Sumner Redstone’s Mental Capacity Investigation Postponed

UPDATED: The contest over who will have the right to oversee Sumner Redstone’s end-of-life health care decisions will continue in the Los Angeles courts, following a hearing Monday afternoon.

Probate Judge Clifford L. Klein kept the case alive, but lent it none of the urgency asserted by Redstone’s long-time friend and confidante, Manuela Herzer, who claimed that the Viacom and CBS chairman was incapacitated and should immediately be required to submit to a deposition and tests of his mental capacity.

Declining to dismiss the case immediately, Klein instead set a Jan. 27 hearing for additional arguments on whether Herzer should be allowed to continue with her attempt to re-establish herself as Redstone’s primary health care agent in the event that he is deemed incapacitated.

Klein said there was no evidence of an urgent need for intervention for four reasons: Redstone is seen by his personal physician twice a week; he does not appear to face any immediate critical health-care needs; he has around-the-clock in-home care and he designated a new emergency health care agent as of mid-October — Viacom CEO Philippe Dauman.

The hearing came following Herzer’s Thanksgiving-eve bid to re-assert her significant role in Redstone’s care, following her Oct. 12 ejection from the billionaire’s Beverly Park mansion. Four days later, Redstone’s Advance Health Care Directive was re-written to replace Herzer as designated health care agent, in the event of the corporate chieftain’s incapacity. The document made Dauman, a business associate and friend of more than 30 years, the new health care overseer.

Herzer asserted that she wants the role as health care agent to fulfill the wishes of Redstone, who she described in court papers as a one-time boyfriend and long-time friend, who trusts her more than his own children and grandchildren. Redstone’s lawyers rejected that view, saying that Herzer was going to the probate court as a preliminary maneuver to attempt to dispute Redstone’s trust after his death.

Those larger issues were not discussed during the brief hearing Monday afternoon in Klein’s downtown courtroom. The judge first rejected the pleas of Herzer’s attorney, Pierce O’Donnell, for urgent new inquiries into Redstone’s health and mental state. He then ruled that there was not an immediate need for the magnate to testify or submit himself to more testing.

Klein called Herzer’s requests for additional information “overly broad.” He noted that Redstone’s primary care physician had already given a declaration, attesting to his patient’s mental competency and saying that a CAT-scan had been completed within the last two weeks, showing no signs of stroke or any impairment. Given that, Klein said he would not order additional tests now. He asked the attorneys for the two sides to meet and confer on what additional inquiry would be reasonable.

Herzer’s attorney, O’Donnell, said the hearing had been successful, because the judge had not granted the Redstone motion for an immediate dismissal. He predicted that the Viacom and CBS chairman will eventually have to give a deposition to try to discern whether he was competent to change his health care directive in October. “Granting a motion to dismiss would be very unusual without hearing from the subject about lack of capacity,” O’Donnell said.

Redstone’s lawyer, Gabrielle Vidal, said she was happy that Judge Klein had not moved to grant Herzer’s demands immediately. “We are pleased the Court today expressly rejected Ms. Herzer’s claims of urgency and granted our request to stay [in] discovery pending next year’s hearing on our motion to dismiss,” Vidal said in a statement. Redstone’s representatives noted that the judge had signed the order they had drawn up, not the one from Herzer’s lawyers. The request for early dismissal had been only one of the options they presented the judge.

Herzer’s lawyers said that, nonetheless, the issue remained as to whether Redstone was mentally capable of reversing his earlier health directive that picked Herzer as his health agent. In a new court filing Monday, they said the issue was “not the determination of whether the patient is receiving adequate health care, but rather the validity of decisions relating to his or her health care, including issues bearing on whether the authority of an agent or surrogate has been terminated or revoked due to the patient’s lack of capacity.”

Herzer’s lawyers cited the state probate code, and said an individual has “a fundamental interest in having his personally selected agent in place to make highly personal and intimate health care choices for him when he is unable to do so for himself, as is currently the case.”

In her legal application last week, Herzer and others asserted that the once domineering Redstone had become “a living ghost,” who could scarcely speak or eat and who seldom left his Beverly Park mansion. Herzer insisted that Redstone had decided that only she would make end-of-life decisions and that he must have been under undue influence from a third party to remove her from his life. The papers gave no indication of who might have pushed Redstone to change his end-of-life directive.

The account of Herzer and her allies stood in striking contrast to the response filed by Redstone’s lawyers. She said Redstone had lost interest in past passions like the news, sports, business and his beloved tropical fish collection. In her declaration, Herzer said that the nonagenarian was frequently weepy and depressed, while also developing an odd fixation on eating steak and insisting on having sex daily.

The magnate’s lawyers vehemently rejected that depiction and accused Herzer of using the legal filing to prepare to contest Redstone’s trust when he dies. The attorneys, from Loeb & Loeb, filed a declaration in which the Viacom chairman’s doctor, Richard Gold, said his patient seemed normal when he visited him last Monday. “Mr. Redstone seemed to be his usual self, and joked with me, as is typical,” Gold said, though he acknowledged Redstone’s speech is impaired.

Similarly, Dauman said in a declaration that he speaks to Redstone several times a week and visited him in early October and again in early November. During the latter visit to the Beverly Park mansion, Dauman said the two men discussed business, a movie Redstone had just screened and watched a basketball game together. The Viacom CEO said he found the corporate chairman “as engaged, attentive and opinionated as ever.”

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