Professor Del Russo Explains: Conservatorships
Updated: Jan 6, 2022
Pop star Britney Spears was in the news recently as the national media recounted substantial parts of her statement delivered to the court.
Many were appropriately disturbed by Ms. Spears’ statement. I call this a "statement" because it does not appear that Ms. Spears was subject to cross-examination. Therefore, her account is not "testimony". In fact, her narrative was read from a prepared document. The news accounts do not include any other information about evidence in the conservatorship proceedings.
Although Ms. Spears account was compelling, often disturbing, and truly tragic, it was still marked by self-serving assertions.
Conservatorships are among the most intrusive civil legal proceedings in American jurisprudence, other than involuntarily civil commitment.
A conservatorship, also known as a guardianship, is a legal tool that puts a court-appointed guardian or “conservator” in charge of making decisions for another adult who is deemed incapable of managing their own affairs. They are typically instituted for elderly adults, people with mental illnesses or those with intellectual or developmental disabilities. By definition, the subject of a conservatorship has substantial impairment that makes them vulnerable in a number of ways.
California law provides this definition about a person who is potentially subject to conservatorship: “a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter,” or for someone who is “substantially unable to manage his or her own financial resources or resist fraud or undue influence.”
What makes the Spears situation difficult to assess is that the available information is vague and certainly incomplete. There are news accounts of her unpredictable, somewhat bizarre behavior in the past and not much more.
There are further complications in figuring out what to make of Ms. Spears captivating, high-profile narrative. While some of the proceedings are open, including Ms. Spears request for a public forum (which the court provided last week), most of what occurs is confidential.
Fundamentally, these matters involve medical decisions. The court likely has reports/testimony from psychiatrists, psychologists, social workers, and other physicians. Whatever the source of Spears’ mental health struggles, past or present, they require a diagnosis and an evaluation of the impact, not only of her mental health, but any psychotropic medications she may be prescribed. Medical compliance is also always an issue, as is the patient/litigant’s progress.
And that’s the rub. We only have a fraction of information. And what we have is self-serving and scripted. While there may be much truth, the question is how much? And whatever the precise details of Ms. Spears predicament, what is the evidentiary support?
The good news is that perhaps these highly intrusive proceedings, which are often unambiguous and quite necessary, are now under a national spotlight. There have been suggestions that conservatorships are instituted in too many situations where there may be other less intrusive remedies and protections for the disabled. Moreover, there can be degrees of conservatorship, including a "limited conservatorship" which is less onerous. Advocates have argued that the limited conservatorship is underutilized.
As Zoe Brennan-Krohn, a staff attorney with the ACLU’s Disability Rights Project argues: “It’s supposed to be a last resort because it’s so invasive. It’s supposed to be only if there’s nothing else that works,” Brennan-Krohn says. “But in reality, it’s very often the first resort.” (Time Magazine June 2021)