Staff Reporter (2021 – 2022)
The #FreeBritney movement began in 2019 when fans became convinced that Britney Spears was sending secret messages via social media asking for help out of her conservatorship.1 The #FreeBritney movement garnered support over the subsequent two years, and, in 2021, conservatorship policy made headlines when Spears spoke out against her conservatorship.2 Her explosive testimony detailed her conservator’s unyielding control.3 Spears shared that she was not allowed to have her intrauterine device removed even though she wanted to have more children, that she was not allowed to stop working in spite of not having access to any of her profits, and that she was not allowed to get married to her long-time partner.4 In November 2021, Judge Brenda Penny terminated the 13-year conservatorship.5 More recently, actress Amanda Bynes petitioned to end her almost nine-year conservatorship and won.6 Unlike Spears’s father and ex-conservator, Bynes’s mother and conservator expressed support for its termination.7 Both Spears and Bynes were put under conservatorships following their heavily publicized mental health difficulties.8
What is a “conservatorship”?
A conservatorship—sometimes called a guardianship—is a legal relationship in which a court gives one person or entity the duty and power to make the personal, property, and financial decisions of another person.9 Conservatorships are created by state law.10 Modern guardianship and restoration law focuses on an individual’s decision-making ability.11 In Texas, guardianships are governed by the Texas Estates Code. An overview of Texas guardianship law can be found here.
Why is reform necessary?
A guardianship can be an immense infringement on a person’s rights. Though abuse does not occur in all guardianships, the nature of guardianships leaves those under them particularly susceptible to it.12
50 Guardianship Jurisdictions Leads to Inconsistency
How courts determine whether a guardianship is necessary, the standards of proof required for determining legal capacity, the evidence courts use to determine restoration, the legal decision-making standard for guardians, and the procedural process can all vary by jurisdiction.13
Determining jurisdiction can be an issue in itself.14 Most states allow a guardian to be appointed in a state where the individual is domiciled.15 But most states also allow a guardian to be appointed where the individual has property—what happens when an individual has property in multiple states?16 Sometimes guardianship proceedings must even be initiated in a second state because some institutions, care facilities, and courts do not recognize a guardianship order issued in another state.17
Guardianships Can Be Overly Broad and Restoration of Rights Can Be Inaccessible
Guardianships can be plenary (completely unrestricted) or limited, with courts more likely to grant the former than the latter.1819 Despite the “last resort” nature of guardianships, they are created too often. To combat this, experts seek to abolish the “school-to-conservatorship pipeline” in which disabled high school students are almost immediately placed under conservatorships when they become adults.20
Due to a lack of adult guardianship data, the number of petitions for restoration that are filed, granted, and on what grounds, is generally unknown.21 What is known is that once guardianships are established, restoration of rights proceedings are under-utilized and under-litigated.22
Petitions for restoration of rights are more likely to be granted for some disability populations than others.23 Specifically, one study showed that, for persons with mental illness, 16% of petitions successfully resulted in restoration, while petitions as a result of traumatic brain injury and intellectual or developmental disability were successful about 41% of time, and petitions for restoration of an older person are successful about 47% of the time.24
The disparity between the restoration of rights for persons under guardianships for mental health concerns and other reasons can be telling.25 In support of conservatorships, one attorney states that “those critical of conservatorships... don’t often have a birds-eye view of the necessity of these laws and the crucial protections they offer.”26 Still, although the high prevalence of mental illness and the inaccessibility of mental health treatment present major challenges, guardianships—especially plenary guardianships—should be considered a last resort.27
Inadequate Access to Counsel
A lawyer must zealously advocate for the interests of her client.28 However, if a court determines that a person lacks the necessary capacity to hire a lawyer it may appoint a lawyer for them.29 In 2008, at the beginning of Britney Spears’s conservatorship journey, a judge appointed Sam Ingham as her lawyer after deciding that Spears lacked the mental capacity to retain her own lawyer.30 Over the years, sources speculated that Ingham was loyal to the conservatorship and not to Spears’s interests.31 Tellingly, in 2021, Spears claimed that she did not know that she could have petitioned for the termination of the conservatorship at any time between 2008 and 2021, even though she opposed her father serving as her conservator back in 2008.32
What can be done?
First, advocates and attorneys can encourage the use of alternatives to guardianships. Supported Decision-Making (SDM) is a recognized alternative to guardianships (in some states), in which people use friends, family, and trusted professionals to help them understand the situations and choices they face so that they can make their own decisions.33 SDM mirrors how most people make decisions and encourages self-determination.34
Second, Texans can ask their state representatives to adopt the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). The UAGPPJA is a narrowly focused statute that deals exclusively with jurisdictional issues relating to adult conservatorships.35 The UAGPPJA resolves interstate jurisdictional issues, facilitates the transfer of conservatorships between jurisdictions, provides for interstate recognition and enforcement of conservatorship orders, and facilitates communication and cooperation between courts.36
These solutions are only a start. However, by promoting consistency and accessibility, the 1.5 million adults currently under conservatorships may have more access to their right to make their own decisions.
1 Abby Gardner, The Britney Spears Conservatorship Situation, Fully Explained, Glamour: Celebrity News (Sept. 30, 2021), https://www.glamour.com/story/the-britney-spears-conservatorship-situation-fully-explained#:~:text=In%20February%202008%2C%20Britney%20Spears,%2C%20estate%2C%20and%20business%20affairs.
3 See NPR Staff, Read Britney Spears’ Statement To The Court In Her Conservatorship Hearing, NPR: Law (June 24, 2021, 6:52 PM), https://www.npr.org/2021/06/24/1009858617/britney-spears-transcript-court-hearing-conservatorship.
5 Chloe Melas, Britney Spears’ conservatorship ends, CNN: Entertainment (Nov. 12, 2021), https://www.cnn.com/2021/11/12/entertainment/britney-spears-conservatorship-ends/index.html.
6 Lisa Respers France, Amanda Bynes speaks out as she seeks to end her conservatorship, CNN: Entertainment (Mar. 10, 2022, 12:42 PM), https://www.cnn.com/2022/03/10/entertainment/amanda-bynes-conservatorship/index.html; Zoe Christen Jones, Amanda Bynes’ conservatorship terminated after nearly 9 years, CBS News (Mar. 23, 2022, 12:12 PM), https://www.cbsnews.com/news/amanda-bynes-conservatorship-terminated/.
8 See Chloe Melas, Amanda Bynes opens up about her downfall, CNN: Entertainment (Nov. 27, 2018, 4:19 PM), https://www.cnn.com/2018/11/26/entertainment/amanda-bynes-interview/index.html; see Abby Gardner, The Britney Spears Conservatorship Situation, Fully Explained, Glamour: Celebrity News (Sept. 30, 2021), https://www.glamour.com/story/the-britney-spears-conservatorship-situation-fully-explained#:~:text=In%20February%202008%2C%20Britney%20Spears,%2C%20estate%2C%20and%20business%20affairs.
9 Jenica Cassidy, Restoration of Rights in the Termination of Adult Guardianship, 23 Elder L.J. 83, 84 (2015).
10 Id. at 86.
11 Id. at 95.
12 David Godfrey, Abuse of Adults: Why Put Effort into Fixing Guardianship?, 43 Bifocal, no. 4, Mar.–Apr. 2022, at 96.
13 Annemarie M. Kelly et al., A 50-State Review of Guardianship Laws: Specific Concerns of Special Needs Planning, 75 J. of Fin. Serv. Prof’l., no. 1, Jan. 2021, at 59, 60–61; Jenica Cassidy, Restoration of Rights in the Termination of Adult Guardianship, 23 Elder L.J. 83, 87 (2015).
14 See “Prefatory Note” of the Uniform Guardianship and Protective Proceedings Act (1997), Uniform Law Commission, available at http://www.uniformlaws.org/shared/docs/guardianship%20and%20protective%2....
18 Plenary guardianships are guardianships in which the court gives the guardian authority across all legal rights of another. Peter Blanck & Jonathan G. Martinis, “The Right to Make Choices”: The National Resource Center for Supported Decision-Making, 3 Inclusion, no. 1, 24, at 26 (2015).
19 See id; Robert D. Dinerstein, #FreeBritney: A Lawyer’s Responsibility, ABA: Voice of Experience, October 2021.
20 #FreeBritney movement and alternatives to conservatorship, ABA: News (Aug. 2021), https://www.americanbar.org/news/abanews/aba-news-archives/2021/08/conservatorship-alternatives/
21 Jenica Cassidy, Restoration of Rights in the Termination of Adult Guardianship, 23 Elder L.J. 83, 95–96 (2015).
22 Id. at 95.
23 Id. at 97.
24 Id. at 98.
25 While researching for this comment, I found extensive data, research, and opinions about the concerns of guardianships for the elderly and physically disabled individuals. However, the dearth of similar opinions about conservatorships for individuals with mental health concerns stood out to me. See generally id. at 98.
26 Carolyn Reinach Wolf, What to Know About Conservatorships and Mental Illness, Psychology Today: From the Desk of the Mental Health Lawyer (Apr. 19, 2021), https://www.psychologytoday.com/us/blog/the-desk-the-mental-health-lawyer/202104/what-know-about-conservatorships-and-mental-illness.
27 See generally Robert Barton, et al., The Use of Conservatorships and Adult Guardianships and Other Options in the Care of the Mentally Ill in the United States, Nat’l Guardianship Ass’n, May 29, 2014, at 1, https://www.guardianship.org/IRL/Resources/Handouts/Family%20Members%20as%20Guardians_Handout.pdf.
28 Robert D. Dinerstein, #FreeBritney: A Lawyer’s Responsibility, ABA: Voice of Experience, October 2021.
33 Peter Blanck & Jonathan G. Martinis, “The Right to Make Choices”: The National Resource Center for Supported Decision-Making, 3 Inclusion, no. 1, 24, at 26 (2015).
34 Greater self-determination is an indicator of more positive quality of life outcomes and improved quality of life. See id. at 26–27.
35 See Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, Prefatory Note (Nat’l Conf. of Comm’rs on Unif. State Laws 2007).
36 See generally Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (Nat’l Conf. of Comm’rs on Unif. State Laws 2007).