It’s usually rare for the worlds of estate planning and pop culture to cross paths, outside of an Oscar’s Remembrance reel. However, the #FreeBritney movement has thrown a spotlight on conservatorship (also known in Texas as guardianship), which falls under the estate planning umbrella. This blog has recently covered Britney Spear’s conservatorship, discussing when a guardianship may be needed and some alternative documents to a guardianship. However, Friday’s news of the termination of Britney’s conservatorship opens up whole new opportunities and responsibilities for Britney, regarding her assets and her estate planning. The news that has followed outlines that Britney intends to pursue legal action against her conservators (guardians), alleging mishandling of finances. While much of the records have been redacted, Britney may still continue to pursue her guardians for a breach of fiduciary duty.
What’s Fiduciary Duty
When a guardianship (conservatorship in California) is established, the Ward (the one who will be cared for) is appointed a Guardian (someone who will take care of the Ward). In Texas, a Guardian is required to sign an oath, stating they will faithfully discharge their duty of care to the Ward. Texas law defines this duty of care as a fiduciary duty. The law in Texas defines a “fiduciary duty” as the highest standard of care. Meaning, the guardian must act in the best interests of the Ward. Everything they do must be to make the Ward comfortable, safe, and provided for.
This sounds pretty standard right? Anytime you are designated as a fiduciary, imagine someone doing the same job on your behalf, and then do a better job than you would want done for you. That’s a fiduciary duty.
The Relationship Between Fiduciary and Ward
When determining who to appoint as a guardian, the court usually looks to those close to you to determine who would be best. The presumption is your close relatives are the ones with your best interests at heart. Courts usually first appoint spouses (if you are married), then children (if they are not minors), then parents, then siblings, etc. One of the things the court should take into account are things like the health of the potential-guardian. Meaning, if you have mobility issues, the court will not likely appoint someone who also has major health concerns to handle your day-to-day care. But, if that potential-guardian is great at managing money, the court may appoint them the guardian of your assets.
Back in 2008, the California court should have taken a hard look at Jamie Spears to ensure he had the financial savvy to manage a fortune as vast as Britney’s. Guardians who are ill-equipped to effectively manage/invest large estates on behalf of their wards can be at risk of breaching their fiduciary duty. Even more so when there are allegations of mismanagement and misappropriation of funds.
Moving Forward
As discussed in our prior post, a full guardianship of the person and estate (much like the conservatorship Britney has been under) removes the Ward’s ability to act on their own behalf. In Texas, this means a ward under a total guardianship would not be able to manage their finances, vote, have a driver’s license, determine where they live, or get married. Now that Britney’s conservatorship has been removed, all these basic adult responsibilities are hers once more. And while she may choose to employ people to drive her around, manage her finances, and help her buy a home, ultimately Britney is once again her own keeper.
Things to Consider
It’s never fun to consider a time when you might need someone to take care of you. But, having a plan and expressing your wishes on who you would want (should the need arise) is part of having a comprehensive estate plan, and provide you peace of mind knowing you have made your wishes known to the court. Nielsen Law PLLC provides family-focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For help with your estate plan, please contact our office to schedule an appointment.
