But while the move secured her father’s temporary conservatorship, questions remain about just how much a conservator/parent can legally do in his or her adult child’s name. Taking over legal control of another person’s life is no easy task, says Margaret Lodise, whose Los Angeles law practice specializes in the trust and estate litigation that covers conservatorships. (Lodise is not involved in the Spears case.) To determine how the law navigates the murky issues involved in treating a mentally ill adult who does not want to be treated, NEWSWEEK’s Katie Paul spoke with Lodise about the legal wrangling involved and the obstacles faced by both conservator and conservatee. Excerpts:
NEWSWEEK: Legally speaking, what kinds of issues are coming into play as Spears’s parents attempt to take control of her finances? What different conservatorships are available? MARGARET LODISE: With any conservatorship, it depends on the facts of the specific case. In California, if a parent or anyone else wants to take over handling another adult’s affairs, it’s called a conservatorship—also called a guardianship in some other states. The basic standard is that you can obtain a conservatorship for somebody who needs assistance with the everyday activities of life, or somebody who is unable to resist fraud or undue influence or manage their own finances. There are two types, one a conservatorship of the person and one of the estate. Another one, and I don’t think this has been referenced in the Britney Spears case, is the more [restrictive] LPS conservatorship. It is only for the gravely disabled [or those who are an immediate danger to themselves or others]. It must be initiated by the state or a doctor [in order to medically treat someone against his or her will].
And her parents couldn’t request that? Her parents cannot initiate it. I get people calling me all the time about their kids having problems, whether drugs or mental issues, and they want to find a way to stop it. But I have to tell them, you can’t put them in the system. It goes way back to Gothic romance stuff, times when guys used to lock their wives away for mental problems. The standard has to be very high to prevent relatives from just locking other relatives away.
So what does a conservatorship of a person entail versus a conservatorship of an estate? A conservatorship of a person is for making medical decisions or making decisions about a person’s living situation when that person is not able to provide adequately for their health or basic daily living. A conservatorship of an estate [means you] handle their finances, which you would do if the person is not able to manage their finances or resist fraud or undue influence.
What control does a conservatorship give her parents? A conservatorship can go as far as to say that they, legally, are her. They could make decisions about how her money should be spent. She could be declared unable to enter into contracts, other than for very basic things like walking down to the store to buy food. Others conservatorships offer more autonomy. For example, in a conservatorship for a fairly high-functioning conservatee who is used to having access to funds, I could set up the conservatorship such that the conservatee might still have a checking account, but with a high level of monitoring by the conservator. There are a lot of levels that you can determine in each situation. Many conservatorships are for older adults suffering from dementia or Alzheimer’s. Usually someone comes in and says, “Mom’s losing it” or “Dad’s losing it,” and that parent hadn’t created a will or trust or put a power of attorney in place to enable their children to handle their finances once they’re no longer able to. You use a conservatorship if you can’t use some alternative.
What can Britney do to fight against a conservatorship if she doesn’t want it imposed? Before a permanent conservatorship is established, she’s entitled to a trial, including a trial by jury, to determine if that is appropriate. If the conservatorship is established, she can at any time come in and petition to terminate it. The same kinds of criteria would be considered in establishing it in the first place: typically, doctors’ reports or testimony from people involved in the situation. It’s always a matter of the facts of the specific case, since people have a right to be eccentric and do unusual things. So it’s supposed to be a relatively difficult thing to establish, and the person is entitled to counsel to fight it. For most of what happens in a probate court there is no jury trial; conservatorship is the one area where there is, because it’s an infringement on a person’s rights.
What would Britney need to demonstrate in order to get her finances back? The burden is really on [the father or family] to establish the conservatorship in the first place. A series of California probate code sections talk about capacity, and specific evidence of mental problems that would impair the ability to handle these things, and that’s usually the foundation on which trials for conservatorship issues are based. You look at what level of functioning she has. For instance, she could say, “Yes, I spend a lot of money, but I choose to and it’s a conscious decision on my part.” You have to look not only at the behaviors but also at what’s causing them. So just behaving eccentrically without evidence that it’s caused by a mental issue or evidence that it’s hurting the person financially [would make a conservatorship difficult to justify].
And it would be significantly more difficult to establish a conservatorship of the person? Arguably, you’re OK if you know how to feed yourself, figure out where to live, and make medical decisions. So, yes, it would be more difficult. I think it’s easier to show that someone’s confused about their finances than confused about decisions they make about their person. But you can get a conservatorship of the person [on the grounds that] the person is not in a position to adequately decipher what the doctor is advising or make a decision as to what they want to do.
How long does a conservatorship last? It’s limited to 30 days initially, but they set a date to come back and can extend it. Eventually you can establish a permanent conservatorship. Usually when you file for a permanent one, typically you get a court date within four to six weeks, depending on how backlogged the court is. Evidently they decided in the Spears case that wouldn’t be fast enough, and they had to establish to the court’s satisfaction that there was an emergency that required appointing a temporary conservator prior to the hearing.
