After her mental breakdown in 2008, the California Courts approved a conservatorship restricting Britney Spears’ control over her own assets and health decisions. The resulting 13-year court-authorized supervision has been oppressive for Britney. You may be wondering, could that happen to me?
There are two kinds of fiduciaries who can be named by a court to take control of the person and the property of an individual. Control of a person is called a guardianship of a person. It generally entails making health care decisions and determining appropriate living arrangements. Control of property and finances is called a conservatorship in some states like California and a guardianship of the property in other states like Maryland. The guardianship over the property can be general or restricted as the court determines.
Why should a court have the right to make determinations about a person’s right to choose their health care and right to manage their property and financial matters? Some people need a guardian. For example, an elderly person, diagnosed with Alzheimer’s disease, no longer making proper decisions needs a guardian. In those instances, a family member or other interested person might file a petition for guardianship of the person and their property.
The petition for guardianship generally requires the attestation of at least two medical professionals as to the incapacity of the subject. To guarantee due process, the court will also appoint an attorney for the purportedly incapacitated person. In Maryland that occurs only if that person has not already chosen an attorney. The subject is required to appear in court, absent danger to their health. After arguments presented by attorneys for the petitioner and for the subject, the court rules. If the court deems the guardianship to be necessary, the court appoints a guardian who might be suggested by the petitioner or some other third person.
In Maryland, the courts demand proof that there is no less restrictive alternative available. This helps to avoid unnecessary guardianships. If you have a properly executed power of attorney that is the best prophylactic against court appointed guardianships. With a power of attorney, you choose the person who takes control in the event of your incapacity.
What makes the Britney Spears case so fascinating are the questionable actions of the California court. The court considered Britney to be so incapacitated that her assets and health were in jeopardy. If she were merely a spendthrift, that would not have been sufficient. To establish a guardianship, attorneys offer examples of deeply troubling behaviors; that the subject is not paying their taxes or has been scammed for large sums of money.
In the Spears case, the court appointed attorney, Samuel Ingham III, was not even known to her. I am incredulous that the mega star did not already have legal representation of her own choosing. After all, she had been in the music industry represented by attorneys on copyright and contract matters for nearly two decades.
Unlike Britney’s case, most guardianships take place when the subject is elderly or fully incapacitated. Guardianship battles often erupt over family disagreements over money. You may recall the guardianship battle regarding Sumner Redstone in 2018. Redstone was the former CEO of CBS and Viacom. Redstone’s family petitioned for guardianship over the 95-year-old media mogul. The California court appointed attorney Samuel Ingham III as guardian. The Judge made no finding of incapacity but granted the guardianship based upon a determination that Redstone was unable to communicate due to a severe speech impediment. Redstone lived another two years while his family used the conservatorship to claw back gifts made to Redstone’s former companion and amended a trust to deny her a large bequest.
Recently, Britney Spears spoke to the court about living under a conservatorship. She shined a national spotlight on the problems of guardianship systems which can have a devastating impact on people’s lives. Disability justice organizations have been working for years to advocate for alternatives to overbroad, unnecessarily restrictive, and undue guardianship. The movement toward supported decision making has gained traction, as courts and communities seek better ways to include persons with disabilities in controlling their lives.
The concept of supported decision making begs some fundamental questions about how we honor an individual’s rights. While Britney Spears had mental health challenges, should a Judge deny her ability to control her own finances? Is it a concern of the courts and society if she spent her entire wealth on vacations or gone into debt? Britney has been a working mother and public figure living under the supposition she could not make financial choices over her hard-earned fortune. Others with addictive behaviors or bi-polar mood disorder have blown through great sums. Should a judge have the right to impose restrictive limits on a person’s financial autonomy to prevent financial recklessness?
A final thought. The subject of a guardianship can always petition the court to end the guardianship. Britney Spears had not clearly made that request of the court until now. Such delays are understandable. Legal processes are generally inaccessible and removing a guardian is arduous. The safeguard of petitioning for termination of a guardianship should be made manifest through an annual review of each guardianship that includes either a communication from the subject or a representation of why the subject would be unable to request termination.
The long duration of the Spears conservatorship seems incongruous while its subject has been a top attraction in Las Vegas earning millions. Perhaps the cry to free Britney will be a rallying cry for reform of the way our courts appoint guardians and conservators for people who are still active participants in society.
Evan J. Krame