Even if you do not listen to pop music, it has been hard to ignore the recent news about Britney Spears and the #FreeBritney movement trending on social media. What is this movement all about? And why should average Americans care? Let’s take a walkthrough of conservatorships and some of their pitfalls.
In 2008, pop singer and superstar performer Britney Spears had a widely publicized emotional and mental breakdown leading to a series of bizarre and erratic behaviors. As a result, her family sought a conservatorship through the California probate court system to protect Britney and her minor children from her poor financial and healthcare decisions.[1] 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 her 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.
Conservatorship (a.k.a. Guardianship)
A conservatorship, otherwise known as guardianship in Texas, is a legal means of stripping someone of their right to make certain decisions for themselves. Texas, like many states, has two flavors of guardianship (conservatorship) – guardianship of the person and guardianship of the estate. In both cases, the person who has the guardianship/conservatorship set up on their behalf (called the ward) is not legally allowed to make their own decisions (either financial, medical or personal). Sounds pretty drastic, right? Yet, a guardianship is typically sought 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 or guardianship is an extreme step and should be approached with great caution—an individual’s liberties are at stake. Texas, like every other state, has strict rules around the creation of a guardianship, and always endeavors to implement the least restrictive alternative first.
It is important to understand that a conservatorship is not 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 look at Britney Spears today and wonder how somebody who is as high-functioning as she is could still have a conservator. Her case is a lesson in why a conservatorship may not be the best approach for most individuals. Thankfully, there are several lesser restrictive alternatives to a full conservatorship/guardianship.
Powers of Attorney
What are the alternatives to a conservatorship? 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, should something happen to them, will be able to do so. It is almost always significantly less expensive to create these documents 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.
Pre-Designation of Guardian
Sometimes a conservatorship or guardianship is unavoidable, and having a plan can have a long lasting impact. By signing what is known in Texas as a pre-designation of guardian, you can tell the court ahead of time who you want to act as your guardian/conservator. Additionally, you can disqualify certain people from serving as either the guardian of your person or of your estate. Looking back to 2008, it was clear Britney was in need of aid, but that doesn’t mean her father was the conservator of her choice, and a document like this could have prevented Jamie Spears from being appointed as her conservator in the first place. If like Britney you haven’t shared your wishes in this form, Texas law generally looks to your spouse, children, parents, or siblings to determine who to name as your guardian. These people may not be your first choice, so taking the time now can help the court down the road.
Conclusion
We all hope that Britney’s best interests are ultimately met and that she can regain control of her affairs. But regardless of how her case turns out, each of us can and should take steps today to ensure that the unfortunate experiences that she has endured are not repeated in our own lives. Working with an experienced estate planning attorney is crucial to achieving this goal. Contact us to discuss how, with proper planning, you can ensure that your important legal rights are protected today and well into the future. Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information, and to learn about our firm, please contact us. We look forward to working with you.
[1] The terminology for this kind of legal process varies from state to state and may be referred to as a guardianship.
