In Special Needs News

Britney Spears’s legal fight to wrest back control over her personal and financial affairs has flooded the issue of guardianship in Klieg lights.  While a full guardianship may be necessary for many individuals with special needs, the Spears case underlines the option of more limited alternatives.

On July 14, a Los Angeles judge approved the resignation of Spears’s court-appointed lawyer and granted her request to hire her own lawyer.  The 39-year-old singer told the judge that she wants to end the long-running conservatorship that has put her father in charge of her estimated $60 million fortune and business affairs, and others in control of such personal decisions as whether she can marry and have a baby. “I'm here to get rid of my dad and charge him with conservatorship abuse,” she said.

Whatever the merits of this controversial case, it highlights an aspect of special needs planning that many people don’t fully understand. Conservatorship, more commonly known as guardianship, is a legal relationship between a competent adult (the “guardian”) and a person (the “ward” or “conservatee”) who, because of incapacity, is no longer able to take care of his or her own affairs.

What makes Spears's situation so unusual is the fact that she does not appear to be incompetent, at least when it comes to her professional accomplishments. In the 13 years since the conservatorship was put in place, she has continued her career as a pop star, earning millions from a four-year concert residency act in Las Vegas and serving as a judge on the television reality show “The X Factor.”

Another anomaly was the fact that Spears was until now represented by a court-appointed attorney who, she argued, did not represent her wishes or interests. However, while the media has given wide coverage to Spears’s side of the dispute, we have heard almost nothing from the professionals handling her affairs, who are constrained from publicly disclosing confidential information.

It’s easy to see why conservatorship, which takes away a person’s right to make decisions about significant aspects of his own life, is considered among the most restrictive legal remedies in the American judicial system. For this reason, courts are legally required to seek alternatives that will safeguard the ward’s finances and wellbeing but with the fewest restrictions, in an effort to protect that person’s rights.

Protections Without Total Loss of Control

For families that are setting up plans for a person with special needs, there are various approaches that provide protection without stripping that person of control over all decisions, as in Spears’s case.

Most people with special needs can make responsible decisions in some areas of their lives (holding a steady job, for example) but not others (such as making major financial decisions). Families might consider setting up what’s called a “limited guardianship.” Most states allow judges to appoint guardians with limited powers that are specifically tailored to the alleged incapacitated person's needs. For example, a court can appoint a guardian to oversee a person's housing and health care, but not to manage the person's bathing, eating, and socialization. Conservators can be appointed to handle the financial affairs of someone who is not good with money, without having any power to manage health care decision making—the options are almost infinite.

Alternatives to Guardianship

Sometimes, guardianship isn't the answer at all. If a person with special needs can execute estate planning documents, she can also sign a durable power of attorney and a health care proxy, which allows someone to assist her with decisions without court involvement. This is important for several reasons. First, it prevents a court from ruling that someone is “incapacitated,” which carries with it a stigma and can be hard to undo, as Britney Spears is finding. Second, it puts the person with special needs in the driver's seat. Third, it is much less expensive and time-consuming.

Legal experts say that Spears faces a long, difficult path if she seeks to terminate her conservatorship. She would need to file a formal petition, which would require presenting evidence in hearings and depositions. She could face objections at every stage from attorneys representing her father and others involved in her care. (Spears has indicated her unwillingness to submit to a mental evaluation or test in her effort to end the conservatorship.)   

If you have questions about what type of guardianship may be right for your family, or if you are currently under guardianship and are looking to gain control of your affairs, talk to your special needs planner today.

For a New York Times podcast on the Britney Spears case, click here.

For more on guardianship, click here.

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