Oops, we’re doing it again. We’ve written about Britney Spears and her conservatorship from time to time, including two weeks ago, after she appeared in court. Here we are again, not to address Britney’s situation specifically but to look at how her conservatorship illustrates some truths about conservatorships. (Stars! They’re just like us!) But a lot has happened since Spears addressed the court on June 23. To catch you up:
- Spears’ co-conservator dad, Jamie, filed a request that the court investigate the allegations.
- Her conservator of the person filed to have a guardian ad litem appointed to help Britney find counsel of her own.
- But she may have found new counsel already.
- Britney’s corporate co-conservator requested to withdraw, which the judge quickly granted.
- The court-appointed attorney submitted a resignation, effective upon the appointment of another attorney.
- Her manager of 25 years quit.
- Celebs continued to voice support, including Madonna and Miley Cyrus.
Lessons for All of Us
For professionals who serve as fiduciaries (like Fleming & Curti) for incapacitated people, Britney’s case highlights some of the difficult issues that also arise in the lives of ordinary people:
Family Members Are Not Always the Best Choice. Britney is famously angry with her dad, who has served as her fiduciary for 13 years. She accused him of being abusive, controlling, and enjoying his power over her. He said he is sorry to see his daughter suffering and has asked for an investigation. Regardless of who is right, their relationship is probably beyond repair. In many cases, the better choice is a neutral fiduciary. A neutral fiduciary does not come with historical family issues or expectations (either too high or too low) that so often come with family relationships. With an outsider handling the details, family members can stay family members. After the trauma of obtaining court-ordered protection, the additional obligations of being the fiduciary often don’t help a family heal.
Money Sometimes Does Not Help. A big pile of money distorts any process, but particularly a protective proceeding like conservatorship. Facts and motivations are difficult to determine when almost everyone involved in the process is on the payroll. In Britney’s case, her father, attorney, doctors, therapists, professional advisers and so on have a financial interest in seeing that she remain under supervision so she keeps coming to appointments and doesn’t retire (as her manager said was her intent) and stop the money train.
Challenges of Mental Illness
Mental Illness Is Tough, Part 1. Guardianships and conservatorships are designed to maintain the affairs of people who are unable to manage their lives at all – those with severe dementia, serious cognitive challenges, or critical disabilities. People who suffer from mental illness do not fit into the arrangement very well. They often can manage so long as they take their medications. But if they are not “med compliant,” they can quickly “decompensate” and become a danger to themselves or others. Constant supervision can be the key.
Mental Illness is Tough, Part 2. When people are seriously mentally ill, medications sometimes stop working, and other strategies need to be explored. Part of the problem: the person with the illness doesn’t realize their situation is declining and is unable to get help without outside intervention. Medication management is a primary catalyst for many guardianships.
Looking Out for Britney
Everyone Wants the Best. Judges, fiduciaries, attorneys, family members. All want the struggling person to get better, be happy, and, most of all, be safe. The tendency is to sacrifice autonomy in favor of safety. In theory, adults can make bad decisions and their capacity to make those decisions is presumed. In practice, the tendency is to first make sure a person is safe, then consider whether freedom to make decisions is a good idea.
Representing a Person with Serious Issues Is Difficult. Britney suggested her attorney never told her she could ask to terminate the conservatorship and dissuaded her from speaking publicly. As her attorney, he was supposed to advocate for her point of view, even if not in her best interest. It’s not unusual for court-appointed attorneys to object to protection without a lot of force. Particularly if the evidence is clear, fierce advocacy uses up resources better used for the incapacitated person. For Britney, though, resources weren’t an issue. For her attorney, it probably would have been in his financial interest to follow his duty and help her fight the conservatorship. What he did and why likely will never be known because he is bound by client confidentiality rules. Our best guess is, he believes she needs protection.
Having a Say
Protected People Should Still Have a Voice. A person under court-ordered protection loses the right to make most adult decisions. But fiduciaries still have a duty to cater to the person’s desires, unless harm could result. People under protection also don’t lose the right to make all decisions. If they retain the sufficient capacity, they can still change their estate plan. That means they can disinherit the person seeking to control them. Yes, Britney could make a will or trust and guarantee that her father would not see a dime of her $60 million estate. (Her kids would be first in line anyway.) She also should have a say in who serves as her fiduciary and as her attorney. According to Britney, up until two weeks ago, her handlers ignored her requests for change. If true, that’s not how it’s supposed to work.
The Grass May Not Be Greener. Britney’s current conservator of the person has said she is not going to resign and is crafting a plan for termination of the conservatorship. In all likelihood, that plan will include mandatory medication management, regular check-ins with medical and mental health professionals, and some kind of financial oversight to ensure no one takes advantage of Britney’s vulnerabilities. Some people do have conditions that require lifelong management to keep them safe. The judge may decide that complete independence poses risks that are just too high. Britney may escape a formal conservatorship, but she’s unlikely to be totally free.