On May 9, 2016, Los Angeles Judge David Cowan interrupted what had been scheduled as a lengthy trial to rule that a videotaped deposition of Sumner Redstone, age 92, proved that he was mentally capable of replacing his 51 year old girlfriend, Manuela Herzer, as his Health Care Proxy. Ms. Herzer had contended that Mr. Redstone was no longer capable of changing his Health Care Proxy or, for that matter evicting her from his home. Leading up to the trial were six months of embarrassing documents and depositions that placed in question Redstone’s competence. While the contents of his Will and Trusts were not relevant to this particular case, it was leaked that Herzer would inherit $70 million from a Will Redstone signed in happier days…
Mr. Redstone, formally a resident of Newton, MA, acquired an immense fortune as founder and principal shareholder of Viacom, an entertainment and communication giant which acquired CBS, one of the world’s premier media companies. If Herzer could prove that Redstone was “incompetent” (the preferred legal term today is “incapable”) of managing his own affairs, she would inherit about 70 million dollars.
This case may become a “classic” to be studied around watercoolers and in law schools on how to assert or take away elders’ control over their lives. Those who saw the deposition noted that, while Redstone expressed his feelings strongly, a speech pathologist was needed during the deposition to interpret Redstone’s impaired speech and coach him to slow down, speak louder, and swallow frequently. Despite Redstone’s problems making himself understood, Judge Cowan implied that Redstone could still rewrite his entire estate plan – not just his Health Care Proxy. The surprising decision is intriguing in several ways.
First, of course is the fact that Judge Cowan decided not on the basis of testimony in court but simply by viewing a videotaped deposition which involved structured direct examination of Redstone in a deposition conducted by his attorney. Although Redstone appeared to be in pain and did not speak clearly during some of the deposition, his answers to direct questions seemed, to the judge, to be rational, consistent, and not unduly influenced.
Second, it’s unusual that the judge did not require Mr. Redstone to appear in court to demonstrate his reasoning and knowledge…I expect that Herzer’s lawyers may raise that point on appeal. Or did the Judge consider that appearing in court might have added to Redstone’s confusion?
Third, the stakes in such trials involving capacity can be immense. Future elder law classes (at least the ones I teach) may debate whether Mr. Redstone’s capacity was adequately judged. Indeed, the case highlights the need to balance “autonomy” vs. “safety.” Should 92 year old Sumner Redstone be permitted to make all the decisions in his life (because they affect many others as well) if his emotions, hearing, reasoning, or predispositions might lead to the wrong, or heavily influenced choices?
Bill Brisk, 5/10/16
