Britney Spears’ Sad Song … Warning: This Could Happen to You

(Image credit: Getty Images)

published 14 July 2021

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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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.

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.

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.

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.

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.

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.

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.

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.

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.

Disclaimer

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.

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Founder of The Goralka Law Firm, John M. Goralka assists business owners, real estate owners and successful families to achieve their enlightened dreams by better protecting their assets, minimizing income and estate tax and resolving messes and transitions to preserve, protect and enhance their legacy. John is one of few California attorneys certified as a Specialist by the State Bar of California Board of Legal Specialization in both Taxation and Estate Planning, Trust and Probate.