Growing Trend of Challenging Wealthy Seniors’ Capacity in Court

The messy legal dispute over the mental health of media mogul Sumner Redstone is an example of the growing trend of litigation that raises the issue of the competency of the elderly.

As The Wall Street Journal notes in “Redstone Case Spotlights Rise in Competency Litigation,” usually beneficiaries wait until after a person has passed away to challenge a will or trust. However, with longer life spans and more accumulated wealth among the aging, impatient family members and friends have increasingly tried to get the money before death. This has fueled disputes.

Redstone is the 92-year-old controlling shareholder of Viacom, Inc. and CBS Corp. His longtime companion, Manuela Herzer, sued in November to challenge the competency of Redstone after he removed her as his health-care agent and kicked her out of his mansion. The two sides are discussing a settlement, so preparations for trial have been suspended.

Dementia is a concern in many of these cases, with 5.3 million Americans—most over 65—living with Alzheimer’s disease. The Alzheimer’s Association expects that number to rise in coming years. Many of these battles hinge on whether an aging person had the capacity to decide important personal and financial issues—like selling a house or changing a will—or whether anyone may have exerted undue influence over the decision.

While there’s no uniform competency test, some are used more frequently in court—such as asking patients to do tasks like count backward from 100 by seven, draw a clock showing a certain time, and name as many words as possible starting with a certain letter. Doctors will ask patients about current and historical events, to name their children, and how they handle daily tasks. In addition, it can be difficult to find geriatric specialists to administer the tests. In such cases, general practitioners must conduct them, and they may not be familiar with the nuances of someone’s abilities. Inexperienced judges can present other problems—like when judges who aren’t lawyers rule on probate matters or states assign probate cases to general civil judges.

In Redstone’s case, like many others, the situation is even more complicated because the judge has to decide whether someone had decision-making power at the time of a certain event in the past. While the elderly may not always be able to fend off legal challenges like Redstone tried to do, they can get a doctor’s evaluation at the time key financial documents are signed or other important decisions are made.

Reference: The Wall Street Journal (April 12, 2016) “Redstone Case Spotlights Rise in Competency Litigation”