By Josh Peter | USA Today | July 7, 2014
LOS ANGELES — Beyond the high-powered lawyers and public fight over the $2 billion sale of an NBA team, Donald and Shelly Sterling are caught in a struggle that often unfolds when someone reaches an advanced age and difficult questions arise.
Is it safe for him to drive? Does he need a caregiver?
Or, in the case of 80-year-old Donald Sterling, does he have the mental capacity to serve as a co-trustee of the Sterling Family Trust, which owns the Los Angeles Clippers?
Donald Sterling’s attorneys acknowledge he has mild cognitive decline but say he is competent. His estranged wife points to the evaluations of two doctors who examined Donald Sterling. They concluded he has symptoms of Alzheimer’s disease and lacks the mental capacity to serve as a trustee.
Donald Sterling is fighting his wife’s decision to remove him as co-trustee, a step that subsequently allowed her to act alone in agreeing to sell the Clippers to ex-Microsoft CEO Steve Ballmer. A trial in Los Angeles Superior Court began Monday. Donald Sterling is expected to testify Tuesday.
Meanwhile, legal and health experts interviewed by USA TODAY Sports say such battles — though typically handled without going to court — are growing more common and contentious for several reasons:
The first Baby Boomers, which comprise a quarter of the U.S. population, are approaching the age of 70. That increases the likelihood they will experience age-related dementia, a brain disorder characterized by problems with memory, attention, decision making and judgment. Americans also are living longer — an average of 79.8 years, according to 2013 data released by the World Health Organization — which will increase incidence of dementia.
Of the approximately 5 million Americans diagnosed with Alzheimer’s disease, the most common form of dementia, many in the early stages of the disease can function well. Because of the wide spectrum between mild and major impairment, determining what they’re capable of can be tricky, said Beth Kallmeyer, vice president of constituent services for the Alzheimer’s Association.
“The brain is complicated,” she said. “It’s a situation where somebody might be able to do something one day, and the next day they might struggle with it, and then they can do it again.”
Courts remain hesitant to strip people of their rights even in the face of cognitive decline.
“The law favors the rights of the individual,” said Patricia Hunter, a California psychologist who assesses people for mental capacity. “We want to err on the side of respecting a person’s ability to make decisions regarding his or her assets that he or she has spent many years earning.”
Several attorneys told USA TODAY Sports they think Donald Sterling faces long odds but has an intriguing argument.
Donald Sterling’s lawyers say they have a doctor who examined Sterling and is ready to testify that he found Sterling competent, but lawyers on both sides agreed last week that mental capacity would not be an issue at the trial. Donald Sterling is instead arguing that his revocation of the trust June 9 prevents his wife from completing the Clippers sale.
Shelly Sterling’s attorneys contend that by the time Donald Sterling moved to revoke the trust, his wife already had acted within her authority in signing a binding agreement to sell the Clippers.
What would happen if the court rules in Donald Sterling’s favor?
The possibilities, according to legal experts, include Shelly Sterling suing to have Donald Sterling found incapacitated by the court so she can reclaim control of the team and consummate the sale; the NBA moving forward with its original plan to terminate the Sterlings’ interest in the team and sell it on its own; and Ballmer suing if the court rules Donald Sterling effectively revoked the trust and Ballmer’s deal with Shelly Sterling was non-binding.
There is a lower legal threshold in California for someone to revoke a trust than there is to serve as trustee, attorneys say. That different standard stems from the understanding that cognitive impairment can range from mild to major, that it requires less capacity to handle less complicated tasks, and reflects the courts’ inherent protection of individual rights, according to experts.
Wendy Greenberg, a California trusts and estates attorney, reviewed the determination letters from the two doctors who ruled Donald Sterling incompetent and said she thinks Sterling could prevail if a court was hearing arguments on whether he had the mental capacity to revoke the trust.
“It looks like he has mild impairment,” Greenberg said.
FRAUD OR FAIR?
In California, the struggle over mental capacity often involves around a revocable trust — typically used to avoid the state’s costly and onerous probate court process that takes place when assets are distributed upon one’s death — said Genevieve M. Moore, a San Francisco-area attorney whose specialty includes such issues. The Sterling Family Trust, established in 1998, is revocable.
“I feel like I hear of a case every week where someone has these questions, whether he has capacity to be managing those assets in the trust,” Moore said. “How do we get this person to resign? How do we bring in a co-trustee? How do we make sure they’re not making imprudent decisions?
“I think in many families if they can find a way to talk about it, a parent can be persuaded to resign. But that’s not always the case.”
The matter involving the Sterlings, estranged after 58 years of marriage, shows how rancorous such disputes can become. Donald Sterling has accused his wife and the doctors of fraud, claiming they failed to fully disclose the purpose of the examinations that led to his removal as co-trustee.
Three attorneys who reviewed court documents for USA TODAY Sports said Donald Sterling will have trouble proving that — largely because evidence suggests the provisions of the trust were followed when two licensed doctors unrelated to either Sterling determined Donald Sterling is mentally incapacitated through evaluations routinely performed as part of their practices.
Lawyers also said evidence suggests Shelly Sterling carried out her fiduciary duty to Donald Sterling when she signed an agreement to sell the team for more money than has ever been paid for an NBA franchise.
But Bradley J. Frigon, president of the National Academy of Elder Law, sounded a word of caution.
“Anytime you’re in court, it’s never a slam-dunk,” he said. “The court is a precarious place.”
Read the full articles, plus other updates on the Sterling case, on the USA Today website.