well written and entertaining, Vanity Fair’s article does not define exactly what a Guardian Ad Litem is, and fails to recognize that the word “Guardian” is not related to a “guardianship” in California probate law. I’m not criticizing, after all most of us wouldn’t care what the difference is anyhow. But if you’re facing a legal guardianship – correctly called a “Conservatorship” for those over 18 in California, the meaning of each role has real significance. And even if you’re not facing a Conservatorship, it’s always nice to be informed. Read on to learn exactly what the role of a “Guardian Ad Litem” is.

            Much of what Sumner Redstone has been in the news for falls under a Probate proceeding called a “Conservatorship.” Other much younger celebrities, such as Britney Spears and Amanda Bynes, have also made headlines for their conservatorships. A Conservatorship is where the Court appoints an individual to be in charge of another’s finances and/or healthcare. Sounds simple, right? If you believe an individual can no longer take care of themselves – and are literally a danger to themselves – you can present evidence as such to a judge and petition for Conservatorship. With enough clear evidence, most judges will grant Conservatorship. In many instances however, complicating factors make the path to Conservatorship a difficult one.

      Conservatorship proceedings can be hotly litigated by family members and sometimes the proposed Conservatee. Redstone’s case began like many other Conservatorships - with the signing of Estate Planning documents. In 2016, Sumner’s daughter had him sign new estate planning documents that ousted his longtime companion, Manuela Herzer. Herzer then filed a conservatorship alleging Redstone lacked the mental competence to make such decisions and was subject to undue influence by his daughter Shari. Undue influence, defined by California law 15610.70 is essentially when someone applies “excessive persuasion” that results in an unfair result that benefits the person applying the undue influence. The Conservatorship proceeding primarily revolved around who would manage Redstone’s healthcare. When someone has sufficient mental competence, he or she can appoint his or her own agent using an Advance Healthcare Directive. If that mental competence is gone – or is in question – one can go to Court and establish a Conservatorship. For purposes of health care and wellbeing, a “Conservatorship of the Person” appoints a “Conservator” to make health related decisions on behalf of another, called the “Conservatee.”

            In my practice, I have only seen a handful of litigated Conservatorships that revolve solely around who will manage the Conservatee’s healthcare. Typically the real fighting begins when money is involved, and this was exactly what happened in Redstone’s case. After the initial Conservatorship proceeding regarding healthcare, Redstone became the center of a number of other Court cases that involved both a Conservatorship of the Estate as well as Trust matters. In other words – Sumner’s money: who controls it, and who gets it. Because Sumner was at the helm of such a vast media empire, his battles have also included significant litigation regarding who controls his shares and recent decisions he’s made at the company. And this brings us back to Vanity Fair’s article about the appointment of a “Guardian Ad Litem” for Sumner Redstone.

            Because many litigated Conservatorship proceedings also involve allegations of undue influence, financial elder abuse, and dealings within one or more Trusts, multiple attorneys are appointed to represent the interests of the individual at the Center of the controversy. The first attorney is typically appointed by the Court from a panel of attorneys who are experienced in representing Conservatees. This is called the Attorney for the Conservatee. He or she is tasked with representing the interests of the Conservatee throughout the Conservatorship proceeding. If a Trust or other proceeding, such as an Elder Abuse lawsuit is filed with the Court, the Judge may choose to appoint a “Guardian Ad Litem” to act as the attorney for the person whose mental capacity is in question. This is exactly what happened in Redstone’s case this week. A Guardian Ad Litem does not fill the role of a “guardian” or “conservator” but instead serves to represent the interest of an individual in lawsuits. In certain instances, the person with questionable mental capacity hires his or her own counsel privately, but this is not looked kindly upon by the Courts because it has either been established – or remains to be seen – if the person has the capacity to enter into a legal contract.

What will ultimately happen to Sumner Redstone?

While Mr. Redstone may not have full mental capacity, it’s unlikely he is immune to the immense stress created by the many lawsuits surrounding him.

The bottom line in litigated Trust and Conservatorship matters that involve an elderly individual is that lawsuits - and family fighting - has a detrimental effect on the elder’s health. It’s likely the stress here will only serve to hasten his death.

Can anything be learned from Redstone’s story?

If there’s anything we can take away from Redstone’s very public court battles, it’s that Conservatorship - and competency - can be complicated. If you’re facing a potentially litigated Conservatorship or Trust matter, seek the guidance of an attorney who is not only highly experienced, but also upfront about the financial and emotional toll litigation can take on families.

If you have questions about Conservatorship or Trust Litigation in the San Francisco East Bay and Contra Costa County, contact our office for a Consultation: 925-322-1795.

Navigating the Legal System: Katherine Jackson and How to Fight Elder Abuse

 

 

Michael Jackson's Mother claims Elder Abuse: What are her legal options?

Michael Jackson's 86 year old mother Katherine filed legal documents Wednesday claiming her former driver and nephew in law, Trent Jackson, had subjected her to years of elder abuse. She requested a restraining order, which was temporarily granted by the court, and will likely be permanently approved. 

The caregiver to Michael Jackson's three children, Prince, Paris and Blanket, accused her nephew of both financial and emotional elder abuse, including isolation from other family members. 

Elder abuse can take on a variety of different forms. The most prevalent forms I see in my practice are financial elder abuse and emotional elder abuse - which often includes isolation from family and friends. Katherine accuses Trent Jackson of both. Before we get in to the legal ways to combat elder abuse, let's first address what elder abuse looks like, using Ms. Jackson's case an example.

What forms can Elder Abuse take?

Financial Elder Abuse 

Infiltrating Business and Personal Affairs. The lawsuit accuses Trent Jackson of "infiltrating" all aspects of Ms. Jackson's affairs, even referring to himself as her "house manager." When a family member or friend becomes intimately involved in the affairs of a much older individual, their ability to manipulate or "unduly" influence is often greater. This is because older people are often more vulnerable mentally, physically, and emotionally. 

Accessing Bank Accounts. Katherine's lawsuit accuses her nephew of accessing her bank accounts without permission. According to the lawsuit, her nephew also used her credit cards without approval. In most cases of elder abuse, the alleged abuser does not outright "steal" funds from the elder. Instead, they apply pressure or manipulate the older individual to directly hand over funds or property. In Ms. Jackson's case, it is likely that Trent was given some permission to use bank or credit card accounts, and simply used the privilege beyond the scope of Ms. Jackson's intention. 

Emotional Elder Abuse

Isolation. The lawsuit claims that Katherine's nephew had begun to "regulate Mrs. Jackson’s interactions with her children — screening phone calls, not relaying messages, not allowing privacy during visits or phone calls." Isolation is a hallmark sign of elder abuse. 

Manipulation. Manipulation is most often inherent in both financial and emotional elder abuse. In Ms. Jackson's case, the legal docs claim Trent manipulated her in several different ways. First, was his manipulative behavior regarding financial affairs. This is the most common type of manipulation I see in cases of elder abuse. Trent even went so far as to convince Katherine not to press charges against him. The lawsuit claims Trent "preyed upon her known kindness" by "crying and begging her not to report him," even when Adult Protective Services or the Police had already arrived. 

Fear and Confusion. Katherine claims that Trent subjected her to significant mental abuse that left her “in a constant state of fear and confusion.” In the lawsuit she calls Trent an "abusive con-man."

What are your Legal Options to combat Elder Abuse in California?

Legal options for Elder Abuse depend on whether the victim is living or deceased. 

If the Victim is Living, there are 3 legal ways to combat Elder Abuse in the Civil and Probate Courts.

If the Victim is deceased, a Financial Elder Abuse lawsuit is the best legal route for pursuing Justice and financial retribution. 

1. Restraining Order

Katherine Jackson chose the route of the Restraining Order. This is the most direct way to remove an unwanted or abusive person from an elder's life. A restraining order is often employed when the elder knows they are being abused and wants to cut all ties with the abuser. In many cases, the alleged or suspected abuser is a close family member, and it is not ideal for them to be cut out completely. It is also common that the victim of abuse has a mental impairment such as Alzheimer's or dementia and does not fully comprehend his or her surroundings. In such instances, a Conservatorship is the best legal way to combat elder abuse and protect the elder. 

2. Conservatorship

If financial, emotional, or physical elder abuse of an elder with dementia or other serious cognitive impairment is occurring (or suspected), a Conservatorship may be necessary. A conservatorship is when the court grants a person legal authority over the medical and financial decisions of another person. This allows the person named as conservator to take action to protect either the finances or the health (or both) of the elder (conservatee). A Conservatorship is an expensive and time consuming endeavor which is generally used only when no other options are available. 

3. Elder Abuse Lawsuit

Elder abuse lawsuits can be filed in the probate court if the alleged victim is living or deceased. Most elder abuse lawsuits within the probate courts are financial elder abuse cases where one party is seeking financial retribution for crimes or fraud committed in the past. An elder abuse claim may accompany a Conservatorship, but in many cases financial elder abuse lawsuits are filed after the alleged victim has passed. Often this is because the abuses are not discovered until later. The most common type of financial elder abuse claim I see is when an individual changes his/her trust or will late in life, either after or around a diagnosis of dementia (or similar cognitive impairment) and at the behest of a close family member or caregiver. However, this is by no means the only form that elder abuse takes. 

The purpose of the elder abuse lawsuit is to seek financial retribution. In combination with a Conservatorship, financial justice and protection can both be sought through the probate court system. 

In Katherine Jackson's case, she will likely not pursue an Elder Abuse lawsuit. Most elderly persons in her situation seek to remove the person from their lives and reduce any further stress. It is unlikely that her nephew has any money of his own, and therefore an elder abuse lawsuit would not significantly benefit Ms. Jackson, and would result in more stress and attorney's fees. 

For questions about Elder Abuse or Conservatorships, contact my SF East Bay Elder Law Firm at 925-322-1795 for a consultation.