Britney Spears’ terrible, heartbreaking conservatorship seems almost surreal. How can someone with so much success and wealth find herself in such a position? And could what happened to Britney happen to you or me?
The answer, unfortunately, is yes.
It’s a topic that has been in the news lately with Britney’s recent court battle and on TV with the Netflix movie I Care a Lot, starring Rosamund Pike as a ruthless private fiduciary who pursues personal wealth at the expense of her conservatees. In Britney’s case, while there has not been any evidence alleged of actual fraud or financial abuse in her conservatorship, she has lost virtually all control over her finances, her business affairs and the most personal aspects of her life. Moreover, she does not want her father to be the person to hold that much power or control over her life.
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I will not focus on the sensational aspects or dirty details of Britney’s conservatorship proceedings or her seemingly desperate efforts and pleas to be freed from them. The judge in Britney’s case has taken control over virtually all meaningful decisions for Britney’s personal, financial and business matters.
It Can Happen to Anyone
As in Britney’s case, a judge can literally take charge of all your personal and financial decisions and appoint a third party to make these many decisions on an unlimited basis. These proceedings can exact a horrible emotional toll, in addition to being tremendously expensive and fraught with significant delays. Perhaps the worst part is that the court proceedings are completely public information — as evidenced by the many stories in the media regarding Britney’s situation.
Conservatorship doesn’t just happen to wealthy child entertainers (or to adults who make bad decisions with relationships, children, money and/or drugs and alcohol). Conservatorship can happen to anyone, if and when you’re too disabled (due to an accident or illness) or too incompetent (due to infirmity of mind, old age or dementia, or a similar condition) to handle your own affairs.
A long-term client of mine was recently injured in a car accident just before his 50th birthday. As a result, he is now legally blind and has the mental capacity of a 10-year-old. Because his estate plan anticipated and established his desired chain of command to act on his behalf, no formal court proceedings were ever required. His wishes were honored, and he avoided all the drama that Britney has endured.
If you are under age 60, there is a four- to five-time greater likelihood that you will become disabled, due to an accident or illness, for a period of over one year, than your chances of dying. This is a result of modern medicine, which can often prevent death, but not cure the illness or condition causing the disability. If you are over age 60, then there is a 70% chance that, during your remaining lifetime, you will be too disabled or incompetent to act for yourself, for a period of at least two to 2½ years.
How Britney’s Sad Situation Played Out
Britney’s conservatorship was conducted under California law as Britney was a California resident at the outset of those proceedings. A review of Britney’s experience can serve as a guideline or warning for us all.
In 2007 Britney suffered a very public meltdown following the birth of her two sons and her divorce from Kevin Federline. This began a tumultuous few months in which Britney seemed to be spiraling out of control.
In 2008, police put Britney under 72-hour involuntary mental health hold. We all recall the many pictures of Britney shaving her head. This 72-hour hold was the first step to establishing an involuntary conservatorship under California law, generally referred to as the Lanterman-Petris-Short Act (the “LPS Conservatorship”). This act seeks to protect those persons whose mental illness causes them to be gravely disabled. In California, this is a very rigid, high standard, as it should be. The LPS Conservatorship must be renewed annually. The general probate conservatorship is indefinite. The court or judicial system is taking over an individual’s most fundamental rights to life and liberty. This standard typically requires a court to determine that the individual is unable to provide for his or her necessities for life, including food, clothing and shelter.
Britney lost custody of her children. Her father, Jamie Spears, filed a conservatorship petition in the Los Angeles County Superior Court. Jamie Spears was appointed Britney’s co-conservator along with an attorney selected by Mr. Spears. As co-conservators, they were legally empowered to control virtually every aspect of Britney’s financial and personal life, including otherwise private health care decisions.
Despite a formal finding by the court that Britney was so seriously impaired that she was unable to act on her own behalf, Britney continued to work, produced an album and appeared on the TV show X Factor as a judge. Britney even maintained a Las Vegas residency performance from 2013 through 2017 with Planet Hollywood. That show won the best of Las Vegas award in both 2015 and 2017.
Those facts are very hard to reconcile with the Los Angeles Superior Court’s determination that she was so seriously impaired that she could not take care of herself or was unduly susceptible to manipulation.
There are two key takeaways for Britney’s story:
- First, this can happen to you.
- Second, you need the right legal documents in place now so that you establish the persons that you trust to act on your behalf when there is a call to action.
Documents That Can Protect Your Rights
Durable Power of Attorney
You should have a properly prepared Durable Power of Attorney, to allow the person (or persons) of your choosing to take over your financial affairs when you cannot act. If you do not, the alternative is some unwanted or unknown third-party being appointed as your “agent” by a judge (like with Britney). This Power of Attorney should provide a quick, inexpensive, non-court-proceeding way for your designated agent to step in, such as by getting letters from two examining doctors stating that you are no longer able to act. And the Power of Attorney should have a “come back in” provision, so that when you may be able to act again, you can get reinstated immediately without having to go to court, like Britney.
Power of Attorney for Personal Care
This document covers the gap between issues that may arise that are not purely financial (covered by the financial Power of Attorney) and medical (covered by the Advance Health Care Directive). This document is designed to work in tandem with those documents to cover that gap to ensure that the persons you designate have the legal authority to act. Examples of issues to cover include changing the residence or state of residence on domicile, providing for transportation, arranging care or treatment for pets, or to choose, screen, hire and discharge household nursing and other employees, arrange for religious or spiritual needs and access to U.S. mail.
HIPAA and Advance Health Care Directive
You should have two properly prepared documents that will allow someone you choose to handle your health-related decisions if you can’t — an Advance Health Care Directive (also known in some states as a Durable Power of Attorney for Health Care or Health Care Proxy) and a HIPAA Authorization. The authorization allows access to your otherwise private medical information so informed health care decisions can be made for you under the directive.
Trust
If you own a home (regardless of equity) or have non-real estate assets totaling over about $200,000 (the amount or value in each state that triggers a requirement for probate varies), you may also want to have a Living Trust to hold your assets (or be the beneficiary of certain of your assets). You can control and access the Living Trust, as the “Trustee,” for as long as you wish and are capable.
If you seek to avoid income or estate tax, costs for long-term care or to better protect your assets from the spend-down required for assistance with long-term care costs, then you may also consider an Irrevocable Trust. When you no longer can act for yourself (again as determined by two doctor letters), the next person(s) that you have named will act. And, like the Power of Attorney, you can regain authority or “come back in” when you’re able to act again. The beauty of a Living Trust (if it has all your assets properly in it) is it can completely avoid not only a court conservatorship while you’re alive, but another difficult court process known as a probate when you pass away.
Keep in mind that no legal document is bulletproof. Third-party “bad actors” may still force you into a court conservatorship — not unlike in the Netflix movie I Care a Lot. However, unlike in the movie, they couldn’t be as sneaky and underhanded about it. In the movie, Pike’s character gets appointed as conservator seemingly without the conservatee’s knowledge. In reality, formal notice to the proposed conservatee is required before any court in any state would grant any other person the authority to take control over your financial and personal life. However, that is where our reality check and protections end. These bad actors could possibly gain control, particularly if there are questions raised as to whether you were legally competent to sign the described documents or were unduly influenced by someone to do so. However, the mentioned documents, even if attacked, may still be instructive to a judge as to your wishes and may be persuasive.
The California Superior Court established an LPS Conservatorship for Britney’s protection in 2008. Britney’s condition certainly improved over the years as she was able to resume her very popular performances. Britney’s conservatorship was moved from the strict, limited LPS proceedings over time to a Probate Conservatorship under California law. The Probate Conservatorship proceedings are indefinite in California and many other states. Probate Conservatorships are intended to protect individuals with impaired capacity to make intelligent decisions. These persons typically suffer from dementia or developmental disabilities. Britney does not seem to fit that profile from the casual observance from the few opportunities to observe her communication on the news or the heart-wrenching statement recently provided publicly to the courts and the news.
Takeaways for Us All to Remember
As happened with Britney, a court may merely default to appoint or empower your closest relative in the absence of a properly enacted estate plan. That person may have their own conflicting agenda (particularly since they will have access to your money and can pay themselves for acting). Alternatively, that person just may not get along with you, your family and your other advisers. You should establish your desired “chain of command” detailing the persons you trust to act on your behalf. Britney was, and certainly is now, unlikely to nominate her father for such a role in the future.
As with all legal documents, you should seek proper, professional, experienced legal counsel to assist you with your decision as to who should act on your behalf if you cannot. For some, the best choice may be to appoint an independent, non-family person or even a bank or trust company. An independent professional with no “emotional baggage” is less likely to benefit from your trust estate.
Sadly, Britney didn’t know that proper estate planning is actually a form of self-empowerment. Britney sadly did not appear to obtain the best legal advice, in advance of her problems and along the way as they took place. This is why selecting the right estate planning attorney is so important. None of us knows or has any guarantees on what the future may bring. The estate plan should be put in place now, providing piece of mind that you are protected from many of the issues endured by Britney. You should seek an attorney who is a certified specialist in estate planning.
While you may not relate to Britney or what she is going through, the little-known fact is that proper estate planning is not only about what happens after you’re gone, your estate plan can also keep you out of court while you’re living (and with a lot less public drama!).
A proper estate plan provides self-empowerment and establishes your “chain of command” if you are unable to act.
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