After #FreeBritney: How to fix conservatorships

·Senior Editor
·6 min read

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

Lawyers representing Britney Spears last week successfully petitioned a judge to remove her father from his role as the pop superstar’s conservator — a status that had given him sweeping legal authority over her financial and personal decision making. The arrangement had been the subject of intense attention and online advocacy since June, when Spears testified that the conservatorship she had been under since 2008 had “allowed my dad to ruin my life.”

Conservatorships, also known as guardianships in some cases, are a legal arrangement in which a court appoints a person or organization to care for someone who has been ruled incapable of caring for themselves because of mental health issues, disability, advanced age or other reasons. Conservators are often given extraordinary power over the lives of the people under their care, including how they spend their money, where they live, whether they’re able to have children or marry and what medical care they receive.

There are an estimated 1.3 million adults in the U.S. living under conservatorships, though lax data requirements mean the real number could be much higher. Many of those people benefit substantially from having a third party to handle important tasks they can’t perform themselves. But experts say the alleged abuses endured by Spears while under her father’s control are common.

Spears’s high-profile case has prompted a number of lawmakers to push for reforms to the conservatorship system. Several states have taken steps to give people under conservatorships more rights and limit opportunities for abuse. A number of high-profile members of Congress have also called for changes to federal conservatorship laws.

Why there’s debate

Issues raised with how the current conservatorship system runs are wide-ranging, as are proposals for how to fix it. One of the most common complaints is about the lack of options for people who need some help but don’t need the full-scale oversight that a conservatorship entails. They argue that there should be a variety of possible arrangements to accommodate each person’s individual needs. A popular alternative to conservatorships is the “supported decision making” model currently used in a handful of states, which empowers trusted friends and family to aid vulnerable people in making major decisions.

Another major area for improvement, advocates say, is oversight. A first step could be to establish a national record of conservatorships, since there is currently no reliable data on how many there are in the U.S. Experts also say people under care should be given more chances to appeal for the right to amend or even end their conservatorships if the arrangement is no longer serving their best interest.

Many disability and elder rights advocates caution against using Spears’s case to guide reforms of the conservatorship system. Some of the provisions being pushed by lawmakers in response to her story, like the financial protections in California’s new law, only help wealthy conservatees and do nothing for those in the most vulnerable circumstances, they argue. Others worry that her case will lead to an overreaction that undermines a conservatorship system that, for all its flaws, provides support to people who desperately need it.

What’s next

Though Spears is no longer under her father’s control, her conservatorship is still in effect. Her lawyers will seek to end the conservatorship entirely in a hearing scheduled for Nov. 12.

Perspectives

There should be a range of support options, with conservatorships as the last resort

“It’s all or nothing, on or off. They’re either competent, so they get to do everything, or they’re totally incompetent, so they don’t get to do anything.” — Jan Costello, mental health law expert, to Christian Science Monitor

Spears’s case should not be used as the model for reform efforts

“While Spears has drawn attention to guardianship, the process typically entangles those far less privileged. Changes in the pop star’s situation, as welcome as they may be, won’t themselves trigger the reform of a legal mechanism mainly experienced by people society has historically treated as expendable.” — Nina A. Kohn, Guardian

The system is too rigid to serve the people who need help the most

“What the law does not cover is a right to treatment along a compassionate continuum of care that evolves with the patient’s needs. … Families like mine need a mental health-care system that is flexible, funded and full. What we have is incomplete.” — Teresa Pasquini, Times of San Diego

Conservatorships are still hugely beneficial to many vulnerable people

“Doing away with conservatorships or substantially watering them down in the cry to ‘free Britney’ could make matters significantly worse for many. The disabled deserve as much liberty and freedom as adults as they can handle, as I know from raising a son with a mental health disability. But those who are mentally disabled or ill need help and legal protection, too.” — Michael Dolce, NBC News

People under conservatorships should be given more chances to prove their competence

“Current law places the burden of proving that they are no longer in need of conservatorships on conservatees. ... Reforms should be made so that the conservator who initiated the conservatorship is required to prove that the arrangement should continue, if the conservatee petitions to end it.” — LaDoris Hazzard Cordell, Los Angeles Times

There needs to be much more oversight to prevent abuse

“Having a situation with very little oversight where one person has extraordinary control over another person is just a recipe for abuse.” — Zoe Brennan-Krohn, disability rights attorney, to CalMatters

The goal of conservatorships should be to foster independence

“One of the things that we’ve seen with guardianships really commonly is that when you don’t have the ability to steer decisions around your life, you’re not in the driver’s seat, you disengage. So people don’t develop skills under guardianship, they actually lose skills under guardianship. And it keeps people trapped in the cycle where people are making decisions for them without consulting them.” — Sam Crane, legal director at the Autistic Self Advocacy Network, to Time

Anti-disability bias must be rooted out of the system

“At its root, the guardianship system is a function of a paternalistic society that believes it will always act in the best interest of other people — even if it means denying them autonomy. What's in someone's ‘best interest’ is often based on an idea of what a moral, rational, contributing member of society should look like. The more you deviate from this ideal, the more controlling and violating paternalism can be.” — Whizy Kim, Refinery29

Reforms will fail unless lawmakers are willing to invest money into solving the problem

“She is hardly representative of the typical conservatorship situation, with her fame and her wealth, of course. But interest in her situation may be what's needed to push legislators to better fund the system and to back needed reforms, especially selecting, training and monitoring guardians.” — Chris Farrell, Next Avenue

The conservatorship system should be abolished entirely

“The problem is not a few individuals abusing their power; it is guardianship itself. Stripping a person of their legal rights is inherently dangerous and dehumanizing. Guardianship is built on the patronizing assumption that people with certain disabilities are incapable of being full citizens and need a nondisabled person to act as their proxy in all things. While I do not discourage reform, what we ultimately need is abolition.” — Sara Luterman, Nation

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Photo illustration: Yahoo News; photos: Getty Images

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