#FreeBritney: How Do Conservatorships Work?
As issues regarding conservatorships continue to trend, our Trusts & Estates team takes a closer look at what you and your loved ones should know.
#FreeBritney: How Do Conservatorships Work?
Conservatorships, which are also known as “adult guardianships,” are a mechanism by which the court determines that an individual (the “ward) is no longer able to make important decisions for themselves due to factors such as age or illness and appoints a conservator to make decisions for the individual and protect their finances and other assets. A conservator is also tasked with arranging the care, custody, and support for the individual.
While many think that conservatorships only concern the elderly, courts will frequently appoint someone to make financial decisions for someone who it believes is unable to do so for themselves. That’s what a California court did in February 2008, after the pop star Britney Spears was placed on a temporary psychiatric hold in Los Angeles, where she was treated at a UCLA facility.
Let’s look at the finer aspects of conservatorships and why Britney Spears continues to trend in the news.
What is a Conservatorship?
A conservator typically makes financial decisions related to the ward, a guardian generally makes decisions related to the ward’s health and physical welfare. A guardian and/or conservator can be appointed only after a judge court finds that the individual is incapacitated based on evidence.
How is a Conservatorship Created?
Typically, a family member who’s concerned about an individual’s welfare must file a petition in court requesting the appointment of a guardian or conservator. Once the petition is reviewed and accepted for filing, a hearing is scheduled with a judge. An attorney is appointed for the individual by the court to represent the expressed wishes of the individual throughout the court proceedings. In the hearing, the judge will determine, based on the evidence, if a guardian and/or conservator should be appointed. The judge will also provide the extent of that authority.
The individual in question has a right to contest the petition and present evidence about his or her situation if they do not want a conservatorship.
Can a Conservatorship Be Ended?
Yes. The ward or someone interested in their welfare may seek to end the conservatorship by filing a petition for removal with the court. A hearing is held to decide whether the conservatorship is still needed and, if so, whether a different conservator should be appointed.
Why Does Britney Spears Want to End Her Conservatorship?
Britney Spears told a judge in June that her conservator father was ruining her life and that she wanted her conservatorship to end. The judge overseeing Spears’ conservatorship permitted the pop star to appoint Mathew Rosengart as her personal attorney. Now, she has a number of options with an attorney who can represent her own interests.
One is for Spears to end the conservatorship entirely, and to do this she and her attorney would need to demonstrate to Los Angeles Superior Court Judge Brenda Penny that she no longer needs the control of a conservatorship and that she can make these decisions for herself.
The second option would be to modify the conservatorship to allow Spears more control over her life, including authorizing a greater weekly allowance and taking greater control over her career. Modifying the arrangement could also lead to ending it in the future. Conservators can have limited authority, so that some independence can be returned to Britney in a gradual transition to end it.
The final way ahead would be to dismiss her father Jamie Spears as Britney’s financial conservator and leaving the conservatorship structure in much the same state. Britney has stated in court that she would like Jodi Montgomery — who Judge Penny appointed as Spears’s personal conservator in 2019 — to stay in her position for now. But Britney wants her father removed from his position and charged with conservatorship abuse.
It appears that the judge is leaning towards granting Britney more control. on February 11, 2021, Judge Penny upheld the partnership between Jamie Spears and Bessemer Trust, rejecting her father’s request to grant him sole control over his daughter’s estate, which Britney doesn’t want. After the decision, Britney’s lawyer, Samuel Ingham, told the press, “It’s no secret that my client does not want her father as co-conservator, but we recognize that removal is a separate issue.” As a result, this looks like a step towards “freeing” Britney.
Proposed Legislation on Guardianship & Conservatorship Reform
The United States Congress has also been watching the efforts to #FreeBritney. The fight to end her conservatorship has prompted a new bill designed to protect those in conservatorships.
A bipartisan proposal was introduced in July by Representative Nancy Mace (R-SC) and Representative Charlie Crist (D-FL). The measure is called the Freedom and Right to Emancipate from Exploitation Act, or FREE Act.
Most notably, the bill would permit a person in a conservatorship to petition to replace their court-appointed private conservator with a public conservator, family member, or private agent, without having to demonstrate abuse. The bill would also provide state funding for case workers to oversee conservatorships. Those states that accept the funds would be required to have case workers and public guardians disclose their finances. These states would then also have to report on conservatorships every year.
In fact, the legislation makes specific reference to “pop icon Britney Spears,” along with other recent allegations of misconduct in conservatorships.
“The inability of Britney Spears to free herself from her father’s control,” the bill says, along with those other allegations, “indicate that State guardianship and conservatorship systems can deprive a United States citizen or resident of liberty and property without due process.”
States Update Conservatorship Statutes in Response to COVID-19
A number of states made changes to their conservatorship laws in 2020 to address concerns about seniors in the coronavirus pandemic. Twenty-three states made some type of changes.
Three states and the District of Columbia enacted COVID-19 legislation that directly concerned guardians. DC enacted a new requirement for guardians to inform at least one relative of the person within 48 hours of a major change in circumstances, including admission to a medical facility, transfer to acute care, or placement on a ventilator.
New York required residential healthcare facilities to prepare and publish pandemic emergency plans, including a communication plan for families and guardians. New Jersey authorized legal guardians to request a long-term care facility develop an individualized visitation plan for a patient.
North Carolina allocated funds for COVID-19 rapid tests for family members or guardians seeking to visit residents of congregate care facilities.
Louisiana became the state to enact a supported decision-making agreement law. Minnesota updated its guardianship statute for the first time in a decade, and the Commonwealth of Virginia required court orders appointing a guardian to direct that person to encourage the respondent to participate in decisions, act on his or her own behalf, and develop or maintain the capacity to manage his or her personal affairs if she or he retains any decision-making rights.
Since 2011, states have enacted more than 340 adult guardianship bills, ranging from a complete overhaul of the statutes to minor changes in guardianship and/or conservatorship procedures. Many changes to state statutes have addressed the safeguarding of the rights of wards; addressing elder abuse in these programs; and promoting options that are less restrictive for wards.
Do you and your loved ones have questions about conservatorships? Our Trusts & Estates team, one of the largest private client and estate planning practices in the American west is here to help.
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