Free Britney?

HLS Lecturer on Law James Toomey talks all things conservatorships and why they should only last ‘as long as necessary’

Jamie Spears announced on Thursday that he would be stepping down as his daughter Britney’s conservator — a move she had demanded earlier this summer, alleging that he had been cruel and abusive in the role. While Jamie Spears denied those allegations, he claimed that he did not want to prolong the legal battle with his daughter and would instead prepare for a transition to a new conservator.

It is the latest chapter in a saga that has engulfed the pop star since she was first placed under the conservatorship more than a decade prior, and which has shone a light on the nature of conservatorships. While having her father step down is no doubt a win for Spears, it does not dissolve the conservatorship completely which she had asked the courts for in an impassioned plea last month. She is not “free,” and her rights are still heavily restricted.

Harvard Law Today asked health law expert James Toomey ’19, a Climenko Fellow and lecturer on law at Harvard Law School, to discuss exactly how conservatorships work, how they should function in ideal conditions, and what rights are afforded to those who, like Spears, wish to extricate themselves from their constraints.

James Toomey Headshot

Climenko Fellow and Lecturer on Law James Toomey ‘19

Harvard Law Today: Jamie Spears made headlines yesterday when he announced his intentions to step down. However, the conservatorship remains fully intact. What impact does it have on the conservatorship when a conservator is replaced?

James Toomey: A conservator’s stepping down doesn’t necessarily end a conservatorship; assuming the court finds that a conservatorship is still necessary, it will just appoint another conservator. Of course, if a former conservator testifies that he stepped down because he no longer thinks the conservatorship is necessary, that would be weighty evidence against continuing it. Being a conservator is a voluntary position, you can choose not to do it anymore whenever you want, and as long as you arrange for an orderly transition, you don’t breach any duties in doing so. In general, those subject to conservatorships don’t have a right to a specific conservator of their choosing (or, in Ms. Spears’ case perhaps, a veto over particular conservators), but courts should, and I understand usually do, take into account the preferences of the individual subject to conservatorship in choosing one. Moreover, remember that conservators have to act in the best interest of the subject of the conservatorship, so where personal disagreements or a predilection to abuse makes that impossible, a conservator should step aside or the court will have to find a new conservator anyway.

HLT: What is the primary objective of a conservatorship and when are they most often enacted? Is there a specific legal threshold that must be met to have one established?

Toomey: Conservatorships, also known as guardianships, are a mechanism designed to take care of the legal needs of those who cannot take care of themselves. (Traditionally, a “conservatorship” would be over a person’s assets, and “guardianship” over their person, but most states have modified or abolished this distinction; California just calls it a “conservatorship,” where in most states we would say Britney Spears is subject to a “guardianship”). These mechanisms most commonly come into play with older adults who are suffering some cognitive decline or dementia. So, Britney Spears’ case is idiosyncratic in how young and apparently functional she is, though conservatorships can be imposed wherever a mental illness (or really anything else) inhibits functioning.

The legal thresholds for establishing conservatorships vary from state to state. States generally require the individual subject to conservatorship to be found to lack mental capacity to make their own decisions in some general sense — this is a test of cognitive function and of the physical ability to understand the nature and consequences of one’s decision-making. It is not, strictly speaking, a medical test, and there is no specific diagnosis that automatically imposes a conservatorship. What matters is your actual cognitive functioning and the functional impairments it causes.

On top of this, many states impose additional requirements, such as requiring the court to find that the conservatorship is the least restrictive alternative or that without the conservatorship, you could harm yourself or others. But that’s all in theory. In practice, there is a lot of evidence that simply having been diagnosed with a mental illness or dementia, or even sometimes just being old, makes it much more likely that a court will impose a conservatorship. Indeed, there’s a lot of evidence that courts often don’t follow the legal standards particularly closely in granting guardianships, with one older study finding that most guardianship proceedings last less than 15 minutes, even though they might involve stripping people of basic legal rights.

HLT: How much autonomy is granted to someone under a conservatorship? Can they live independently or work in a chosen profession? Is there a level of bodily autonomy extended for medical decisions or are those all ultimately determined by the conservator?

Toomey: All states authorize and many states encourage or require courts to impose “limited guardianships” tailored to the particular needs of the individual. So for someone in the early stages of dementia, for instance, who is functional in most ways but struggles with complex math, the court might impose a guardianship only over major transactions and paying bills but allow the individual $X/week of their money or something with which they can do whatever they want. But studies have shown that even in states where limited guardianships are formally encouraged, courts often just impose plenary guardianships anyway. So the answer, ultimately, is that it varies, and it’s relatively common to have a guardianship over, say, someone’s finances but not their medical decision-making, but mostly conservatorships are really a substantial, near-complete deprivation of legal autonomy. In general, if someone subject to guardianship wants to sign an employment contract, or a lease, or a contract of sale for their home, the conservator, and not them, is the one who needs to sign the contract. It varies, and it’s relatively common to have a guardianship over, say, someone’s finances but not their medical decision-making, but mostly conservatorships are really a substantial, near-complete deprivation of legal autonomy. In general, if someone subject to guardianship wants to sign an employment contract, or a lease, or a contract to sell their home, the conservator, and not them, is the one who needs to sign the contract.

In many ways, a conservatorship is like a deprivation of legal personhood.

In many ways, a conservatorship is like a deprivation of legal personhood. We of course don’t call it that, and if you’re subject to a conservatorship you still have some rights recognized by law — people can’t just kill you, for instance, and your conservator is supposed to act as a fiduciary and in your best interest — but you really would be treated as almost a non-person in a vast array of contexts in which other adults take for granted that their decisions will be recognized by the legal system. I think you’ll find a broad consensus that something like this system is necessary in at least some cases — if someone’s in a vegetative state, for example, and we need to decide about their property, someone is going to have to do that — but that we are currently too cavalier in imposing conservatorships, given how high the stakes are.

HLT: A conservatorship is no doubt a drastic action to take. Are there less stringent legal options than conservatorships that would offer similar protections while allowing more independence?

Toomey: It is a drastic action, and my understanding is that most people, at least those acting in good faith, are reluctant to seek conservatorships for their family members and will only do so if they can’t help their family member be functional in other ways.

Aside from limited guardianships, there are probably two less drastic alternatives in the legal system. The first is that the need for a conservatorship – at  least in cases related to dementia and other age-linked conditions – can  largely be obviated with advance planning. If you’re worried about becoming incapacitated at some point in the future, while you have capacity you can execute durable powers of attorney granting a chosen individual the authority to make decisions on your behalf, under certain conditions, in a particular domain. These are flexible documents — you can give people specific instructions or trust their judgment. So there are things you can do in advance to plan this all yourself and avoid guardianships, but of course that doesn’t help people like Ms. Spears who had no reason to expect a dramatic change in mental state when she was 26, if that is indeed what happened.

Second, there’s a very popular recent move to replace guardianships entirely with a model of “supported decision-making.” Under this model, instead of appointing a “guardian” or “conservator” to make decisions for you, the court would appoint a “supporter” to help you work through your own decisions, while you still have ultimate legal authority. It is probably too soon to say for sure whether a supported decision-making model will solve the problems we see with conservatorships, because this law reform wave is largely happening as we speak, but there’s evidence — some of which I’ve found myself — that the model is popular with seniors and those most likely to be subjected to conservatorships.

HLT: In Britney Spears’ case, her conservatorship was established when she was 26 years old. In cases where a conservatorship is established for a young adult, would the expectation be that it is permanent?

Toomey: As a formal legal matter, conservatorships are only supposed to last as long as they are necessary. So, I think the expectation of whether it will be permanent would largely depend on why the conservatorship was imposed in the first place. If the conservatorship was imposed because of, say, early-onset Alzheimer’s disease, for which there is currently not much hope of substantial  improvement, everyone would likely expect it to be permanent. In contrast, if it was imposed because of something temporary — a drug-induced psychotic break, say — or something that could be improved with therapy or treatment, then we’d expect the guardianship to last only until the person has the mental capacity to be functional again. Either way, expectations aside, the guardianship should legally no longer exist as soon as the individual is functional enough to meet whatever the specifics of the legal test are in the jurisdiction. But a court has to actually end a guardianship, it doesn’t just happen automatically, and of course we know that in practice it often doesn’t happen at all.

HLT:  In June of this year, Spears called 911 to report she was a victim of conservatorship abuse. Is there any legal framework in place to monitor a conservatorship or ensure that abuse is not taking place?

Toomey: The answer, again, is that it depends a great deal on the state in terms of the specific procedures. But yes, courts are supposed to monitor conservatorships to ensure that conservators are fulfilling their fiduciary duties. If the court finds that abuse is taking place, it is of course required to replace the conservator or terminate the conservatorship. Unfortunately, as with so much else in this domain, there’s a real gap between what the law aspires to and what actually happens in practice — there’s a general scholarly and public agreement that current monitoring efforts are insufficient to detect and prevent guardianship abuse. And state statutes generally provide that the individual subject to the conservatorship or any interested person can petition to end it, or report abuse to the court. Unfortunately, these procedures are often so complex that they realistically require a lawyer’s help.

HLT: What would be considered good cause to terminate a conservatorship entirely?

Anecdotally it seems that courts often impose an implicit burden on the person trying to get out of the conservatorship to show why it is no longer necessary, when that really should be reversed, under the law.

Toomey: Well, if a conservatorship is no longer necessary, it should be terminated in whole or in part. You’re not supposed to need cause beyond its being unnecessary. Many states, following the Uniform Act, have a much lower standard to end a conservatorship than to start one — one needs clear and convincing evidence of incapacity to impose a guardianship, and just prima facie evidence of capacity to end one. But it’s not clear that that is really how the burdens play out in practice, and at least anecdotally it seems that courts often impose an implicit burden on the person trying to get out of the conservatorship to show why it is no longer necessary, when that really should be reversed, under the law. And the complexity of the proceedings and challenges of hiring an attorney can mean that people subject to guardianship don’t bring a petition to end it in the first place.

HLT: Are those individuals under guardianship able to secure their own independent legal counsel?

Toomey: This is a long-running challenge in guardianship law. Generally speaking, people who lack mental capacity — as those subject to guardianship have necessarily been found to — cannot hire attorneys, just as they can’t sign a lease or sell their house. But because the stakes are so high, and complexity of the procedures may make it next to impossible for someone to get out of a guardianship without a lawyer, most states do allow those subject to guardianships to hire attorneys at least for the purpose of contesting the guardianship.

This is related, though, to another long-running challenge of guardianship proceedings — what is the role of a lawyer for someone who is subject to or potentially will be subject to guardianship? Are they a “defense lawyer,” arguing against the conservatorship and following the expressed wishes of their clients? Or can they independently conclude that the guardianship is in the best interests of their client, and advocate for that? States have gone different ways on this, and it really goes to core questions of what we think a guardianship is — is it, first and foremost, stripping someone of rights, always regrettable but sometimes necessary, just as in the criminal law? Or is it about helping people who cannot help themselves, and whose very reasons for being unable to help themselves may cause them not to understand how much help they need? To some extent, guardianships are both of these things. And these tensions, I think, are part of why it is so hard to establish robust and satisfactory guardianship procedures — though of course there’s an important story about a lack of resources and political commitment as well.