Pop singer Britney Spears’s conservatorship woes highlight an important lesson for all Americans — guardianships aren’t always the answer. Some attorneys argue they never are.
The performer, known for her hit songs since the late 1990s, has gained tremendous support from a movement called #FreeBritney, whose focus is aimed at giving Spears back control of her affairs. Britney Spears is in the process of fighting in court to remove her father, Jamie Spears, from managing her career as the co-conservator of her estate (he stepped down from his role as conservator of her person in September 2019 because of his own personal health problems).
The conservatorship was established in 2008, after years of scrutiny against the singer and eventually a public meltdown. In November, an attorney representing the performer said Spears was “strongly opposed” to her father as conservator and would not perform until he no longer managed her career, the New York Times reported.
Her ordeal, which has been depicted in a New York Times documentary, called “Framing Britney Spears,” brings attention to an issue that usually impacts the elderly or very ill.
Conservatorships, also known as guardianships, are a “last-case scenario,” said Brian Tully, an attorney specializing in elder law and life care planning. “It is the last thing you want to do, especially with an older loved one,” he said. Essentially, a conservatorship sends the message that an individual is incapable of taking care of himself or his assets and many of his rights are taken away as a result.
These established relationships are difficult to terminate and can become problematic, especially when someone is eventually capable of handling their lives again. “I have been doing this 23 years and I haven’t seen a guardianship case be undone,” Tully said.
Jamie Spears’ attorney, Vivian Lee Thoreen, who represented him in the early years of the conservatorship and then recently rejoined his legal team, echoed those statements in the New York Times documentary.
The person for whom the conservatorship is serving has to prove he or she no longer needs this oversight, said Scott Rahn, managing partner of law firm RMO. It is possible to terminate a conservatorship for an older person, such as the case where someone suffered a stroke that impaired their cognitive or physical functions and then recover. But these individuals have to build a case that they’re capable of controlling their own affairs, which includes documentation and expert witnesses.
“The judges that sit and hear these cases take their role in determining if someone’s rights should be taken away very seriously, and with empathy and concern for making sure that there are not less restrictive options,” Rahn said.
There are alternatives individuals and their families can plan for so that they can avoid a conservatorship, Tully said. Estate documents such as a power of attorney and health care proxy allow individuals to have their wishes met, and enact an agent they trust to follow through with their requests if they were to become incapable of managing their finances.
People can create these documents online, but should work with an attorney that specializes in elder law to fill in the holes that online estate planning programs may miss. For example, in the health care proxy there is one sentence that has to be written in the document that states the agent is aware of artificial hydration and nutrition wishes so that they can handle feeding tube issues should those arise. They should also address HIPAA requirements in that document.
Comparatively, the power of attorney, which grants someone the power to act in another person’s interest, could be “a minefield,” Tully said. These documents can be quite complex and may vary depending on the state.
Still, there are a few key components everyone should be aware of — for example, a gift rider, which allows the agent to protect assets for Medicaid purposes or to mitigate gift and estate taxes. The power of attorney should also be “durable,” which means it continues on after a person has become incapacitated. (Comparatively, a nondurable power of attorney is only eligible while the individual for whom it is serving is capable of making her own decisions).
There are occasions when a conservatorship may be necessary, said Kerry Peck, managing partner of law firm Peck Ritchey. A frequent scenario is when someone is suffering cognitive impairment and becomes — or is close to becoming — the victim of financial exploitation, perhaps from a caregiver, a family member or scammer.
Who presides over the conservatorship is also a crucial factor, Rahn said. Family members might want to take on that responsibility, but it could be stressful, time consuming and difficult, he said. Choosing two people — one to handle the finances and another for the health care — could be an option, but they would have to work well together as the one managing medical needs might need funds to pay for that care. There are fiduciaries, such as trusts, who can act as the agent, but that also comes at a greater cost than a family member would.
Britney Spears’s conservatorship was created to protect the ‘90s icon from those who would not act in her best interest, her father and his attorney have said on numerous occasions.
“From the beginning, the court has closely monitored Britney’s situation,” Thoreen told the Associated Press. A “dedicated court investigator” has conducted annual accountancy and reviews of the situation, she said.
While Jamie Spears has not stepped down from his position as co-conservator of her estate, nor has he been removed by the court, Los Angeles Superior Court Judge Brenda Penny did recently grant The Bessemer Trust the role of co-conservator of Spears’ estate, which would allow it to act in the best interest of Spears and her finances, the Associated Press reported. Removing her father will be a separate issue, Spears’ attorney said.
“The way you avoid [a conservatorship] is to plan in advance with an experienced elder care attorney so that you get the right language and documents in place,” Tully said. “That way you’re in charge, you’re in control, you pick the people you want to help, you save time and save money.”