Article by MWB Elder Law Attorney Kathleen Rodberg
Britney Spears has been in the news A LOT. Not just recently via documentaries on Hulu and NetFlix, but nearly non-stop since her debut single “…Baby One More Time” premiered in 1998. Historically, the media circus surrounding Ms. Spears focused on her career, who she was dating, and how she spent her free time. However, recent stories focus on a topic that rarely receives so much national attention: guardianships or conservatorships.
Some states, including North Carolina, use the term “guardianship,” whereas other states, including California, use the term “conservatorship.” The arrangement is essentially the same—a court supervised process in which some rights and responsibilities are taken away from an individual and assigned to another person. For purposes of this blog, I am going to use the term conservatorship unless specifically speaking about North Carolina.
Is Ms. Spears’s situation really another case of toxic conservatorship and criminal behavior? Maybe, but maybe not.
Since becoming a licensed attorney in 2012, I have practiced exclusively in the areas of estate planning, administration, and elder and special needs law. This includes a great deal of adult guardianship work in North Carolina. I have represented petitioners, interested family members, guardians, and frequently serve as guardian ad litem for respondents. Guardianship laws and issues have been on my radar for nearly a decade.
Because of my experience in this area of law, I have been asked many times about my opinion regarding Britney Spears’s conservatorship. Is Ms. Spears overprotected? Or is she stronger from the support a conservatorship can provide? Most people expect me to scream and shout #FREEBRITNEY. However, I must disappoint.
The reason for this is not because I have a strong opinion about whether Britney Spears should or should not have a conservator. The reason is simple: I (and most other members of the public) simply do not have enough information about the situation to render an informed opinion. Much of the information about the Britney Spears conservatorship is speculative, one-sided, and/or unverified by objective evidence. As an attorney who practices in this area of law a great deal, the five takeaways I hope people will receive from this blog are as follows:
- Conservatorship Reform Is Needed Nationwide. A 2017 New Yorker article entitled “How the Elderly Lose Their Rights” highlighted a network of self-dealing, kickbacks, and corruption in Nevada. I had a very frustrating guardianship case involving a Nevada guardianship that was being transferred to North Carolina just prior to the publication of that article. The revelations revealed in the article were not all that surprising to me, given my personal experience at that time dealing with the Nevada guardianship system.
I have a current guardianship matter that was transferred from New Jersey. The individual under guardianship has siblings who care for him, can read and write, he worked for many years, and understands that he needs assistance handling his affairs. Had I met him before a guardianship was put in place, I likely would have recommended an alternative to court-ordered guardianship—like a power of attorney. However, guardianships are oftentimes harder to undo after-the-fact (though his family and I will likely try to eliminate, or at least lessen, the guardianship soon). Guardianship arrangements for younger individuals should not, by default, be in place until the world ends—they should only be in place for as long as it is necessary.
I fully recognize the need for reform. As past chair of the NCBA Elder and Special Needs Law Section I am personally involved in supporting some of those ongoing reform efforts in North Carolina. However, just because some guardianships are unnecessary or abusive does not mean that is the case for all guardianships.
- Conservatorships Are Different in Every State (and sometimes, every county). Conservatorship laws, terminology, structure, and practice vary greatly from state to state. For example, in North Carolina there are three types of guardians—a guardian of the person, who makes medical and personal decisions; a guardian of the estate, who makes financial decisions; and a general guardian, who can make both personal and financial decisions. Michigan, in contrast, has guardianships for personal decisions and conservatorships for financial decisions. Some states have separate approaches to financial management for those who have developmental disabilities as opposed to elderly individuals with dementia.
Even within North Carolina, the counties vary widely in how guardianships are approached. I have been very fortunate in Western North Carolina to work with Clerks of Superior Court who take guardianship matters very seriously and recognize that guardianship proceedings are, at their most basic level, the stripping of certain fundamental and constitutional rights.
Most of my guardianship cases now result in “limited guardianships,” wherein the person subject to guardianship retains certain rights (in some cases, many rights). The guardianship is narrowly crafted to provide the least amount of court intervention necessary. Unfortunately, I know from communicating with colleagues elsewhere in the state that this is not the case in every county.
These differences among the states are so vast that it is nearly impossible, even for attorneys who regularly practice in adult conservatorship matters outside of California, to know enough about the inner workings of California’s conservatorship system to opine about Ms. Spears’s situation.
- You Don’t Know What You Don’t Know. This is a good phrase to keep in mind for many aspects of life, but particularly with respect to the Britney Spears conservatorship. Spears has made a number of very alarming allegations. It’s possible that all of them are true, but it’s also possible that none of them are true. Like many things in life, the truth is probably somewhere in the middle.
For all of the allegations that have been made, the public has yet to see verified recent medical reports, historical medical records, or other assessments that would speak to the reason for the implementation of the conservatorship and possible reasons for its continuation. Determining when a conservatorship should be implemented is a tricky thing. We all should be entitled to a certain level of autonomy, which includes making poor decisions on occasion.
However, there is a difference between someone who makes a poor decision, despite being capable of understanding the risks, and someone who makes a poor decision because they are incapable of appreciating the risks, consequences, and likely outcomes of that decision. Ms. Spears may or may not fall into that latter category, but the point is that there simply isn’t enough information in the public arena for us to know one way or the other.
- Lawyers Aren’t Always Bad. Bad lawyer jokes aside, most attorneys that practice in elder and special needs law are wonderful people. I often tell clients who are petitioners in a guardianship matter that the goal should not be to “win,” but to get the best possible outcome for the person allegedly in need of assistance. I would like to think that most of my elder and special needs law colleagues around the country provide the same advice.
Again, though it is entirely possible that Ms. Spears’s conservatorship is the result of rather vast and lengthy corruption and conservatorship abuse, one must pause to think about the number of people involved in Ms. Spears’s conservatorship and the level of conspiracy that would be required to maintain the conservatorship if she truly didn’t need it.
At this point, from information in the public sphere, we know that family members, ex-boyfriends, doctors, lawyers, and judges have all been involved with Ms. Spears’s 13-year conservatorship. It is hard for me to imagine all those people, particularly those with professional licenses like lawyers or doctors, would risk their careers and reputations to maintain an entirely unnecessary conservatorship. Is it possible? Sure. But it doesn’t seem likely.
- …But Lawyers Need to Do a Better Job. Two constant issues that has concerned me throughout Ms. Spears’s conservatorship are the court’s refusal, until recently, to allow her to (1) select her own attorney and (2) to have a great deal of influence in who will serve as conservator. I understand the need for a court to approve, or disapprove, of a particular lawyer’s involvement. I have, unfortunately, seen situations where those under guardianship “hired” attorneys to “remove” the guardianship, when the likelihood of success was nearly zero and the person had no funds to pay for a lawyer, resulting in them agreeing to pay the lawyer via property (e.g. signing over a car title) in payment for services.
However, the threshold for hiring your own attorney is rather low, as it should be. I find it hard to fathom that in 13 years, Ms. Spears only recently gained the ability to understand how to hire her own lawyer and to make an informed decision while doing so. Hiring an attorney to represent you in a conservatorship matter is a very personal thing. It is imperative that the person be as zealous an advocate for you as possible and that you trust them with some of your most personal information, including medical records. Ms. Spears’s negative experience with the conservatorship and the deterioration of the relationship with her father might have been avoided had she been provided the opportunity to select her own zealous advocate earlier in this process.
By extension, it’s hard for me to imagine why Ms. Spears’s repeated requests for a conservator other than her father were ignored or dismissed until this year, when her father was suspended as conservator. We know through court filings and transcripts that her relationship with her father deteriorated years ago, that their relationship has always been fraught with issues in Ms. Spears’s adulthood, and that the court was made aware of Ms. Spears’s concerns repeatedly. It is commonplace for third-party professionals to serve as guardian or conservator instead of a family member. Increasingly, family members see the benefit of separating these roles—as a loved one and as a legal decisionmaker. It can be difficult to love and support the individual as a family member while also being the “bad guy” who makes tough decisions. Those family dynamics can also make it harder for the conservator to be objective.
Lawyers are involved with conservatorships at all stages of the process. Whether it be lawyers who craft conservatorship laws, the professional rules of conduct for lawyers, representing a party in a conservatorship case, or a judge in a conservatorship case, the level of inconsistency in the application of laws and differences from state-to-state have created a complex web in which it is difficult to educate the public about conservatorship so that they are better equipped to differentiate between an unwanted, but necessary conservatorship, and conservatorship abuse.
I look forward to following Ms. Spears’s conservatorship proceedings and hope that, whatever the outcome, it is one in which she feels empowered and supported rather than suppressed. In the meantime, I know that I (and I hope others) will reserve judgment for those involved if/until we have sufficient facts to render an opinion. In the meantime, if you want to want to learn more about efforts to improve the guardianship system in North Carolina, I encourage you to check out Rethinking Guardianship (https://rethinkingguardianshipnc.org/) and the North Carolina Guardianship Association (https://www.nc-guardian.org/).