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- Roughly 1.3 million adults in the United States are under conservatorships like Britney Spears.
- Guardianship is justified as a way to protect its subjects, but can be extremely difficult to get out of.
- To protect human rights and dignity, courts should not impose guardianship unless it is an absolute last resort.
- Rebekah Diller and Leslie Salzman are clinical professors of law at the Benjamin N. Cardozo School of Law at Yeshiva University, where they are co-directors of the Bet Tzedek Civil Litigation Clinic.
- This is an opinion column. The thoughts expressed are those of the authors.
- See more stories on Insider’s business page.
It’s hard to walk away from “Framing Britney Spears,” the new documentary chronicling the pop star’s lengthy legal conservatorship, without serious questions. How could the law bar a grown woman with hit albums, concert tours, and industry awards from acting on her own behalf for well over a decade? And if someone with Britney Spears’ money, fame, and relative youth has remained under a conservatorship for this period of time, what does that say about the system as a whole?
Although not all the facts about Britney Spears’ conservatorship are clear from the documentary, her circumstances offer a window into the problems with guardianship and the ways the system can fail those whom it is supposed to serve. And with the release of the recent Netflix film “I Care a Lot,” which presents a fictional account of a guardian’s financial exploitation of her wards, concerns about guardianship have been further thrust into the public eye.
Guardianship affects about 1.3 million adults across the country. Adult guardianship is the state law process by which a court appoints a surrogate to make decisions for an adult who is deemed “incapacitated,” frequently by virtue of intellectual disability, mental illness, or cognitive impairment. After exposés revealed critical problems, many states reformed their laws in the 1990s. Today, in most states, courts are supposed to consider less restrictive alternatives and narrowly tailor any guardianship order to preserve maximum autonomy. Yet these reforms, which are often ignored in practice, have not gone far enough. To be sure, guardianship touches individuals in vastly different circumstances, raising complicated and thorny policy questions. And while some ask whether we can achieve real reform within our existing framework, it is worth considering how the current system falls short.
The trouble with the guardianship system
Because guardianship has traditionally been justified as a protective mechanism, the guardianship system is tainted by a culture of paternalism. As a result, many courts still err on the side of granting guardianship petitions even when less restrictive alternatives would suffice. And courts often enter broad orders that fail to adequately consider the impact of losing rights as basic as accessing a bank account, signing a contract, choosing where to live, or consenting to one’s own medical care.
Moreover, once under a guardianship, it is nearly impossible to get out. In many cases, guardianships are imposed to address a particular crisis, such as hospital discharge planning, eviction or foreclosure, yet they often last indefinitely. At some point, couldn’t Spears have turned to a financial manager or created a trust to assist with her finances, like so many individuals with significant assets do? Many people under guardianship do not know there is a way out or lack counsel to assist them with this potentially difficult process. Those who do seek termination may find that they must prove they have regained capacity and no longer “need” a guardian, instead of the other way around, as due process should require.
The documentary additionally reveals the potential costs of a guardianship. Particularly when conservatees, like Britney Spears, have assets, many people stand to financially benefit; The conservator, lawyers on both sides, court-appointed experts, and others may be awarded fees paid for by the conservatee. There are also instances of outright financial exploitation by guardians, which the US Government Accountability Office has recognized as a significant problem.
Another issue is that the guardianship proceedings are opaque – a practice intended to maintain the privacy of medical and financial information of those subject to guardianship. But privacy protections can also be used against the very person they were designed to protect.
In the documentary, the lawyer initially chosen by Spears said that the court ruled she lacked capacity to choose her own lawyer. According to the lawyer, the court relied on a medical report that it refused to share with him. Under these circumstances, the confidentiality protections may have operated to limit Spears’ ability to challenge the decision that she could not choose her own counsel.
Most people under guardianship are not Britney Spears
Most conservatees lack Spears’ money. They don’t have a documentary crew examining their cases or #FreeBritney activists seeking answers. Changes are needed so that their rights are protected too.
More states are recognizing supported decision-making -a process in which a potential conservatee works with someone they trust to obtain information, understand and weigh options, and communicate decisions – as an alternative to guardianship. State laws should require that all other viable alternatives, including supported decision-making, have been attempted and failed, before a guardianship is ever considered.
If everything else is tried and guardianship is still imposed, it should not be permanent but rather for a limited time period, and always with the goal of restoring the individual’s rights as soon as possible. And the process to terminate guardianships prior to their expiration should be more accessible, with the burden of proof squarely on the party who wants the guardianship to continue.
The ability to make one’s own decisions is a precious human right. Hopefully “Framing Britney Spears” can prompt greater scrutiny of a system that too often is overlooked, and move us to new ways of honoring autonomy and self-determination.
Leslie Salzman and Rebekah Diller are clinical professors of law at the Benjamin N. Cardozo School of Law at Yeshiva University.
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