Posted in Triplett & Carothers on December 4, 2022
While Britney Spears’ conservatorship case and her multimillion-dollar fortune were extraordinary circumstances, her legal condition is not uncommon: Over 1.3 million U.S. adults are living under guardians or conservators, who control about $50 billion of their assets, according to the National Center for State Courts.
There is some confusion over distinctions between guardians and conservators. In some states, guardianship applies when the ward is a minor, and conservatorship is for an incapacitated or incompetent adult.
Other definitions further muddy the waters. According to some descriptions, a guardian controls personal, daily decisions, while a conservator focuses on financial matters. Let us look at adult conservatorships.
Rights and duties
A conservator generally has rights similar to those of a parent of a minor. The conservator’s authority may sometimes cover specific areas of responsibility, and it may extend for a long, short or temporary period.
Judges might also appoint a temporary conservator to bridge a gap while reviewing a more formal petition. As a rule, all conservatorships remain intact until a judge terminates them.
A conservator who has authority over the financial elements of a protected person’s life will take charge of that person’s money, investments and property. The conservator’s signature is needed to access those assets.
Significant decisions, such as selling property or securities, may also require a court order. In any case, conservators may find it prudent to obtain a court order in advance, to confirm the legitimacy of the decision.
By a different token, a conservator who is charged with physical care will decide where the protected person should live, such as whether they should reside in an assisted living facility or a private home, and will likewise oversee the protected person’s health care. Some conservators combine general authority over finances, health care and all other major decisions; others have a more limited scope.
A conservator undertakes a range of duties. Those who are looking after finances ensure that bills are paid, taxes filed and investments monitored, and that sufficient funds are kept available for daily outlays.
Each transaction needs to be recorded for submission to the court. Life, health and liability insurance should be maintained too. Conservators with authority over health and physical welfare attend to health care and safe housing.
A protected person’s needs are paramount, supported by doctors, social workers, and legal and financial professionals. Typically, mental rather than physical incapacity underlies a conservatorship.
However, some physical conditions, such as chronic intoxication, drug abuse or prison confinement, may warrant intervention. Two key questions: Can the protected person take care of themselves in terms of food, shelter and hygiene? Or are they a danger to themselves, usually in the sense of being at risk of suicide or self-harm? (Britney was considered to be so.)
Protected persons still enjoy rights and are often capable of making many decisions. Some are able to manage their own finances, make or alter a will, or marry (though Britney was restricted from signing a marriage license). Some may make medical choices — though again here, Britney was constrained.
Legal systems do provide some theoretical safeguards, although not necessarily meaningful ones. Protected persons must receive a copy of the paperwork, whether or not they can read it. A court investigator regularly visits the protected person and the conservator to check for any signs of abuse and monitor physical conditions and quality of life.
Reforms have been proposed since long before Britney’s case brought attention to conservatorships. The National Council on Disability has proposed that courts provide more information on conservatorship and access to government-sponsored legal advice.
The rules and situations are complex. If you find yourself in a difficult family situation, work closely with qualified professionals.
Reach out to Roz Carothers and her team at Triplett & Carothers to learn more.