Britney Spears appeared in a California court on May 10 for the latest round of legal battles tied to her 11-year-long conservatorship. While the court reportedly ordered a capacity evaluation and some fans mounted a “Free Britney” campaign, Spears’ father and conservator remained in control of her assets and the most basic decisions in her life. Conspiracy theories have swirled around the 37-year-old singer, with some fans even alleging she is being held against her will. The controversy is unlikely to die down anytime soon, especially given the most recent reports that Spears is mentally and physically unable to return to her lucrative Las Vegas residency.
Spears is hardly typical of people courts declare incapacitated, but she is one between one and three million Americans with court-ordered guardians or conservators.
Spears is hardly typical of people courts declare incapacitated, but she is one between one and three million Americans with court-ordered guardians or conservators. For some, guardianship can be life-saving. But for others, trapped in court-ordered protective arrangements they don’t need or at the mercy of guardians or conservators who neglect or abuse them, it can be bewildering and devastating. And most people don’t have a devoted fan base scrutinizing every decision — and more than ready to cry foul if they perceive injustice.
To understand the potential for abuse, you must first understand how complicated America’s guardianship system really is. Each state has its own process for appointing substitute decision-makers for people who are incapacitated. Most states appoint guardians to handle personal and medical decisions and conservators to control finances. Family members, like Spears’ father, are frequently appointed. But if family members are fighting among themselves, inappropriate, or, sometimes, even when suitable relatives volunteer to serve, judges appoint professional guardians. These guardians may have hundreds of cases and little ability to give personal attention to each one.
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Whoever the guardian is, guardianship has a profound impact on an individual’s autonomy. Spears can’t marry, obtain health care, or make routine purchases without her father’s approval. And some individuals under guardianship lose much more including their homes, possessions and access to family and friends. Because guardians have an extraordinary ability to limit incapacitated people’s rights to both liberty and property, an early investigation of guardianship abuse by a U.S. House Committee report called guardianship “the most punitive civil penalty that can be levied against an American citizen.”
After several waves of reforms, states have beefed up the rights of people at risk of guardianship and strengthened courts’ oversight responsibilities. But the reality in courtrooms doesn’t always match the lofty language of the law. Judges, court investigators, lawyers representing people in guardianship proceedings, and professional guardians are often over-burdened and underfunded. Good intentions don’t always translate to positive outcomes. Standards and expectations are ratcheted down to meet practical and financial realities.
People caught in the guardianship system — our parents, friends, or neighbors, each with his or her own rich life history — become mundane cases that courts must efficiently dispatch. In some places, guardianship hearings may last only a few minutes. The person alleged to be incapacitated is often not present for the hearing or represented by a lawyer, only meager evidence may be presented, and guardianships that could be limited to just a few areas of the person’s life become all-encompassing. In some jurisdictions, virtually every petition for guardianship is granted. As one state Judicial Committee observed, the courts terminate the “fundamental and basic right” to make decisions for oneself “with all the procedural rigor of processing a traffic ticket.”
People caught in the guardianship system — our parents, friends, or neighbors, each with his or her own rich life history — become mundane cases that courts must efficiently dispatch.
Once established, guardianships are rarely terminated. People under guardianship may not have access to assets, medical records, lawyers, family, or even a telephone. Under those nightmarish circumstances, even a person who had only a temporary lapse in capacity or never needed a guardian at all might find it impossible to undo a guardianship.
Only 12 states certify professional guardians. That’s alarming since guardianship is a demanding job and guardians are responsible for every aspect of very vulnerable people’s lives. It is up to judges to determine if guardians are suitable and to monitor them after they are appointed. Given the lack of resources, oversight can be spotty, resulting in a minority of guardians ignoring, failing, or exploiting the people they are appointed to protect.
Despite the bad news, there is reason for optimism. Many states have adopted new protections and the commitment to making them work. In the wake of media coverage of shocking abuse by a professional guardian, the Nevada legislature enacted more effective reforms, including a guardianship Bill of Rights, a rule mandating that the subjects of guardianship petitions must be appointed lawyers and a new office to review guardianship cases. In Michigan, the attorney general and Supreme Court have created an ambitious and hard-charging elder abuse task force to tackle systemic guardianship failures and propose multi-faceted reforms. Other states are also implementing reforms and a superb national model guardianship statute is available for states to adapt.
Across the country, thoughts about incapacity and decision-making are evolving. More older adults are planning for when they might not be able to make decisions for themselves and expressing their wishes in powers of attorney and conversations with family. Mediation is available to resolve long-simmering family conflicts and other disputes that should not spark needless guardianships. And advocates are promoting less intrusive ways to help people make decisions that are both sound and consistent with the person’s preferences.
As more Americans with disabilities of all kinds need help making decisions, we must find ways to support them that don’t automatically involve depriving them of their autonomy. And we need to rethink the balance between safety and autonomy in order to provide the best possible quality of life. We need the resources to implement the strong protections that already exist in our laws, data we don’t yet have to track critical information about guardianships and the energy to continue to explore alternatives. Most of all, we need the will to treat each person who falls into the guardianship system as deserving of the same regard and individualized attention Britney Spears receives each time she has her day in court.