I usually start thinking about my next column at least a month ahead of time. But then sometimes events derail my plans, and I have to write about something else. The 2018 earthquake, the recent pandemic, and more than a few surprise elections, judicial decisions, or Congressional acts have caused me to re-rack everything and start over.
This time, my plans were hijacked by Britney Spears.
For the benefit of those of my readers who have been living in a cave for the last 20 years – because otherwise, you already know this – Britney Spears is a popular singer, and occasional actress, who has had a number of major hit songs. For the last 13 years she has been under a conservatorship in California, and she recently tried to have it overturned. In her support, a number of celebrities have started a “Free Britney” campaign to end the conservatorship.
Before I go any further, let me explain about the word “conservatorship”. We use this word here in Alaska, but we use it differently. In Alaska, we would say that Britney has a guardian. For us, a conservator only oversees the financial aspects of a person’s life, whereas a guardian also has charge of medical, housing and other decisions. But in California, guardians are only appointed for minors, and what we call an “adult guardianship” they call a “conservatorship”.
Either way, though, having a conservator appointed for you is a pretty big deal. It means that you lose the ability to control your assets, your earnings, and your spending. A judge enters an order placing that authority in someone else. It might be a friend or relative, an accountant or other professional, or a state office called the “public guardian”. It isn’t quite the same as being in jail, but your ability to do what you want is severely curtailed.
And because it is such a big deal, such a huge infringement on a person’s liberty, there are a lot of procedures and requirements put in place. In Alaska, before a judge can order a conservatorship several things have to happen. If the person doesn’t have an attorney to represent her, the judge has to appoint someone. The judge also has to appoint an investigator to dig into the situation and provide a detailed report. And the judge has to hold a hearing to give that person an opportunity to argue against the conservatorship.
The petitioner – the person or agency which is asking the judge to order a conservatorship – has to bear the burden of proof, and there is a legal standard the judge will have to follow to make the decision. To appoint a conservator in Alaska, the judge would have to find that the person is unable to manage her property and affairs effectively because of mental illness, disability, chronic drug use, or for some other specific reason. The judge would also have to find that the person has property that will be wasted or dissipated, or that protection is needed to secure funds for that person’s care.
How hard is it to have a conservator appointed for someone? It really depends a lot on the judge. I used to handle a lot of conservatorship appointments, where I was assigned by the judge to represent the defendant. I can honestly say that sometimes a judge appoints a conservator when it should not have been necessary, and other times the judge doesn’t appoint a conservator when he really should. The standards are very subjective, and if the judge tends to be a protective sort, he will tend to “do what he thinks is best for” the person, regardless of the legal standard. If the judge is a more legalistic sort, he is going to tend to let that person “make her own mistakes” unless it is absolutely clear that the legal standards are met, even if that might leave the person exposed.
So what about Britney? Should she have a conservator? There are certainly arguments to be made on both sides. On the one hand there is evidence of significant problems; she has been committed to mental health facilities in the past, and apparently her performance at the most recent hearing was concerning. On the other hand, during these years that she has been under conservatorship, she has engaged in many public performances, acting jobs, and recording sessions where she has done quite well.
The short answer to the question is, I don’t know. I don’t have access to any of the confidential information I would need to form a meaningful opinion.
What I do know is that it is best not to have to go through a conservatorship case, even if you do become incompetent. It is a significant intrusion on someone’s life and liberty, it can rupture personal and family relationships, and whether you get the “right” answer is hit-or-miss.
There are two documents which everyone should have, which can almost always keep you
out of conservatorship court, even if you become incapable of managing your own affairs. If you have a power of attorney, that allows a person you have appointed to manage your finances for you. And if you have an advance health care directive, you can appoint someone you trust to make medical decisions for you, if you can’t make them on your own. A third item, a revocable living trust, can also be helpful in these situations.
Having these documents is not foolproof, and sometimes even with the best planning it becomes necessary to go through the wringer in court. But perhaps 90% of the time, you can avoid that by having the right things in place. And that way, it’s your prerogative.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. I know I say that every column, but I thought I’d hit you, baby, one more time.
