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In defense of the guardianship and conservatorship: a tool to protect the most vulnerable
2022 PRINDBRF 0279
• Practitioner Insights Commentaries
• June 24, 2022
(June 24, 2022) - Lathrop's Alison Zinn and Amy Erickson examine guardianships and conservatorships in light of the public outcry over such arrangements involving Britney Spears and other celebrities.
Celebrities including Brian Wilson of the Beach Boys, singer-songwriter Joni Mitchell, actor Mickey Rooney, and pop star Britney Spears have each been under court-ordered, high-profile, and controversial guardianships and/or conservatorships. But guardianships and conservatorships are not just for the rich and famous. According to the National Council on Disability, there are currently an estimated 1.3 million Americans under guardianship or conservatorship, and courts across the United States oversee at least $50 billion of assets subject to conservatorship.
Recently, the high-profile conservatorship of Britney Spears has given rise to public outcry, calls to #FreeBritney, and renewed appeals to reform legal conservatorships and guardianships. Among other things, reform advocates argue that guardianships and conservatorships should be more transparent, subject to better oversight and clearer standards, involve professionals as a last resort, and steps should be taken to ensure that alternatives to guardianships and conservators are considered and employed. But is the public outcry warranted? Or can guardianships and conservatorships be an effective tool when used appropriately to protect the most vulnerable?
What are guardianships and conservatorships?
A guardianship (also known as a conservatorship of the person depending on the state) is the legal process of determining a person's capacity to make decisions about their personal affairs. Similarly, a conservatorship is the legal process of determining a person's ability to make financial decisions.
A person typically becomes subject to a guardianship and/or conservatorship after a hearing with the court finding: (1) that the person is incapable of effectively making personal and/or financial decisions; and (2) a guardianship or conservatorship is necessary to meet the needs of a person subject to guardianship and/or conservatorship.
A guardian is a person appointed by the court who has the legal authority to make decisions to provide for the care of the person subject to guardianship, including decisions relating to food, clothing, shelter, health care, education, and social and recreational activities. A conservator is a person appointed by the court who has the legal authority to make financial decisions for the person subject to a conservatorship, including the protection, preservation, and use of a person's assets. A person subject to a guardianship or conservatorship is referred to as a "protected person" or a "ward".
Under most state laws, certain individuals are favored or have "priority" to be selected as guardian and conservator. These individuals include a person nominated by the protected person, an agent appointed by the protected person, the protected person's spouse or partner in a civil union, and the protected person's adult child or parent. In circumstances where there is no one available or willing to serve, or those with priority are not appropriate to serve, the court may appoint a professional guardian or conservator. In most circumstances, the expense of a professional appointee is borne by the protected person's estate.
Under what circumstances are guardians and conservators appointed?
When someone is unable to receive and evaluate information for purposes of making a decision concerning their person or their assets, the appointment of a guardian and/or conservator may be warranted. For example, guardians are frequently needed when an individual is hospitalized, lacks capacity to make medical decisions, and does not have a medical power of attorney or proxy authorizing another individual to make medical decisions on their behalf.
A guardian — often a family member or close friend of the protected person — can provide insight into the wishes of the protected person and make a decision in the protected person's best interest when the protected person is unable to do so for himself. It is important to note that lack of decision-making ability is not centered on poor choices that people often make and are entitled to make; rather, this concerns a person's inability to understand or evaluate the basis and outcomes as to a particular decision.
Individuals who lack capacity, or who have diminished capacity, are susceptible to undue influence by scam artists and other wrongdoers. In such circumstances, a guardian and/or conservator can provide protection for the individual. For example, guardians and/or conservators are often appointed after a court finds that a wrongdoer has been taking advantage of an individual with diminished capacity.
Such wrongdoers may be family members or caregivers who purport to be acting the person's best interest, but in reality, are acting in their own interest by, for example, converting the protected person's assets for their own use.
A guardian and/or conservator may also be warranted where an agent under a medical or financial power of attorney fails to act in the principal's best interest. For example, a guardian may be warranted where an agent under a medical power of attorney refuses to follow medical advice of the principal's doctors and is instead making medical decisions that medical professionals believe are causing further harm.
In addition, a conservator may be warranted where an agent has used a power of attorney to further their own self-interest (for example, by transferring the principal's property to themselves) rather than to protect the individual with diminished capacity.
How are guardians and conservators appointed?
Any person interested in the welfare of an individual to be protected by a guardianship may file a petition with the court asking the court to determine: (1) the individual lacks capacity; and (2) the appointment of a guardian is warranted.
Likewise, any person interested in the estate, affairs, or welfare of a person to be protected by a conservatorship may file a petition, asking the court to determine that a conservatorship is in the best interest of the person to be protected by the conservatorship. Although a finding of incapacity is not needed to establish a conservatorship, a court typically must make a specific factual finding that the individual does not have the ability to manage their own property and that property is at risk for waste and dissipation.
The petitioner must prove by clear and convincing evidence that the person to be protected by a guardianship lacks capacity or the person to be protected by conservatorship is unable to manage property.
Petitions seeking the appointment of guardian and/or conservator generally need to include:
•The name and contact information of the person for whom a guardian and/or conservator is sought;
•The name and contact information of any spouse, adult child, brother or sisters, or other kin;
•The name and contact information of any person holding a medical or financial power of attorney;
•A statement of the reason why the guardianship and/or conservatorship is necessary;
•A description of the alleged incapacity or impairment;
•A description of what less restrictive means have been attempted and considered, including how long such less restrictive means have been attempted and a description of why the less restrictive means are not sufficient to meet the person's needs;
•The name of the proposed guardian and/or conservator and the reason why they should be selected; and
•A statement about the type of guardianship and/or conservatorship needed, including whether there should be any limitations on the guardianship and/or conservatorship.
Notice of the petition seeking an appointment of a guardian and/or conservator must be provided to the person for whom the guardianship and/or conservatorship is sought. In addition, the person for whom a guardianship and/or conservatorship is sought generally has an absolute right to be present at the hearing.
After receiving the petition for guardianship and/or conservatorship, the court must appoint a court visitor. A court visitor is a neutral party appointed by the court to conduct a limited investigation regarding the circumstances leading to the petition for guardianship and/or conservatorship. After investigation, the court visitor makes a recommendation to the court about whether the individual needs a guardianship and/or conservatorship, who should serve in those roles, and the type of guardianship and/or conservatorship needed.
The court is also required to appoint an attorney for the person for whom the guardianship and/or conservatorship is sought if: (a) a guardian is appointed on an emergency basis; (b) the person for whom the guardianship and/or conservatorship is sought requests an attorney; (c) the visitor recommends the appointment of an attorney; or (d) the court determines that it is otherwise appropriate to appoint an attorney. More often than not, an attorney is appointed.
What evidence is needed to demonstrate that a guardian or conservator is appropriate?
Again, a guardian or conservator cannot be appointed simply because an individual is making "bad" decisions, or decisions with which the petitioner disagrees. Rather, as noted above, the individual must be found by clear and convincing evidence to either lack capacity (in the case of a guardianship) or be unable to manage property (in the case of a conservatorship).
To prove incapacity or inability to manage property, the petitioner must present evidence of the person's impairment. Most often, this evidence is in the form of testimony or other evidence from a medical professional who has treated or evaluated the person for whom and guardian or conservator is sought. At the request of the person for whom the guardianship and/or conservatorship is sought (or in the court's discretion), the court may also order an independent medical evaluation.
Are there any limitations on guardianships and conservatorships?
Once appointed, a guardian generally has the authority to make decisions concerning the support, care, education, health, and welfare of the protected person, such as where the person lives or what level of care and healthcare treatment they receive.
To the extent appropriate or necessary, however, the court may limit the powers of the guardian. In fact, the applicable statutes typically make clear that, whenever feasible, the court should grant the guardian only the powers that are necessary and will encourage the independence of the protected person to the maximum extent possible. Many states also limit the guardian's authority to seek mental health and substance abuse treatment on behalf of the protected person.
A conservator, once appointed by the court, generally has the authority to manage the financial affairs of the protected person. As with a guardianship, however, the court should only grant the conservator those powers that are necessary to ensure the protection of the person and their property subject to conservatorship, while continuing to encourage the involvement of the person subject to conservatorship in decision-making.
Further, certain actions by a conservator may require prior court approval. These include making changes to a will, designating new beneficiaries for assets such as life insurance or retirement benefits, or conveying interests in real property.
Both guardians and conservators are also subject to ongoing court oversight, including annual reporting requirements concerning, among other things, the guardian's plans for current and future care and medical treatment of the protected person, and the conservator's ongoing management of the protected person's assets. As an added layer of protection for conservatorships, many states also require a conservator to post a bond.
Can a guardian or conservator be removed?
A protected person may petition the court to terminate the guardianship or conservatorship at any time. A court is required to terminate a guardianship if the person subject to guardianship regains capacity. Comparably, a court is required to terminate a conservatorship unless it can be demonstrated by clear and convincing evidence that the continuation of the conservatorship is still warranted and in the best interest of the protected person.
The court may also modify a guardianship or conservatorship if the authority previously granted to the guardian or conservator is now excessive or is insufficient. Finally, the court may remove a guardian or conservator who fails to act in the best interest of the protected person.
Was the public outcry over the guardianship and conservatorship of Britney Spears warranted?
Since 2008, Britney Spears has been subject to a guardianship and conservatorship (known in California as the conservatorship of the person and the conservatorship of the estate), vesting control of her personal and financial affairs in her father, James P. Spears.
The conservatorship was first established following Ms. Spears' high-profile divorce and a series of public incidents that gave rise to questions about her mental health and possible substance abuse. Notably, however, the key documents and evidence concerning Ms. Spears' medical condition that would have been used to establish her conservatorship under California law are confidential documents only accessible to the court and the parties.
As a result, it is difficult to evaluate whether the conservatorship was warranted in the first place and if so, how long it should have continued. The confidential or suppressed nature of these cases is commonplace for protection of the person's most sensitive and intimate information from public consumption. This makes it extremely difficult for outside parties to truly understand the basis for and continuation of protective appointments which creates fertile ground for speculation.
What is clear, however, is that Ms. Spears has been critical of her conservatorship, questioning her father's fitness for the role and contending that the control he was exercising over her life was abusive and not in her best interest. Mr. Spears has also come under criticism for taking a $16,000/month salary as conservator, while also earning commissions for his work on Ms. Spears' tours and shows.
Mr. Spears was suspended as Ms. Spears' conservator in September 2021, and in November, a California judge terminated the conservatorship altogether, finding that it was no longer warranted, as Ms. Spears argued through her counsel.
Although there may be plenty of things criticize when it comes to Ms. Spears' long-running conservatorship, using Ms. Spears' conservatorship to tarnish all guardianships and conservatorships is illogical. While Ms. Spears has alleged that her conservatorship was used to inflict abuse and harm on her, the typical guardianship and conservatorship — when used appropriately — can be effective mechanisms to protect society's most vulnerable from abuse and harm.
Guardianships and conservatorships allow family members to serve as medical decision makers for unconscious or otherwise incapacitated persons who do not have a medical power of attorney. They can also be used to protect seniors suffering from dementia from financial exploitation or other outside undue influence. And guardianships and conservatorships can be an effective mechanism to remove power from an agent who is abusing a medical or financial power of attorney and failing to act in the best interest of the protected person.
In response to public scrutiny and criticism of guardianships and conservatorships, many states have increased the layers of protection and court oversight in guardianship and conservatorship proceedings in recent years.
More often than not, the court will appoint a lawyer to advocate for the protected person and a court visitor to render an objective opinion about whether a guardian and/or conservator is warranted. Finally, and notably, as Ms. Spears ultimately did, a protected person may petition the court at any time to remove/replace a guardian and/or conservator or terminate the guardianship and conservatorship altogether.
Although the guardianship and conservatorship process can and should continue to be reformed, where necessary, it remains true that guardianships and conservatorships can be effective tools for protecting the most vulnerable.
Alison E. Zinn is a partner and trial attorney in Lathrop GPM's Denver office. She focuses on trust and estate litigation and elder law, handling disputes concerning wills, trusts, probate fiduciaries, beneficiaries, guardianships and conservatorships. She can be reached at [email protected]. Amy E. Erickson is an associate in the firm's Minneapolis office, where she has a robust probate, trust, guardianship and fiduciary litigation practice. She can be reached at [email protected].
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