The Truth About Conservatorships and Guardianships
The “FreeBritney” movement sheds light on legal arrangements that are meant to offer protection—despite how pop culture portrays them.
Whether you are a lifelong Britney Spears fan or you’ve just caught wind of the #FreeBritney movement (after the New York Times documentary “Framing Britney Spears” aired in February), it’s safe to say the pop star has put conservatorships—for good and bad—on the map.
For those who aren’t familiar: Spears was put under a legal conservatorship after her very public mental health breakdown and psychiatric hospitalization in 2008. This legal arrangement put her father (and for a period of time, a lawyer who served as co-conservator) in control of her financial and personal decisions—reportedly including when and where she can perform, how much she earns and keeps from those earnings, how she parents her two sons with her ex, Kevin Federline, and even what medications she takes. Currently, she’s in a legal battle trying to change the parameters of the conservatorship—most notably, removing her father as the conservator.
Sounds like a very short leash for an adult, you might think. But such regulation can sometimes be necessary and is meant to help the person it’s designed to protect, says Wendy Cappelletto, Esq., director of policy and benefits in the Office of the Public Guardian of Cook County, IL. We’ll explain why here.
What Is a Conservatorship, Anyway?
A conservatorship is a legal arrangement in which a U.S. state court appoints one person (the conservator—in Spears’s case, her dad) to care for another (the conservatee, here the embattled pop star). Some states may use the word guardianship instead.
The different types of conservatorships or guardianships vary state by state, but generally speaking, some arrangements put the conservator or guardian in charge of a person’s finances and estate—including paying bills and selling a home—while others put them in charge of personal decisions—including where a person lives and medical care. In Illinois, for example, there can be a guardian of the estate or guardian of the person, says Cappelletto. The guardian or conservator can also be put in charge of both.
Spears’ experience doesn’t paint conservatorships in the best light. Nor did another pop culture phenom, I Care A Lot, a Netflix movie that was also released in February 2021 about a professional legal guardian who puts hundreds of elderly people into care facilities against their wills in order to steal money from them. So, it’s pretty tough in the current media environment to view such legal situations favorably.
But conservatorships and guardianships exist to protect vulnerable people, and can actually be necessary to give those with progressive, neurological conditions like dementia or even psychosis the help they need.
Who Benefits From A Conservatorship?
The main purpose of a conservatorship or guardianship is to protect a person who cannot take care of themselves. A loved one (or an individual speaking for themselves) can request a conservatorship or guardianship, and then the issue will be taken to a court to determine if the person does, in fact, require this sort of financial and/or personal guidance and oversight by another adult, and if so, who would be the best-suited person to oversee their affairs.
Cappelletto says that dementia and its related fallout is probably the most common medical condition that prompts a conservatorship. People with intellectual disabilities or mental illness may also benefit from a legal guardian or conservator, she adds. This isn’t an exhaustive list by any means: Other conditions and circumstances surely exist that might make someone unable to take care of themselves, but typically, some sort of cognitive disability, health condition, or injury that impacts a person’s mental capabilities is involved. (Problems with addiction, for example, don’t generally make the cut.)
Typically, conservatorships and guardianships are used to protect older adults. But sometimes, young people may rely upon them—and with good reasons. Sunny Valencia, Esq., an estate planning and guardianship attorney in Henderson, NV, says she has worked with a lot of 18-year-olds who need guardianships. “They have Down syndrome or autism. Once they turn 18 they’re legally adults, and their parents can’t make any decisions for them. The only way for the parents to make decisions for them is to get a guardianship,” she says. Spears, who was in her 20s at the time her conservatorship was put in place, is an example of how a psychiatric illness may prompt a concerned party to ask for a conservatorship.
Conservatorships may also be needed, no matter what a person’s age, in the event of an accident or illness, requiring someone else to look after their finances and make medical decisions for them. A coma and stroke are two potential medical emergencies that might lead to a guardianship, either permanently or temporarily until the person recovers.
When considering here needs to be some sort of diagnosis and evaluation from a professional who can determine what the person can still do themselves, as well as the decisions they can and cannot make, Cappelletto explains. “This is important because if they retain the ability to make some decisions, then the court shouldn’t be able to take away those rights,” she adds. If a person is still capable of doing some things for themselves, the guardian may be put in charge of specific aspects of their finances and health, but not others.
The Legal Process Of Establishing A Conservatorship
If you’ve seen I Care A Lot, you might think that it’s really easy for a person (with good or malicious intent) to waltz into a court and claim they need to be in charge of another person’s estate. It’s really not that easy, though, Cappelletto says.
Let’s start at the beginning: Typically, multiple people can file for or request a conservatorship. A spouse or domestic partner, relative, friend, a state or local entity, or even, in some cases, the potential conservatee. Once it’s been proposed that a person needs help taking care of themselves or their finances, the courts get involved. “The process will vary from state to state, but there should be due process,” Cappelletto says. “These are rights being taken away.”
The common thread is that it all comes down to assessing a person’s ability to make decisions. Medical professionals will need to be called in to give their opinions (the number and type of professional required varies by state, too). In some states, there’s a panel of people that assesses the person, Cappelletto says. It’s not a decision that’s taken lightly, she adds, and the legal system always errs on the side of maintaining people’s freedoms as much as possible.
In many cases, once there’s a petition pending, the potential conservatee is given legal counsel, Cappelletto says. They’re told about the petition and read their rights, including their right to request a jury trial. If the person does not agree to having a conservatorship or guardianship, they can fight it. (People who are very ill or mentally incapacitated may not be able to go through this process, however.) In Spears’ case, it’s been reported that she wanted to oppose the conservatorship, but accepted it to have the best chance at being able to still see her children.
How things ultimately shake out if a person opposes being put under a conservatorship will vary by state, county, and the judge overseeing each case and deciding the ruling.
How Is Someone Appointed to the Role of Conservator?
If it’s been determined that the person needs a guardian or conservator, the court then goes through the process of choosing the best person for the job. In some cases, a conservatee may nominate someone to be their guardian; in other cases, the court will choose in a certain order of preference. In California, for example—where Spears lives—this is the order in which the courts consider people for the role: spouse or domestic partner, first; followed by adult child, parent, sibling, or any other suitable person the law says is OK; and finally, as a last resort, a public guardian that works for the county or state.
Some states then require you to give notice to all living relatives with an interest in the estate, Valencia says. “In Nevada, if we can’t find anybody, we have to publish in the newspaper for three weeks.”
Once a petition for conservatorship is approved, there are a lot of legalities to work through before it can go into effect. Many states require the conservator to file an inventory of assets, noting everything the estate consists of—including bank account balances and any projected future assets. In Illinois, you have to do an accounting of every penny that went in and out of the estate each and every year.
“Many courts require budgets, so you have to give an approximate budget of what you think expenses will be, and if you don't stay within the budget, the court can go after the guardian and make them reimburse the estate,” Cappelletto says. “You have to get permission from the court to list a property, getting an independent appraisal and giving notice to relatives if they want to buy personal property.” If the conservatee is able to stay in their own home, that’s ideal, Cappelletto says. “If they have enough money for care in their home they'd stay in their home.”
More states are starting to make laws that protect conservatees, who tend to be older people with conditions like dementia. For example, Nevada changed its relatively lax laws around establishing guardianships after a series of guardianship fraud cases (which prompted the 2018 documentary, The Guardians). One of the changes in Nevada law is that now, if a petition for guardianship is filed for a person, they automatically receive a free attorney, Valencia says. “They’re there to protect the person. That has been the best thing for Nevada.”
Other safeguards your state may have in place include requiring the conservator/guardian to have legal representation. “If an attorney is touching a case and they see something funky going on, their license is on the line, too, and they have a duty to the estate,” Cappelletto says. “There have been cases where an attorney has had to report their own client after looking at the accounting and seeing the financial records were not right.”
In many states, every aspect of a guardianship is monitored, Cappelletto says. Not only does that protect the conservatee, but it also helps the conservator avoid accidental legal issues, or scuffles with other family members who are looking to gain something financially from a vulnerable elder relative.
If you’re looking for information about conservatorship arrangements in your state, check out the National Center on Law and Elder Rights, which can help direct you to the kind of resources you’ll require if you think something fishy is going on with a conservatorship or guardianship.
How To End A Conservatorship
This is the part Spears is reportedly most interested in: ending (or at least removing her father from) a binding, legal guardianship. A conservatorship usually concludes when either the person dies or doesn’t need the legal care anymore, Cappelletto says. For example, if a person suffered a traumatic brain injury, they may recover enough that they are able to make their own decisions, or at least some of them. Or maybe a person with mental illness found the right treatment regimen and can now function well. In both cases, the conservatorship may be ended or dialed back, depending on the situation. “We’ve had cases where people no longer need a guardian and those are big success stories,” Cappelletto says. “We really encourage it, if it’s appropriate.” (This is not likely, it should be noted, with a progressive illness like dementia.)
The conservatee, the conservator, or a relative or friend of the conservatee can ask the court to end the legal arrangement. An evaluation process will take place to determine if doing so is in the best interest of the conservatee.
Valencia says it’s not necessarily difficult to end a conservatorship—sometimes, it may just take one doctor ruling that the person is capable of making their own decisions again. Again, the requirements and process will vary from state state,
There’s a lot of speculation about why it’s so hard for Spears to make changes to her conservatorship, and whether or not she really needs or wants to be under one. She hasn’t spoken publicly about it, and while fans may make assumptions about her and her health based on what she portrays to the world, we’ll probably never know what’s going on behind the scenes. Some observers have suggested that her legal arrangement pays some folks involved hefty fees, so there’s little motivation for them to completely dissolve it. Of course, that’s just a theory.
What To Do If Your Loved One Needs Legal Care
If you want to propose a conservatorship for a loved one who cannot take care of themselves anymore, Cappelletto says it’s key to work with a good attorney who knows this area of law well. This is the best way to make sure the process goes smoothly, and both advances your loved one’s interests while keeping you from making any accidental legal missteps.
If you don’t know an attorney who works in this area, Valencia recommends asking for recommendations from people you trust. You can also contact your state bar association—this website lists contact info for each state’s. to ask for recommendations. “If they are referring to you, that usually means they don't have complaints against them,” she says.
According to both Valencia and Cappelletto, it’s best to avoid needing a conservatorship in the first place by planning ahead. “The way to avoid guardianship from the very beginning is to have your estate planning in order and have a power of attorney in place and healthcare power of attorney,” Valencia says. If you decide on those things early on, when it comes time, there will already be a clear plan in place. It’s a good idea for anyone at any age—life doesn’t always go as planned, and we’d all like to have a say in who is responsible for our care. It’s a good idea to start having these conversations with your loved ones as early as possible, and encourage them to get their affairs in order when they’re healthy and able to make these decisions about their future care.
As for the #FreeBritney movement, the pop star is set to testify in an upcoming conservatorship hearing this summer. Hopefully, we’ll learn more about what she truly wants, and whether the system will work for her in her best interest, as it’s intended to.
Legal Process in California: Judicial Council of California. (n.d.) “Conservatorship.” https://www.courts.ca.gov/selfhelp-conservatorship.htm
Basic Facts About Conservatorships: Family Caregiver Alliance. (2012.) “Conservatorship and Guardianship.” https://caregiver.org/resource/conservatorship-and-guardianship/
Britney Spears’ Conservatorship: The New York Times. (2016.) “Is Britney Spears Ready to Stand on Her Own?” https://www.nytimes.com/2016/05/08/arts/music/is-britney-spears-ready-to-stand-on-her-own.html