PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Removing Your Health Care Surrogate

EXAMPLE: Your client is 93 years old and suffers from age related dementia (short term memory loss, etc.). Overall, he appears to be in good health. You previously drafted his Heath Care Surrogate Designation (“Designation”) wherein he named his girlfriend as his surrogate and his daughter as the alternate. There has not been a judicial determination of incapacity and his main treating physician believes that he has the capacity to make his own health care decisions. Your client instructs you to remove his former girlfriend as his surrogate because he no longer trusts her to make his health care decisions. In response, the former girlfriend files a lawsuit challenging her removal based lack of capacity and undue influence by the daughter. You suspect that this is a precursor to the next wave of litigation challenging your client’s capacity to act as trustee of his sizable trust. That’s what happened to Sumner M. Redstone.

In Re: Advance Health Care Directive Of Sumner M. Redstone (Cal. Sup Ct. 11/25/15), the issue before the court was whether Redstone, age 93 with a net worth of $8.4 Billion, had sufficient mental capacity to terminate his designated surrogate. He had given the directive to his former girlfriend, Manuela Herzer but revoked that power a month later. With a substantial amount of money at stake for Herzer, she argued that Redstone was incompetent to revoke the power and replace her.

At the trial, Judge Cowan relied not only on the opinions of the experts but primarily on the testimony of Redstone himself, who appeared via deposition in light of the physical difficulties entailed in his coming to court to testify live. Judge Cowan found that although his speech was impaired and his mental acuity diminished, Redstone was unmistakable and firm in his desire to revoke the health care power of attorney he had given Herzer. He testified unambiguously (and profanely) that he did not trust her and wanted her out of his life.

The key issue before the court was what level of capacity was needed for Redstone to revoke the directive. Herzer argued that a high level of capacity, similar to that required to enter into contracts, was needed for Redstone to revoke the power. Redstone, on the other hand, argued that a lower level of capacity, equivalent to that required to make a decision to marry or divorce (the lower level on the sliding scale of capacity) was all that was required.

The court held that in determining the degree of capacity needed to revoke a health care directive, analogizing to the capacity necessary for marriage or divorce was the most appropriate. Trust was the underlying concern in the context of marriage/divorce as well as for the exercise of health care directives, and even persons with diminished capacity are capable of making decisions about who they trust. Relying on Redstone’s unambiguous testimony regarding his lack of trust for Herzer, the court held that he had sufficient capacity to determine who should control his health care decisions. The court gave little weight to whether or not Redstone was objectively justified in his lack of trust and rejected Herzer’s argument that his change of heart was a result of undue influence by his daughter. A copy of the Tentative Ruling on Motion to Dismiss Petition, dated 5/9/16 and Redstone’s deposition can be found at:

http://www.loeb.com/~/media/files/pdfs/20160509redstonedismissalorder.pdf

http://www.wsj.com/public/resources/documents/redstone.deposition20160506.pdf

FLORIDA LAW: In Florida, “every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment.” See, 765.102(1), F.S. To ensure that such right is not lost or diminished by virtue of later physical or mental incapacity, The Florida Health Care Surrogate Act (§§765.202-765.205, F.S.) establishes a procedure that allows your client to designate a surrogate to direct the course of his health care and receive his health information. In addition, the Act establishes a procedure to determine your client’s incapacity. See, 765.204(2), F.S. A determination that your client lacks capacity to make his own health care decisions is not construed as a finding that he lacks capacity for any other purposes. See, 765.204(5), F.S.

If your client has decisionmaking capacity, he can make his own health care decisions, amend the Designation, or revoke the Designation. The amendment or revocation can be verbal or in writing. See, §§765.104(1) and 765.204(1), F.S. Unfortunately, the Act does not speak to the level of capacity necessary to remove a surrogate. Assuming your client lacks capacity, an interested person may seek expedited judicial intervention to remove the surrogate pursuant to §765.105, F.S. if:

  • The surrogate’s decision is not in accord with your client’s known desires;
  • The Designation is ambiguous;

(c) Your client changed his mind about designating or appointing the surrogate;

(d) The surrogate was improperly designated or appointed;

(e) The designation of the surrogate is no longer effective or has been revoked;

(f) The surrogate has failed to discharge her duties;

(g) The surrogate’s incapacity or illness renders her incapable of discharging her duties; and/or

(h) The surrogate has abused her powers.

In summary, in Florida, if your client wants to pursue removal of his surrogate and his capacity is in question, it may be necessary for the court to determine his level of capacity. Alternatively, if your client lacks capacity, an interested person may pursue removal of the surrogate.