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Estate planning often makes the news when wealthy celebrities die and leave behind messy multi-million dollar estates. Over the last few weeks, however, estate law is making headlines thanks to pop music icon Britney Spears and her highly controversial conservatorship.
Ms. Spears, who is 39 years old, is petitioning the court to release her from the conservatorship under which she has lived for the last thirteen years. Spears argues that she has been exploited and abused while under the conservatorship and that she can manage her own affairs. Spears' estranged father, John Spears, is one of her conservators. The other conservator, a trust company, recently resigned. The case has outraged Spears’ millions of fans, spawning a #FreeBritney movement and capturing worldwide media attention.
In the United States, all adults are considered capable of handling their own affairs unless a judge determines otherwise. In the state of California, where Ms. Spears resides, a conservatorship is a legal arrangement where a judge appoints an individual or organization, called the conservator, to care for an adult who "cannot care for themselves or who cannot manage their own finances or health care.”
Conservatorships are sometimes confused with guardianships, however, the two are not universally interchangeable. In California, for example, a guardianship refers to an arrangement where a court appoints an individual to oversee the personal and/or financial well-being of a minor.
Conservatorship and guardianship laws vary from state to state, making it difficult to determine exactly how a specific situation will be handled in a specific jurisdiction. Moreover, there is not a standard legal definition for either term. The terminology that applies to your specific situation will depend on the laws of the state of residency of the person to whom the conservatorship or guardianship applies. This makes it critically important to understand the laws in your jurisdiction.
Determining Competency or Capacity
There are many ways to define competency and to test for competency. Here again, different jurisdictions have different criteria for determining competency.
Maryland law requires that two physicians or one physician and a licensed psychologist, social worker, or nurse practitioner certify that a person cannot make or communicate reasonable decisions regarding their personal and/or financial well-being.
Even when a person is comatose or unable to communicate, finding incompetence or incapacity is a sensitive matter. The issue is far more complicated for an individual who believes they should be able to make their own decisions but nonetheless suffers with mental illness or from a debilitating disease or injury.
To be clear, mental illness or other injury does not mean that a person lacks the mental capacity to make decisions for themselves. And courts typically do not grant a guardianship or conservatorship unless there is no “less restrictive” alternative. Many people with mental illness or physical incapacity can lead relatively normal lives and handle their own finances. Similarly, some people may appear relatively healthy and mentally functional but cannot handle certain aspects of their lives.
Guardianships and conservatorships are not one-size-fits-all solutions. For instance, some people may need decisions made for them for the rest of their lives. Others may improve their mental and physical capabilities with time and therapy – rendering an established guardianship or conservatorship in need of amendment or altogether unnecessary. This appears to be the main issue in the Britney Spears case.
Can I Choose a Guardian for My Child(ren)?
Not all cases of guardianship are controversial, nor should they be. Whether you have many assets or not, it is essential for families with children to clearly define who should care for those children should both parents become unable to do so. A court will typically honor the parents’ wishes to determine who will become their legal guardian(s) for both the long and short term. However, if these decisions are not formally put into writing (with the assistance of an experienced estate planner), you have left it up to a judge to make these decisions for you, sometimes after a messy and costly court fight.
Can I Act as a Guardian or Conservator for a Loved One?
Yes, you can act as a guardian or conservator for your loved one. However, simply because you bring your loved one’s needs before a court does not guarantee that 1) the court will find a lack of capacity, or 2) that you will be appointed guardian or conservator. Family dynamics are often complicated, especially when someone in the family has a debilitating illness or injury.
While family members can be appointed as guardians or conservators, the court will consider what is best for the person in need. Sometimes, an attorney or a representative from a local government mental health or social services agency is appointed to act as a guardian or conservator.
The Bottom Line
When your loved one needs more than just a helping hand, it is a serious matter full of legal complexities. Every situation is unique and deserves a custom-tailored solution. With decades of experience and exceptional personal attention to every client, we are here to help. Please contact us to schedule a consultation.