By Jeffrey Khoo (BEc(Hons)/LLB IV)
For 12 years, a legal arrangement has restricted pop star Britney Spears’ autonomy over her personal and financial affairs.
Spears was placed under a conservatorship by the Los Angeles Superior Court in 2008 after experiencing public breakdowns.
Her father, Jamie Spears, has been her conservator since then but stepped down in 2019 for health reasons. He has been temporarily replaced by her manager, Jodi Montgomery.
However, on 19 August, Britney requested that her father be barred from returning to the role. A court document stated that she would like Montgomery, a ‘qualified corporate fiduciary’, managing her finances. Fans and celebrities have rallied behind her on social media.
So what is a conservatorship, and why are people demanding to #FreeBritney?
What is a conservatorship?
A ‘conservatorship’ is a court-ordered arrangement in which one person is appointed to make personal and financial decisions for another person, who is unable to make those decisions themselves.
This gives the conservator a large degree of responsibility and control. According to the California courts, the conservator decides where the individual will live, communicates with doctors about medical treatment, and even approves whether they can drive.
The conservator can also manage the conservatee’s financial assets, collect their income, make employment decisions, and control their estate.
According to Forbes, Britney’s conservatorship does not allow her conservator to force her to undergo mental health treatment, though certain conservatorships permit that.
In Australia, each state and territory has a similar set of ‘guardianship’ laws. Under the Guardianship Act 1987 (NSW) s 14, the NSW Civil and Administrative Tribunal can make guardianship orders for a ‘person in need of a guardian’, defined as someone who, due to a disability (including advanced age), is ‘totally or partially incapable of managing his or her person’.
Conservatorships and guardianships are more comprehensive than a power of attorney, which gives someone authority to manage another person’s financial affairs in certain circumstances; if they go overseas, for example, or fall ill.
Delegations of authority for medical care, such as advanced care directives, also exist.
Who might be placed under a conservatorship?
The test for conservatorship in California is very high.
The California Probate Code states that a conservator can be appointed if someone is ‘unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter’. A conservator can be established over someone’s financial affairs if that person is ‘substantially unable to manage his or her own financial resources or resist fraud or undue influence’.
It is unusual for a conservatorship to cover someone who is not elderly or severely mentally impaired.
The California courts say that a conservatorship, however, would not be granted over someone who can cooperate with a plan to meet their basic needs, who has the capacity to sign a power of attorney instead, or who has a spouse who could handle financial transactions.
A conservatorship must also be the only way to protect that person’s welfare.
Similarly, in NSW, a guardianship won’t be ordered if the person’s decision-making capacity, particularly for their care arrangements, is not affected by their disability (MHN [2017] NSWCATGD 14).
But guardianship orders can be made and varied for someone’s protection; for example, restricting someone’s movements if they are unable to understand the risks associated with COVID-19 (GZK [2020] NSWCATGD 5).
How does someone file for a conservatorship - and how does someone get out of one?
In California, the person themselves, their spouse, a relative, or interested people and agencies can submit a form and attend a conservatorship hearing.
In NSW, the person themselves, or someone who ‘has a genuine concern for the welfare of the person’, can make an application (Guardianship Act s 9).
The guardian must be ‘compatible’ with the person under guardianship, and must not have undue conflicts of interest (particularly financial) in assuming the guardianship (s 17). A Public Guardian (a public servant) can be employed as someone’s guardian.
Conservatorships and guardianship orders are reviewed every couple of years. The conservatee or another person can also request to end the conservatorship if they can prove the conservatee can handle their own affairs.
In one NSW case, a 100-year-old woman, with social and family contacts in her community who could assist her in personal and financial matters and opposed government intervention in her life, was deemed to no longer need a guardianship order (BDN (No 2) [2017] NSWCATGD 44).
Why are people demanding to #FreeBritney?
Many believe that Britney’s conservatorship is overly restrictive. While the exact terms of her conservatorship are not known, Britney has very little involvement in personal decision-making. Her conservator can restrict visitors and must disclose her purchases to the courts, for example.
Some have accused her father of making her perform and work against her will. Since 2008, Britney has held Las Vegas residencies, undertaken world tours and judged The X Factor USA.
Given that she has been working and interacting on social media, many question whether the conservatorship is genuinely based on mental health grounds, invoking her father’s possible financial motivations instead.
Explosively, an early document filed by her father in support of a conservatorship claimed she had early-onset dementia.
Jamie Spears ‘aggressively contested’ Britney’s request to remove him at the August 19 court hearing. The court ultimately declined to change the conservatorship until at least February 2021.
Additionally, on August 25, Britney’s sister, Jamie Lynn, was named trustee of a trust which holds Britney’s personal assets and cash. Britney is the sole beneficiary of the trust while alive, but her sister controls her estate.
Until February next year, fans will continue to push for Britney’s independence.