A blaze of recent publicity, and a great deal of legal maneuvering, has turned on the issue of the conservatorship of Britney Spears. A female pop artist who has sold more than 100 million records—and is one of the top-selling musical artists in history—Britney Spears has lived a sort of double life. On the one hand, she’s a wildly successful singer, who has made millions over a career that is now in its third decade; on the other, she has had personal struggles on a very public stage. As a result of some of these struggles, Britney’s father successfully petitioned for a conservatorship that has now been in place for thirteen years.
Britney is struggling to get out from under the conservatorship and certainly to get rid of her father as the conservator, whose behavior she has complained about bitterly. Her claims have given rise to a movement—#FreeBritney—with fans that monitor her every word and social media post for signs that she’s in trouble and needs help. The movement’s website runs under the headline “Is Britney Free?” The Britney Spears conservatorship made the front page of the New York Times, in an article headlined Pop Star Wants Her ‘Life Back” in Plea to End Father’s Control, and was the subject of a recent New Yorker exposé as well—Britney Spears’s Conservatorship Nightmare. (Justia columnist Lesley Wexler comments here on the parallels between Britney’s case and the call to “Believe Women” that arose out of the #MeToo movement.)
Britney’s efforts to be released from the conservatorship have gotten lots of attention this year through two documentaries—one released by the New York Times called Framing Britney Spears and another by the BBC called The Battle for Britney: Fans, Cash and a Conservatorship. Then the world got to hear from Britney herself, in a June 23, 2021, court hearing in which she gave testimony over the phone, for all the world to hear, about the conservatorship and her objections to it. She was emotional and angry and argued in no uncertain terms that the conservatorship has been harmful to her.
This dramatic case has brought to public attention a legal arrangement which is rarely the stuff of headlines, though it is not in itself particularly rare. The Britney Spears issue has, at least for now, brought conservatorship out of the shadows.
Dealing with Incapacity
It is extremely unusual, to be sure, for a woman like Britney Spears to be under conservatorship. She is a blazing star of popular culture, a woman who has earned and continues to earn enormous amounts of money, a celebrity with millions of followers and fans. She is 39 years old—another fact that is unusual for a person under conservatorship. Mostly, it is older people who are subject to this legal regime—people well beyond the prime of life. Charles de Gaulle was famously quoted to the effect that old age is a shipwreck. Not of course a total shipwreck for everybody; people today, in general, live longer than before, and they live, on the whole, healthier lives. But for some people—indeed for many people—old age is indeed a shipwreck. It can bring about a drastic failure of capacity—capacity in the legal sense, which is the (legal) right to run your own life, make your own decisions, care for your own body and deal with your own assets big and small. This problem is exacerbated by increasingly long lifespans—there are more years when people are likely to function at less than full capacity. Babies and children lack legal capacity—and rely on the care of parents, guardians, or the state to survive. Some people with disabilities, especially intellectual disabilities, lack legal capacity in a way that continues into adulthood (or occurs in adulthood due to disease or injury). The law offers different tools and arrangements to deal with adults who lack the requisite capacity to care for themselves and/or handle their own financial affairs. Conservatorship (also called guardianship) is one such arrangement.
Conservatorship as a legal device goes back quite far in American history; it has been legally recognized since at least the colonial period. Indeed, something like conservatorship is necessary in a system that recognizes the private ownership of property, while dividing the world into those who are, and those who are not, sui juris—that is, fully capable of acting on their own. And the boundaries between those two domains can be quite indistinct. Children are defined as incapable by age alone. But for adults, it can be difficult to determine who is incompetent at any moment in time, and the categories themselves are socially and culturally variable. Very few of the people institutionalized a century ago would be confined today; they were misfits and deviants whom the law deemed “insane.”
There are other legal tools that people can use to handle an expected or possible loss of “capacity.” Very notably, there are various kinds of powers of attorney. A power of attorney (POA) authorizes somebody else to enter into financial and other transactions on your behalf; this is generally somebody you chose yourself, and you can grant narrow or expansive powers. A power of attorney can be structured so that it sits dormant until you lose the capacity to make such decisions for yourself, a so-called springing power of attorney. Or it can take effect when it is first signed for a particular period of time or purpose. Or it can be designed to be “durable,” that is, to last as long as needed, including after the person who granted it loses the capacity to make financial decisions or take legal actions such as revoking the power of attorney People can also execute a variety of documents related to healthcare decisionmaking—health care proxy designations, which delegate the power to make medical decisions if the patient lacks the capacity to do so, or health care directives, which spell out instructions for health care providers about the types of care the patient would and wouldn’t want to receive in different circumstances.
But executing a power of attorney (or health care directives) requires advance planning; and how many of us are good at advance planning? Although aging is universal, and loss of capacity relatively common, many people simply do not plan for either. In any event, at some point, it becomes too late: the ship has left the dock, on the way to its looming shipwreck. Moreover, there are no formal legal controls over power-of-attorney arrangements. You simply fill out a form and sign your name. The person who has been given the POA presents it at the bank, to the credit card company, etc., as proof that they have the authority to act. But there is no ongoing control over the person holding that power. There are no accounting obligations or required approvals. If that person abuses the power, it is likely to go unchecked and unnoticed, especially if the person who granted it has lost their mental capacity.
Conservatorship is a legal way to fill the gap. In some states, the term “conservator” is not used; the person who fills this role is called a “guardian.” Regardless of terminology, the arrangement is more or less the same. In either event, the person or institution appointed is a fiduciary, supposed to act exclusively on behalf of the “ward” (the person in need of protection); thus, the conservator is basically a kind of guardian for adults. Conservators deal with those who have descended into the dark night of dementia, or who are physically or intellectually impaired to the point where they cannot handle the necessities of daily life.
On the Nature of Conservatorship
There are two types of conservatorships. Conservators “of the person” can be appointed for wards who cannot care for themselves. In California, for example, this type of conservatorship can be put in place for someone “who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter” under Section 1801 of the Probate Code. Very importantly, the “conservator of the person” can and will make medical decisions. A different type of conservatorship involves appointment of a conservator “of the estate”; this is for someone “who is substantially unable to manage his or her own financial resources or resist fraud or undue influence.” The conservator of the estate will pay the bills, handle investments, and see that the financial side of life flows smoothly. A ward can be subject to both types of conservatorships or just one, depending on their needs and circumstances. In Illinois, the two functions have different names: the “conservator” deals only with financial affairs; what would be the “conservator of the person” in California, would be a “guardian” in Illinois. In California, the law also provides for a “limited” conservatorship, for a “developmentally disabled adult”; the idea here is to establish a kind of mini-conservatorship; wards of a “limited conservatorship” keep all of their rights and powers except for those “specifically granted to the limited conservator.”
To put a conservatorship in place, a petition must be filed in court, followed by a hearing. The proposed ward can attend the hearing, but apparently this does not usually happen. (In Britney’s case, one fight was for her right to be represented by independent counsel in the conservatorship proceedings.) If the proposed ward is seriously impaired, nobody would expect the ward to take part in the proceeding. The petition can be contested, either by the ward, or by somebody else, but this probably rarely happens. If the right forms are filled out, and nobody protests, the petition is likely to be successful. Before a conservator can be appointed in California, an “investigator” will check to see that all is in order and that conservatorship is warranted. Usually, the answer to this question will be yes. The court will then appoint a conservator. This is generally a member of the family. Generally, too, this person will be both conservator of the person and conservator of the estate. But this does not always happen. Conservators have to file yearly reports; and the court investigator is also supposed to check periodically. to make sure that the conservator is doing the job properly. In theory, a conservatorship is a highly supervised arrangement in which big decisions are made only with court approval; in practice, it does not always work this way. This is in contrast, say, to an ordinary trust arrangement, where the trustee usually operates with almost complete independence unless and until a beneficiary files a lawsuit alleging a breach of fiduciary duty.
In Britney’s case, the court appointed both types of conservators—for the person and for the estate. According to recent news reports, a licensed professional conservator has taken over the job of “personal care” for Britney Spears; and the financial side has been separated from the “personal” side. Professional conservators do this job for a living, or, very often, as part of their law practice. This work does not come cheap. As of 2021, the annual average pay for a conservator in California is $36,000 a year. Obviously, professional conservatorship is mostly for rich people. For those who lack a family member, or a friend willing and able to take on the job, California provides a Public Guardian, who can work as a conservator. The court appointed a probate lawyer named Sam Ingham to serve as Britney’s “advocate” in her conservatorship case—for which she is forced to pay him an annual salary of $520,000. This is in addition to the fees charged by her father (a total of $5 million so far, which includes a percentage he takes from her gig and merchandise revenue) and his co-conservator. (The recent burst of negative publicity has caused many of those involved in this conservatorship to run for the hills. Ingham has asked for the court’s permission to step down, and another lawyer, Matthew Rosengart seeks to be appointed in his place. Her manager has resigned, and a wealth management firm that was set to join as a co-conservator has requested to withdraw as well.)
Probably, in most cases, family love, and a sincere desire to help older family members, will act as a trigger for the petition. Mom or Dad seem to be failing and to need this protection. But sometimes the trigger is a combination of love and greed: the children are afraid that Mom or Dad are falling prey to scam artists and other birds of prey. Or are frittering away their money, not cashing checks, making weird investments, failing to pay the gas and electric bill, and the like. But the children may also worry that their inheritance might be in danger of slipping away. Sometimes the family itself is the bird of prey: relatives want conservatorship so that they can control the assets, more in their own interest than in the interests of the ward. Conservators themselves might be the ones doing the scamming and pillaging. There is, after all, an inherent contradiction in the system: people who take care of old folks are usually the ones who get the money when the old folks die. Is a Crown Prince always anxious for the King, his father, to live to a ripe old age? Probably not. A nationwide study of conservatorships, published in 1987, exposed some shocking results: abuses and outright horror stories. Perhaps the situation has improved since then. But it is hard to be sure.
On paper, the process seems smooth, well-designed, and eminently fair. How it operates in practice is another question. Surely it is far from perfect. The conservator has quite dramatic power and authority. Historically, the person under conservatorship had basically no say over any aspect of life. The ward was treated almost as if they were civilly dead. All power was in the hands of the conservator. The law has been moving in the opposite direction: toward more flexibility, which means cutting down the power of the conservator. Judges can, in almost all cases, put limits on the authority of the conservator. The judge, in short, has the right to craft the conservatorship to meet the needs of the ward, and to allow the ward to do as much as is sensible for a ward to do. For example, the ward can be allowed to control wages or salary. And to marry. Indeed, one of Britney Spear’s main complaints touched on this point: “I want to be able to get married and have a baby,” she said in court.
An Uncommon Use of a Common Legal Arrangement
The saga of Britney Spears is ongoing. The information that has been made public, including her own words in the June 23 court hearing, suggests that the system can be abused, and probably (in this case) is being abused. It should come as no surprise that the danger of abuse is greatest when a great deal of money is involved. Her case is even more ripe for abuse since the money is still being produced—by her. She has alleged that her conservators (including her father) make decisions about how much she must work and what gigs she must accept. This is certainly a strange use of a conservatorship. It turns the very notion of the arrangement on its head and allows the conservator to treat the ward as a kind of indentured servant. Moreover, the fact that she is capable of working in an incredibly demanding career over several decades raises real questions about her need for a conservator—especially one appointed to care for “the person.” Maybe she’s careless with money—who knows? But she is surely capable of feeding and clothing herself; providing her own shelter; seeking out medical care; and earning plenty of money to support herself and a cadre of hangers-on. She has a personal net worth in the neighborhood of $60 million. She has also co-parented two children with ex-husband Kevin Federline and never had her parental rights terminated despite several bouts of contentious custody litigation. Exactly why would the court continue to allow someone to serve as her legal guardian?
In her public testimony, Britney complained that she has lost all control over her life under the conservatorship. Specifically, she claims that she wants to have an IUD birth control device removed so she can have another baby and would like to marry her boyfriend. Her father, allegedly, has refused both requests. There is absolutely no reason that he should have power over these decisions. The legal standard for capacity to marry is lower than the standard for almost any other legal act. Plenty of people who are incompetent enough to need a conservator are still competent enough, in the eyes of the law, to marry. There is no evidence that Britney’s competence falls below this very low standard (and lots of evidence that she operates way above it). She should get married if she wants to; her conservator might sue to annul the marriage on the grounds that she lacked the capacity to marry, but this is not a legal action he should win. She can also file a request for permission to marry despite the conservatorship, a claim she could well be able to win.
There is also no reason that Britney’s father or any other conservator should have decision-making power over her birth control use. Although conservators of the person are sometimes given the power to make medical decisions for wards, that is only true under California law if the ward is “deemed unable to give informed consent to any form of medical treatment” because she is “unable to respond knowingly and intelligently to queries about medical treatment or is unable to participate in a treatment decision by means of a rational thought process.” The decision about birth control is a unique one because of constitutional protections that every individual has over the choices about whether to bear or beget a child. Since the 1960s, the Supreme Court has recognized that the right to make choices about reproduction is fundamental and cannot be infringed by the government without a compelling reason. The delegation of power by a court to a conservator to make birth control, pregnancy, or abortion decisions for a ward, seems like an obvious infringement of this fundamental right.
The refusal to let Britney remove an IUD, if true, is tantamount to involuntary sterilization, even if it is reversible. Involuntary sterilization has had an uneven and colorful history in this country. At the height of the eugenics movement, which began more than a century ago, many people held the belief that sterilization of “defectives” was important for preservation of the culture and the welfare of the country. In the famous case of Buck v. Bell (1927), Justice Oliver Wendell Holmes, Jr., upheld the involuntary sterilization of a “feeble-minded” woman, uttering the famous (or infamous) line that “Three generations of imbeciles are enough.” In fact, historians have shown that the underlying facts of the case were quite different from Holmes’ assumption; the victim in the case was not an “imbecile” at all, but merely a poor and uneducated woman. Up to 1965, nearly 70,000 people were involuntarily sterilized under state laws permitting such procedures to be forced upon people with mental retardation, epilepsy, and, in some states, habitual criminals—all of this based on a total misunderstanding of human heredity.
The recognition of the constitutional right of privacy was one of the factors that helped overthrow the laws on involuntary sterilization. Moreover, in the second half of the 20th century, the whole enterprise of “eugenics” was thoroughly discredited. More sophisticated knowledge about human heredity, and about intellectual disability and mental illness, along with the rejection of the racist nature of eugenic “science,” contributed to this rejection. Nobody believes any longer in “born criminals.” For a court to allow a conservator to dictate birth control decisions seems like a throwback to a discredited chapter in legal history.
There are still cases in which someone other than the individual might make the decision about childbearing. But those cases are the exception. Although the law varies by state, generally courts will only grant the power to make such a monumental decision upon strong proof that it serves the best interests of the ward or is justified by medical necessity. In California, where Britney’s conservatorship was granted and is overseen, the law sets a very high standard for sterilizing someone against their will. There are nineteen statutory provisions (California Probate Code §§ 1950-1969) that spell out the limited circumstances in which a person can be sterilized involuntarily. There is nothing in Britney’s case that would justify delegating this decision to a third party—certainly not to her father, with whom she has had a long, contentious relationship. Britney should have complete control over this decision, as well as many others, and perhaps over all of them.
For more ordinary people, it may be that the biggest problem in the world of conservatorship is an invisible one: underuse. There are no doubt many people who really should be under conservatorships but are not (like some of the aged donors who were scammed by the Trump campaign into making recurring contributions far beyond what they could afford, or were even aware of). But Britney’s saga is a case of (alleged) overuse; conservatorships that are unnecessary and abusive—and that serve to benefit the conservators more than the ward. How often does this happen? There is no way of knowing. This is because of two traits that are characteristic of conservatorship law (and of much of family law, in fact). First, the process is extremely local. There is no overall control. The system might run smoothly in County A, less smoothly in County B, while injustice and misbehavior run wild in County C. The second trait is low visibility. Outside of the immediate parties, and the rare situation of a Britney Spears, nobody much knows or cares how conservatorships operate. These arrangements are important to society but they are part of the routine, workhorse side of the legal system. On paper, there are strong protections for the ward. These protections have grown over the years, at least in the formal law. Still, as is so often the case, we can ask: do they really work in practice? Britney Spears and her groupies would answer with a strong and resounding no, in her particular case. But how many other cases are there?
Joanna Grossman and Lawrence Friedman have co-authored a new book, The Walled Garden: Law and Privacy in Modern Society, which will be published later this year by Rowman Littlefield Books.