The Britney Spears case — What is a conservatorship and could it happen in the UK?
Unless you have been actively avoiding the news lately, you will no doubt have seen something about the case of US singer Britney Spears and the controversy over her conservatorship. It has been played out in the heightened, theatrical manner that many associate with the American court system, particularly when celebrities are involved.
But many of the aspects of the case are not immediately obvious. What exactly is a conservatorship, and why was it required? And could the same thing happen in the UK?
What is a conservatorship?
The term conservatorship refers to a measure under US law that serves broadly similar functions as a Lasting Power of Attorney (LPA) in the UK. That is, it is an arrangement under which someone can legally manage your affairs if, for one of a variety of reasons, you are considered not to have the mental capacity to make crucial decisions on your own behalf.
As with an LPA, a conservatorship can cover both the financial affairs and the welfare of the person in question. Decisions that might need to be made range drastically. It could be in relation to spending your money in your best interests and managing property, investments or business affairs, to deciding on your living arrangements or your health care.
In all cases, the most common reason for such an arrangement is Alzheimer’s Disease or another age-related dementia. However, they could be required for various other reasons, such as brain damage following an accident, the onset of severe mental illness or being in a long-term coma. It can also be required as a result of addictions such as alcohol, drugs and gambling which then prevent people from making rational decisions.
The most striking difference between conservatorship and LPA, however, is that LPA is a proactive arrangement, whereas conservatorship is reactive. This is because an LPA is set up by the person while they have mental capacity, to be activated should it ever be required in the future. A conservator, on the other hand, is appointed by a court in response to a specific situation.
This difference can be far reaching. When you arrange an LPA, you can choose who you most trust to manage your affairs, while at the same time you can set limits on your Attorney’s powers (e.g. you could specify that the family home is not to be sold or set limits on medical care). Since a conservator is not appointed until you have already lost mental capacity, you would not normally be able to set these specifications.
Why did Britney Spears need a conservator, and what went wrong?
In 2008, former teen star Britney Spears was going through a range of personal and mental problems. These included a divorce in which she lost custody of her children, while her behaviour was widely seen as becoming erratic. This included two occasions during the year when she was briefly held at a psychiatric institution.
At that time, her father James filed a request to be appointed temporary conservator, which was granted and subsequently made permanent. He was appointed conservator for his daughter’s personal affairs and co-conservator for her financial affairs.
For much of the intervening period, Britney Spears has continued with her career, but she claims that extreme restrictions were placed on her choices, allegedly ranging from who she was allowed to date to the colour of her kitchen cabinets. Following the growth of a popular #FreeBritney Movement and a television documentary, she brought a court action, requesting her right to appoint her own lawyer in place of the court-appointed lawyer, the removal of her father as conservator and alterations in the terms of the conservatorship, with the ultimate aim of removing it altogether.
The upshot was that earlier in 2021 the court allowed her to appoint her own lawyer. In August 2021, her father announced that he would step down as conservator, but would not specify when this would happen.
Could this happen in the UK?
Clearly a person in the UK who had the foresight to set up an LPA and specified reasonable terms would be unlikely to find themselves in such a position. Assuming, however, that a relatively young person like Britney Spears were to be in this situation without having set up an LPA, the closest equivalent to a conservator would be a Deputy appointed by the Court of Protection.
Like a conservator, a Deputy is appointed by a court, in this case the Court of Protection. If an interested party wishes to be considered as a Deputy, or considers that a Deputy should be appointed, they make an application to the court.
The Court of Protection will reach a decision firstly whether the person in question lacks mental capacity and therefore requires a Deputy, and then who should be appointed as Deputy. If the person applying is considered suitable and no other interested party objects, it is quite likely that they will be selected. However, the court has the right to appoint whoever it chooses. While every effort is made to consider what the person would want, there is no guarantee that the appointee would have been their decision.
Like a conservator, a Deputy’s performance of their duties is supervised. Perhaps the biggest difference, however, is that while a conservator is supervised by the court that appointed them, a Deputy is supervised by a completely different body, the Office of the Public Guardian (OPG).
This is a significant distinction, since an allegation frequently made in the Britney Spears case is that it has been extremely difficult for her to get the court to reverse its original decision. Whether or not this is true, the perception seems to be that the court is heavily invested in maintaining the status quo.
In the case of a Deputyship, the OPG certainly has no such investment and is much more likely to recommend that the court changes or cancels the arrangement if this should be considered advisable.
So is a Deputyship better than a conservatorship?
Of course it is entirely possible that a person judged to have lost mental capacity could end up with a Deputy they consider to be unsuitable. However, there is far more chance of getting a Deputy replaced or the need for a Deputy cancelled, than seems to be true of the Britney Spears case.
However, this does not mean that a Deputyship is an ideal option. Not only does it involve ongoing costs, but it can take up to six months to be put in place. This means for all that time no-one has the legal right to manage the financial or welfare affairs of the person who has lost capacity.
Our LPA expert, Rebecca Newman, commented on the case. “Although this is unlikely to happen in the UK, it is still vital to organise your LPA so that you, and not the court, choose who is appointed to manage your finances and welfare, and whether any of their standard powers are to be restricted or widened.”
In summary, the ideal solution is to appoint one or more people whom you trust as your LPA — and the best time to do that is now. Please contact Rebecca Newman to talk you through the process. If you need to provide for someone who has already lost mental capacity and they do not have an LPA, Rebecca and her team can also help you through the process as quickly and efficiently as possible.