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Enough to drive you crazy: controversy surrounding conservatorship

Reasons to choose Wilson Browne

For the last 13 years pop star Britney Spears has been under a conservatorship arrangement governing her personal and financial affairs.

Her father was initially put in charge of both parts in 2008 after widespread concern about her mental wellbeing.

There has been a great deal of coverage over the past few months with the star stating that the conservatorship should end as the agreement is “abusive”. This has even led to wider concerns from fans starting the “Free Britney Movement”.

The specific facts of Britney’s case are unbeknown to us however, it raises important points and information in relation to protecting vulnerable people in England and Wales. The case highlights that vulnerable people should have their best interests taken into account and their voices heard.

Lasting Power of Attorneys

Wills take effect when an individual dies, financial assets distributed in accordance with the individuals Will or under the Rules of Intestacy.

Powers of attorney take effect when the individual is still alive. An individual can appoint an attorney(s) to come into effect under English and Welsh law when they are no longer able to make the decision themselves due to lack of capacity.

There are two types of lasting powers of attorneys. The first one relates to Property and Financial affairs. This can be used to deal with property matters and paying bills for example. The second relates to an individual’s Health and Welfare.

Attorneys for the latter can make decisions regarding what food the individual can eat, who can visit the individual, gives them access to medical records and decisions regarding life sustaining treatments.

It is important to highlight that when doing a lasting power of attorney, the individual is choosing which attorney they want to manage their affairs and who they trust to act in their best interests.

Deputyship

In Britney’s case, a conservatorship was appointed by a judge to manage financial affairs and aspects of the stars’ daily life. The equivalent to this is in the UK is a deputyship, which is applied for at the Court of Protection for someone who lacks mental capacity.

The Count can appoint a deputy who isn’t a professional but the point is, it may be someone that the individual would not have necessarily chosen themselves.

Under the Mental Capacity Act 2005 there are principles in Section 1 of the act which deputies must comply with. This includes:

  • Any act done or decision made under the provisions of this act must be done in the individual’s best interest.
  • Anything done for the person should be the least restrictive of their basic rights and freedoms.
  • An adult must be given all opportunities for help before they are considered unable to make decisions.

This shows that deputies are under a high standard of care when making decisions.

You can find the principles under Section 1 of the Mental Capacity Act here

Differences between Deputyship and Power of Attorney

A major difference between the US conservatorship and England’s deputyship is that deputies are not entitled to remuneration unless the court authorises it.

In the US Britneys Conservators are able to take a percentage of her income, which in effect makes it a profitable business model. This is a major cause for concern including abuses of power.

There are arguably more safeguarding measures regarding deputies than for Attorneys as they have to report to the Office of the Public Guardian giving Attorneys more opportunity for financial abuse.

An applicant for a deputyship can be anyone over the age of 18 however, the court must decide whether the Deputy is suitable for the role and this can take up to 6 months compared to a Lasting Power of Attorney which has a turnaround time of 8-12 weeks

Conclusion

Britney Spears case concerning her conservatorship has gained lots of media attention regarding a matter people know little about. As how can Britney be deemed to lack capacity while still able to work at her career through touring, releasing albums, and acting as a judge on a talent show?

The answer is not so straight forward as one client who may obviously not have mental capacity when first meeting may differ to another client who at first instance doesn’t make it obvious that they lack capacity.

These decisions involve a difficult balancing act between ensuring that vulnerable people have as much freedom as possible while also making sure that sufficient safeguards are in place.

If Britney Spears conservatorship was in England it can be argued that there would be more safeguarding measures in place to protect her from the abuse she has experienced allowing her to become “stronger” and to have more control over her own life.

As per the principles of the Mental Capacity Act 2005. Actions that have been taken thus far can be argued as against her best interests at best and restrictive of her basic rights and freedom at worst.

Check out our downloadable guides for Court of Protection (COP).

We specialise in making applications to the Court of Protection (COP) on behalf of clients asking the court to make a decision.  For advice and a free initial discussion call us today.

Kulraj Kaila

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Kulraj Kaila

Paralegal

Kulraj is a member of the Residential Conveyancing Team in our Leicester office and assists in all aspects of the buying and selling process.