Unless you’ve been living under a rock, you’ve probably heard the recent news about Britney Spears and the #FreeBritney movement.
Why should we care about this?
Let’s go back in time to 2008. This was the year Britney Spears had a widely publicized mental breakdown leading to a series of bizarre and erratic behaviors (we all remember the shaved head). As a result, her family sought a conservatorship through the court system to protect Britney and her minor children from her poor financial and healthcare decisions. The judge who heard the case agreed that a conservatorship was necessary to protect her and her children from harm and appointed a legal fiduciary (called a conservator in California) to manage Britney’s legal, financial, and even medical affairs. Britney’s conservatorship has been in place since 2009, even though she has continued to appear in public, perform, and release new music and branded merchandise.
Over time, however, Britney Spears’ fans and others concerned about her welfare have followed her situation and have come to believe that the conservatorship has been kept in place for too long—and perhaps even encouraged the type of financial exploitation that conservatorships are supposed to prevent. Statements from some of the attorneys involved in the conservatorship over the years, family members, and even Britney herself have created lingering doubts about whether this conservatorship should be kept in place.
On the other hand, those that currently make decisions for Britney, including Britney’s father, claim that this conservatorship remains a necessary intervention to protect her and her children from further harm. Recently, there has been a flurry of court procedures to determine whether Britney should have the conservatorship terminated and be allowed to regain control over her fortune and healthcare decisions, renewing media attention and public interest in her case.
What exactly is a conservatorship?
A conservatorship is a legal means of stripping someone of their right to make certain decisions for themselves. This drastic measure is typically implemented with the best of intentions. Many people who suffer mental health challenges or disabilities, dementia, or extreme physical disabilities require the help of someone who can make informed decisions that are in their best interests. However, a conservatorship is an extreme step and should be approached with great caution as an individual’s liberties are at stake.
A conservatorship, although drastic, isn’t necessarily permanent. If the incapacitated individual is able to prove through medical evidence, testimony, or other evidence that they can now manage their own affairs and make informed decisions that would not be unreasonable, then a conservatorship can be terminated if the judge agrees. Many people consider Britney Spears to be high-functioning and clear-headed, which raises the question why she still needs a conservator. Her case is a lesson why a conservatorship may not be the best approach for most individuals.
What are the alternatives to a conservatorship?
Powers of Attorney
Instead of leaving things up to chance, which could result in an interested person petitioning the court to establish a conservatorship for you, any adult with legal mental capacity can prepare for this situation beforehand. By creating and signing legal documents such as a general durable financial power of attorney, healthcare power of attorney, living will, and Health Insurance Portability and Accountability Act (HIPAA) authorization, an individual can ensure that only the people they choose to manage their affairs if something happens to them is able to do so. Creating these documents is almost always significantly less expensive than a court proceeding to determine your incapacity and appoint a conservator, which can also come with delays and public embarrassment. In addition, you can customize the powers that you grant to someone to your specifications and comfort level. You can often determine when the person will be able to take over your affairs, how you want your legal capacity to be determined, and for how long the power will last. You can also retain the power to terminate (or revoke) the power of attorney.
Living Trusts
Another effective way to reduce the need for a conservatorship is to create a revocable living trust and title your accounts and property in the name of that trust. Similar to a power of attorney, you can be in complete control of the accounts and property in your trust while you are alive and have the mental capacity. But if you were to become incapacitated (as defined within the trust document), then the person that you chose to manage your accounts and property can easily step up and manage without additional court intervention or oversight. Without court involvement, the expense and bureaucracy that often comes with the judicial process will be greatly reduced. Through the use of a trust and power of attorney documents, you can maintain significantly more control than you would in a conservatorship.
Of course, we hope that Britney can regain control of her affairs and her best interests are ultimately met. But regardless of how her case turns out, we can all learn from this. We can and should take steps today to make sure these unfortunate experiences aren’t repeated in our own lives. An experienced estate planning attorney can help you achieve this goal. Santaella Legal Group, serving San Ramon, Danville, Dublin, Pleasanton & the Tri-Valley area, at (925) 831-4840. We’ll help you discuss how, with proper planning, you can ensure that your important legal rights are protected today and well into the future.