By: Madeline Louis
For over a decade, pop artist Britney Spears was under the conservatorship of her father, James Spears, as a result of her struggles with mental health. The conservatorship, which went into effect in 2008, made Britney’s father solely responsible for—and gave him full legal control over—all of Britney’s personal and financial affairs. Britney actively challenged the need for the conservatorship for nearly 5 years. It wasn’t until recently—and not before a long fight that captivated the public—that Judge Brenda Penny of the Los Angeles County Superior Court ruled that Britney’s conservatorship was no longer required. As a result of the #FreeBritney movement, a campaign started by fans and allies in attempts to help Britney out from under the control of her father, people have begun to take notice of some troubling aspects of inflexible conservatorship law.
What even is a conservatorship? By definition, a conservatorship is “the appointment of a person for the management of the property or assets of an incompetent or incapacitated person.” Conservatorships can take a few different forms, for example, Britney’s conservatorship was a general conservatorship under which her father had full authority over her finances, physical autonomy, health, and all other significant decisions. Other forms include financial conservatorships (i.e., authority over the conservatee’s finances), physical conservatorships (i.e., authority over the conservatee’s health and life), and limited conservatorships (i.e., authority over some specific aspects of the conservatee’s life).
Individuals who are most often placed under conservatorships are disabled, elderly, recovering from a traumatic injury, or have difficulty managing their own affairs due to severe mental illness or deficiency. It is estimated that 1.3 million adults are under legal conservatorship in the United States. While the conservatorship process varies across jurisdictions, it generally begins with someone submitting a petition and evidence of the need for a conservatorship. It is then up to a judge to decide whether an individual is incapacitated or incompetent.
So, what is the problem? Three glaring issues with conservatorships are overuse, inflexibility, and permanence. There are many instances in which conservatorships are necessary, but in reality, conservatorships are too often relied upon when an individual simply needs help or guidance in making decisions, not a legal conservator. Additionally, many conservatees are actually capable of making many choices for themselves. Where an individual is not entirely incapacitated, a judge ideally would limit a conservator’s authority to cover only the necessary aspects of a conservatee’s life. Unfortunately, however, authority is rarely limited in practice and conservatees are often stripped of the independence they can manage. Finally, once a conservatorship is created, getting rid of it is near impossible, even when a conservatee has recovered or made substantial progress (e.g., Britney Spears). This last problem is easy to dismiss by those who believe a conservatee can just “sue” to change it. This ignores the fact that doing so would require a conservatee to make personal and financial decisions that are prohibited under the very legal entity they seek to change.
Advocates for people with disabilities have been pushing for reform for years, and thanks partly to Britany Spears and the #FreeBritney movement, there may be hope for change sooner rather than later.
Madeline is currently a 3L at Arizona State University’s Sandra Day O’Connor College of Law. She is interested in pursuing a career in felony prosecution after passing the bar and hopes to be a judge one day. Madeline is busy studying all things criminal law. Her personal interests include hanging out with her two miniature Australian shepherds, golfing, and traveling.
Law Journal for Social Justice 