Guardianships & Conservatorships

| Scott Barbur, Barbur Law

“I just want my life back.”
— Britney Spears, 2021

You may have heard the terms guardianship and conservatorship, but you may not know that they are distinct legal arrangements. While commonly used together in the same proceeding, guardianship deals with having control over someone’s person, while conservatorship deals with having control over someone’s money matters.

Essentially, when a person cannot care for themself or their finances, a judge can appoint a guardian and/or a conservator to step in. As with all legal arrangements, exploitation can and sometimes does occur. On the flip side, many guardians and conservators make decisions for those they are legally assigned to care for with the utmost integrity and in accordance with the wishes of the person in their care.

Exhibit A. #FreeBritney

Unless you’ve been living under a rock, you’ve no doubt heard of the Free Britney movement, which began in 2009, and has recently resurged in the public eye. The Cliff’s Notes version: the popstar exhibited some instability with respect to her mental health in 2008, at which point, her father, Jamie Spears, and a team of attorneys, took control of Britney’s estate and many aspects of her life through a court-appointed conservatorship.

The goal of an effective conservatorship in Britney’s situation would be to work toward terminating the conservatorship through evaluation and restore her autonomy over her affairs. What has transpired, however, has been a 13-year prison sentence. Britney Spears has not controlled her finances since 2008. She has voiced her desire to get married and have children, but her conservatorship would need to end for this to happen. It’s been rumored that she’s not allowed to paint her kitchen cabinets without consulting her conservators. Every aspect of her life is being controlled, despite her clear ability to make decisions. Simply put, her economic and legal decision-making is not her own.
In a recent public hearing, Britney Spears talked about her suffering because of the conservatorship: “I truly believe this conservatorship is abusive. There are thousands of abusive conservatorships.” Britney was recently granted the right to appoint an attorney of her choice to battle her conservatorship, which is a big deal and could lead to formally ending her oppressive legal arrangement. Fingers crossed. #FreeBritney.

Exhibit B. Success Stories

While we have explored how guardianship and conservatorship can involve excessive restrictions on someone, guardianships and conservatorships are not all bad. In fact, they’re often necessary and most of the time, they’re good.

When an adult becomes mentally incapacitated and does not have an advance directive to guide their medical wishes or a power of attorney to handle their finances, or, when they DO have these documents in place, but important decisions are not expressly covered in them, an adult guardianship and/or conservatorship comes in handy. For an array of health reasons, (i.e., stroke, dementia, Alzheimer’s, etc.) the unfortunate reality is that many older adults experience times late in life when they can no longer make decisions for themselves. This is the most common reason an adult guardianship is needed.

Another example where guardianship and conservatorship prove valuable is in the case of special needs. These arrangements are not merely put in place to protect the elderly; young adults with intellectual or developmental disabilities can benefit greatly from a guardianship and/or a conservatorship. In cases where an individual can make many decisions on their own but require help managing some aspects of their life, a limited guardianship or conservatorship can be tailored to fit their needs.

A good guardian or conservator will consider the wishes of the person in their care and will seek to protect them when it comes to making financial and/or medical and personal decisions. In either arrangement, the biggest advantage is peace of mind for family members. The family can trust in the court system to appoint someone with full cognitive abilities to make sound decisions and to care for their loved one.

Because establishing a guardianship, a conservatorship, or both, removes considerable rights from someone, it is prudent to exhaust alternative arrangements first. Nonetheless, we have assisted our clients in creating many successful guardianships and conservatorships. At Barbur Law, our stance is always to plan now for anything that could happen later. We encourage all our clients to have an advance directive and a power of attorney in place, which go a long way in so far as honoring one’s wishes in the event of incapacitation. Of course, we can’t plan for everything, which is why we take pride in helping our clients in all phases of life – especially when life takes unexpected turns.

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