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| A #FreeBritney protest outside Spears’ conservatorship hearing in Los Angeles last month. Photograph: Étienne Laurent/EPA |
by Nina A Kohn
Around the world, fans of pop star Britney Spears celebrated her father’s announcement last week that he would resign as her conservator. This development is welcome news for Spears and her supporters, dubbed the #FreeBritney movement. But it will not end Spears’ conservatorship, which has prevented her from making decisions about her own life since it was established shortly after she had a mental breakdown in 2008. Nor will it prevent others from finding themselves in similar situations. That will require changing the underlying legal systems that created Spears’ predicament.
While many have only recently learned of conservatorship thanks to the #FreeBritney movement, this legal process is neither new nor unique to the US. It is a common court proceeding in which the court appoints someone to make decisions for individuals the court has found cannot make decisions for themselves. California – where Spears lives – calls this proceeding conservatorship and calls the appointee a conservator. More commonly, it is called guardianship and the appointee is called a guardian. While Spears has drawn attention to guardianship, the process typically entangles those far less privileged. Changes in the pop star’s situation , as welcome as they may be, won’t themselves trigger the reform of a legal mechanism mainly experienced by people society has historically treated as expendable.
Since medieval times, English law has recognised the government’s power as parens patraie (or “parent of the people”) to manage the property and bodies of citizens with cognitive disabilities. The first guardianship statutes were adopted in England in the 1600s during the reign of Charles II. And countries around the world have parallel systems that enable courts to appoint others to make decisions for people determined unable to do so for themselves. In England and Wales, for example, the court of protection can appoint a deputy in such situations; in Scotland, sheriff courts can appoint a guardian.
Guardianship can provide valuable protection and assistance to those unable to care for themselves. Suppose an individual has a chronic illness but, due to advanced dementia, cannot understand the nature or consequences of that illness even with substantial help. If the person never executed a power of attorney appointing someone to make decisions for them, the best option may be for a court to appoint another person to make those decisions.
But – as the Spears case painfully illustrates – guardianship also has very real costs. Individuals subject to guardianship lose the right to make some or nearly all decisions for themselves. Guardianships can also undermine fundamental human rights –indeed, broad guardianships may run afoul of the UN convention on the rights of persons with disabilities.
The result is that guardianship can be stigmatising and traumatising for the very people it is designed to protect. Spears, for example, provided heart-wrenching testimony about the trauma of being prohibited from making basic choices about her life and body – including whether to remove an IUD preventing her from having further children.
Given the costs it poses, it is widely agreed that guardianship should only be used as a very last resort. And when guardians are appointed, they should be granted only those powers truly necessary to meet individuals’ identified needs. If a court finds a person lacks the ability to make major financial decisions, it does not mean the person should not be allowed to manage their own personal affairs or control smaller amounts of money.
Unfortunately, guardianship is often treated as a go-to intervention for individuals with cognitive disabilities or serious mental health problems, not a last resort. Research suggests guardianships in the US are routinely granted with minimal independent evaluation of the individual’s needs and abilities, and without full exploration of less restrictive alternatives. Indeed, they are so routinely granted over young adults with intellectual disabilities in the US that they are treated almost as a rite of passage. In addition, guardians are routinely granted very broad powers. Best evidence indicates that the vast majority of guardianships in the US are plenary – that is, they strip those subject to them of all rights that can be removed under state law.
Making matters worse, once granted, guardianships can be very hard to end. Individuals subject to guardianship often lack the awareness, resources and legal assistance needed to successfully challenge the appointment. This problem appears to be particularly acute in California, where courts have unconstitutionally denied individuals subject to conservatorship – including Spears – the right to choose an attorney to represent them in challenging their conservatorship.
For decades, advocates for older adults and individuals with disabilities have called for reforming guardianship laws around the world. In recent years, there has also been an explosion of interest in encouraging alternatives to guardianship – especially supported decision-making, a process by which individuals who might otherwise be unable to make their own decisions do so with help from people they trust.
In the US, the Uniform Law Commission created model legislation that, if adopted by states, could help prevent others from finding themselves in Spears’ predicament. The legislation would, for example, make it harder to impose guardianships and easier to terminate them, require courts to be more proactive in removing guardians and terminating guardianship, prohibit courts from denying individuals like Spears access to counsel of their own choosing, and limit the ability of unscrupulous guardians to drain assets by charging unreasonable fees.
But, although the US Special Committee on Aging and others have urged every state to adopt the model Act, only two – Washington and Maine – have. Instead, state legislatures have either ignored the problem or made piecemeal reforms.
What accounts for this tepid response to law reform efforts? Guardianship reform historically hasn’t been a “hot” political issue. Most people subject to guardianship are older adults or persons with substantial cognitive disabilities – groups too often treated as expendable. And reform efforts often face opposition from judges and attorneys who have grown comfortable with the status quo.
The good news is Britney Spears’ very public struggle with her conservatorship has the potential to spark the reform. Seeing a young, vibrant, working pop star who can clearly articulate her own wishes traumatised by the guardianship system may be the wake-up the world, and especially the US, needed. Perhaps now there will be the political will needed to ensure guardianship finally becomes the last resort it should always have been.
Nina A Kohn is the David M Levy professor of law at Syracuse University and the Solomon Center distinguished scholar in elder law at Yale Law School.
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