If you’ve been following the news as of late, you’ve probably heard a lot about conservatorship. In fact, the case of Britney Spears has brought to light a lesser known legal arrangement which can occur between two people, one in which a mentally well adult is put in charge of a mentally unwell adult, or someone living with a severe cognitive impairment. And while many are (rightfully) screaming #FreeBritney — the 39-year-old pop star has taken the stand numerous times, sharing gut-wrenching testimony about what the last 13 years of her life have been like — there is a case to be made for conservatorship. When done right, conservatorship can actually enrich the lives of disabled individuals.
Let me explain.
What is a conservatorship?
The purpose of a conservatorship, also known as a guardianship, is to help people who are unable to manage their affairs, physically or financially. Conservatorships ensure continuing care for those who are unable to take care of themselves. They allow others to make decisions on their behalf, and they do so in a variety of ways – either fully, temporarily, or partially.
The reason for conservatorships vary. However, in California — where Spears’s case is — conservatorships are reserved for those who are “gravely disabled.” According to the California Supreme Court, “the Court will not let you establish an LPS conservatorship unless it finds beyond a reasonable doubt, that the mentally ill person, is gravely disabled. Gravely disabled means that, because of a mental disorder, the person cannot take care of his/her basic, personal needs for food, clothing, or shelter.”
How is Spears’ conservatorship working?
Of course, from the outside looking in, it doesn’t appear Spears has met these requirements. She is young and (seemingly) put together. Her Instagram is full of light, life, love, and positivity. In her videos, she is well-dressed and made-up, and Spears has spent the past 13 years working, touring, releasing albums, and judging ‘The X Factor.’ Spears even made an estimated $138 million performing in Las Vegas.
“I shouldn’t be in a conservatorship if I can work and provide money and work for myself and pay other people,” Spears told the court late last week. “It makes no sense. The laws need to change.”
Leslie Salzman, a clinical professor of law at the Cardozo School of Law and an expert on elder law, disability law and conservatorships, seemingly agrees. In a recent interview with NPR, she implied Spears’s case was “unusual.”
“Usually it’s not an individual who is young, who is working, who is very successful in their field — because that suggests a level of capability that wouldn’t meet the standard for legal incapacity,” Salzman says. “It seems quite unusual that you would have a person who was capable of going out and doing all the kinds of professional activities she was doing, who is found to be totally incapable of managing either her personal or property affairs.”
Who can benefit from conservatorship?
That said, while Spears may not meet the conservatorship criteria (at least not in California) that doesn’t mean that other seriously ill people don’t. Many people are literally dying to have someone care for them — people like my mother, who passed away last June from complications arising from an undiagnosed and untreated mental illness.
My mother was unwilling and/or unable to shower — depending on who you ask. She didn’t work and rarely dressed. Instead, she stayed in her bed, drinking and watching Netflix. She didn’t eat. The state of her home and being was disturbing, at best. It was disheveled. Chaotic. She lived in disarray. And her finances were a wreck. She lived on a limited income but had higher bills. She was burning through money. Bankruptcy and (potential) homelessness were in the cards. Not a question of if, but when. And there are others who live like she did.
Many individuals with serious (or severe) mental illness cannot care for themselves, particularly if their illness is unmedicated and unmanaged.
Some individuals will end up homeless. It is believed 169,000 homeless individuals live with a serious mental health disorder. Some end up in prison. More than 383,000 inmates have a mental illness, and — unfortunately — some will end up dead. The rates of suicide are high amongst untreated individuals.
How can conservatees be protected from abuse?
Of course conservatorship can be abusive. Some conservators use their “power” to harm the conservatee. Exploitation can (and does) occur. Some conservators are physically abusive. They hit, strike, or forcibly restrain the individual in their care. Others are verbally controlling. They call the conservatee names, shout slurs, or mentally and emotionally put them down, and financial abuse is also common.
“Because financial decisions are most typical responsibilities of a conservator, the signs of conservatorship abuse tend to be financial in nature, ex. the conservator stealing or embezzling money from the conservatee,” an article on the RMO Law Firm website explains. “[However,] conservatorship abuse can take many forms, from physical abuse (e.g. beatings, bed sores, broken bones) [and] emotional abuse (e.g. verbal abuse, undue influence) to financial abuse (e.g. financial affairs in disorder, unduly influenced gifts, theft of money, property or real property).”
Are these cases the rule, or the exception?
In 2010, the Government Accountability Office looked at hundreds of allegations of abuse over a period of 20 years (from 1990 to 2010). In their report, they state that they “could not determine” whether such abuse is widespread. In just 20 cases the GAO investigated more closely, they found that “guardians stole or otherwise obtained $5.4 million in assets from 158 incapacitated victims, many of whom were seniors.”
However, they did identify some areas that need reform. They found that “courts failed to adequately screen potential guardians,” that they “failed to oversee guardians once they were appointed,” and that “courts and federal agencies did not communicate effectively,” allowing allegations of abuse to go unaddressed.
Similarly, the American Bar Association has outlined ways the system of conservatorship must be improved. Their recommendations include:
- A “Continuous Quality Improvement” process to regularly monitor guardianships/conservatorships
- “Funding and technical assistance” to enable the use of “less restrictive options”
- “Expert training” for judges, court staff, lawyers, and social service agencies to help them collaborate
As the ABA states, “There will always be a need to protect persons who are truly unable to make and communicate informed choices from harm.” However, toxic conservatorships will only make bad situations worse. For the sake of those who truly rely on the conservatorship system, we must implement the necessary changes to reform it and root out abuse.
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