Most everyone at some point over the past several months has heard something about Britney Spears's conservatorship and her battles with her father, who has been serving as her conservator. Conservators, commonly called guardians in Texas and Florida, are put in place through court authority to manage the affairs of those who are no longer capable of making their own decisions about care (as a guardian of the person) or finances (as a guardian of the estate). While most people's lifestyles and fortunes are decidedly different from Ms. Spears's, the problems she has had and continues to experience are a cautionary tale for all of us about guardianships/conservatorships.
Guardians for adults* are sought to manage issues for persons who are incapacitated. This includes people who are in comas, who suffer advanced forms of dementia, or who are experiencing other serious injuries or illnesses. Guardians are also commonly appointed when a person has intellectual disabilities or who otherwise have special needs. A guardian of the estate guides financial matters while a guardian of the person is in charge of personal and medical decisions. A person does not always need a guardian of both the person and estate; each situation is different.
In the case of Ms. Spears, two people (her father* and her lawyer, who has since resigned) were acting as conservators/guardians. Financial institutions and other attorneys also had involvement. In less complex circumstances, when a guardian is needed for both the person and the estate, usually only one person is in charge of both the estate and person.
Generally, guardianships guide the life decisions of those cannot do this for themselves. Courts typically prefer to limit guardians as much as possible. Before a guardian is appointed in Texas, for example, the person petitioning the court must demonstrate that less restrictive alternatives have been attempted. Assigning someone as a representative payee for public benefits can address issues related to financial needs. In other cases, a management trust or special needs trust might be used to manage assets on behalf of someone as an alternative to guardianship.
Whether a person is the guardian of the estate or of the person – or both – a court supervises the guardianship, and the guardian is held accountable to that court. This court supervision is in place to act as a power safeguard preventing guardians from mismanaging property or otherwise taking advantage of those in a guardianship.
Periodic detailing of guardian actions through reports to the court provides this oversight. An annual accounting is typically required when a guardian manages a ward’s finances. And frequently, courts will require the guardian to seek permission before making major decisions for the ward. This includes areas such as terminating life-support or requiring medications (in the case of guardianships of the person), or selling real estate or other property (in the case of guardianships of the estate). Additionally, a guardian of the estate must often post a bond as an insurance policy protecting the ward's estate from mismanagement.
Some guardianships work remarkably well because the guardian is competent and trustworthy. When a close relative or friend who genuinely has your best interests in mind is serving, things can run smoothly and properly. Professional guardians, often attorneys, usually also act in the ward’s best interest. However, not all guardians do. Some exploit the ward, steal from the ward, or otherwise abuse the ward. In these situations, either the ward or someone looking out for the ward needs to petition the court to either dissolve the guardianship or dissolve the guardianship.
Britney Spears asserted that her conservators (guardians) are unnecessary. She said they refused her permission to marry and have more children. She also alleged the conservators have charged exorbitant conservatorship and legal fees, which they have paid to themselves out of her estate. She also said in June that they required her to take psychiatric medications she does not want to take. She also states that she was required to use a court-appointed attorney who did not communicate how to end her conservatorship or hire an attorney she believes has her best interest at heart.
Sometimes this situation leads to great heartache when an estranged relative, like Britney Spears’s father Jamie, is given the reins as guardian and will not let go. Given that Ms. Spears has a multi-million dollar estate, the court believed additional professionals acting on Britney's behalf through the guardianship were suitable. Ms. Spears contended that after a thirteen-year conservatorship, the conservatorship should be dissolved as she is stable, can work, and can provide for her family.
A guardian will act until the court issues an order ending this responsibility which usually follows:
The likelihood of a guardian being appointed over you increases significantly if you do not name an agent under a durable power of attorney to handle your affairs if you are incapable or an agent under a medical power of attorney (in Texas) or a surrogate under a healthcare surrogate designation (in Florida) to make your medical decisions for you if you cannot. In the absence of these legal documents reflecting your wishes should you become incapacitated, family members may petition a court to appoint a guardian to manage your well-being. Of course, not each person who is under the direction of a guardianship (usually called the ward) wants to be there. This has been the case in Britney Spears's situation.
The process is simple to avoid an unwanted guardianship. Meet with an estate planning attorney to draft your durable power of attorney documents to reflect your wishes should unforeseen physical or mental health illness befall you. You might also consider using an inter-vivos trust such as a revocable living trust to set up in advance how someone else could manage your assets if you were incapacitated. An estate planning attorney can help guide you in choosing the best agents for your situation. You should also always name back-up agents. (McCreary Law Office recommends naming at least two alternates.) Your chosen representatives will be those you trust to exercise your will if you are unable, and you will have peace of mind knowing that future decisions will reflect your wishes.
For advanced estate plans, McCreary Law Office also prepares a declaration of pre-need guardian. This allows you to state now whom you would want to serve as your guardian in case anyone ever petitioned a court to have a guardian appointed over you. Even if you have a proper durable power of attorney and medical agents named, some rare situations – such as if you refuse to live in a safe environment and suffer from advanced dementia – would still require a guardianship of your person.
If you would like to discuss your estate plan or making sure that you have a proper plan in place in case of incapacity, please contact McCreary Law Office or call the Jacksonville, FL office at 904-425-9046 or the Houston, TX office at 713-568-8600.
*Recently, Spears's father petitioned to resign as her conservator. A hearing is scheduled later in September 2021 to review his petition.
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