The news earlier this month that Jamie Spears has agreed to step down from his long-time role as conservator of his daughter Britney Spears’ estate “when the time is right” has once again shone a light on the singer’s 13-year-long conservatorship, leading many to consider capacity issues for the first time. What is a conservatorship? Moreover, how might the more controversial aspects of Spears’ case have played out in Scotland? 

What is a conservatorship? 

A conservatorship is a protective measure, available under California law, intended to protect those who are unable to make their own decisions due to mental incapacity. There are two main types of conservatorship, a Lanterman-Petris-Short Act conservatorship (commonly known as an LPS conservatorship) and a probate conservatorship. LPS conservatorships may only be obtained on petition by the local authority, following an assessment that the proposed conservatee is ‘gravely disabled’. 

Britney Spears is subject to a probate conservatorship, which comprises two components: 

• conservatorship of the person, aimed at protecting an individual who is unable to provide for their personal welfare needs; and 
• conservatorship of the estate, aimed at protecting a person who is unable to manage their own financial affairs, or who requires special protection from fraud and undue influence. 
  
  

Britney Spears’ father was initially appointed as conservator in both roles, although he shared responsibility for the estate with a co-conservator. Due to ill health, he stepped down as conservator of the person on a temporary basis in 2019. 

In order to obtain probate conservatorship, the proposed conservator must provide clear and convincing evidence to the court that the conservatorship is necessary to protect the proposed conservatee, and that this is the least restrictive measure available to create that protection. One aspect of the evidence required is a capacity declaration – a written statement detailing the nature of the proposed conservatee’s incapacity, provided by a doctor who has examined them. 

Is there an equivalent in Scotland? 

The closest Scottish equivalent is guardianship. A guardianship order also involves an application to the court, known as a Summary Application. Any adult with mental capacity is able to make an application for a guardianship order if they have an interest in the affairs or welfare of the relevant individual.

Similar to probate conservatorship, a guardianship application may relate to welfare powers, property and financial powers, or both. Regardless of the powers being applied for, the application must be accompanied by two independent medical reports, and a ‘suitability report’, which comments on the general appropriateness of the order sought as well as the suitability of the proposed guardian. The specific requirements of the suitability report will vary depending on the powers sought in the guardianship application. Each of these reports must be based on an assessment conducted within the 30 days prior to the submission of the application. 

Once the summary application is lodged with the court, a date for a hearing is fixed. All ‘interested parties’ must then be notified of the application and the hearing date at least 21 days prior to the hearing.

To be able to grant the guardianship order, the sheriff must be satisfied that: 

• The adult is incapable in relation to decisions about their property and financial affairs and/or their personal welfare.
• This incapacity is likely to continue. 
• There is no other less restrictive means available to provide the necessary protection for the individual.
• Making the order will benefit the individual concerned.
• They have given relevant consideration to the views of all interested parties. 
  
  

The sheriff will consider the application and supplementary reports at a private hearing and, if satisfied that all the above criteria have been met, grant the guardianship order. 

Controversial aspects of conservatorships

Both conservatorships and guardianships are intended as protective measures for those who are unable to make their own decisions. So, why has Britney Spears’ conservatorship become so controversial, and is the Scottish system vulnerable to the same criticisms? 

Timing

One of the criticisms levelled at Britney Spears’ conservatorship is the speed with which it was granted. Within days of entering hospital under an involuntary psychiatric hold in February 2008, she became subject to a temporary conservatorship. This was extended on various occasions until it was eventually made permanent eight months later. 

It would not be possible to obtain a guardianship order within a few days, given the requirement to give 21 days’ notice to all interested parties (although it is possible to request the appointment of an interim guardian in the summary application for a maximum period of three months). Practically speaking, given the requirement to submit three separate reports, and the pressures on court time, it is likely that obtaining a guardianship order would take considerably longer. This can lead to the unfortunate scenario where an adult is deemed incapable to make their own decisions, but lacks anyone else to do so for them. 

Duration

Britney Spears has now lived under her conservatorship for 13 years, from the age of 27. While many see this as excessive and unnecessary, it is impossible to comment further when details of her mental incapacity are (quite rightly) kept out of the public realm. 

In Scotland, the initial guardianship order will generally last for a period of three years, however it is open to the sheriff to grant an order for any period of time. This includes an indefinite period, although it is reasonably uncommon for such an order to be made in light of developments in human rights law. When the initial period of the order approaches expiration, a renewal application will usually be made, which requires the same rigorous requirements outlined above to be met once again. 

Salary

Jamie Spears has been financially compensated for his work as conservator, earning a percentage of his daughter’s contracts, while his co-conservator of the estate reportedly receives a salary of $426,000 per year.

Many perceive this as exploitative, and contest the ethics of allowing an individual to receive an income from the estate of an incapacitated person. Indeed, some perceive the continuation of the conservatorship as being financially motivated. 

In Scotland, whether or not a guardian is entitled to be remunerated is a judgement for the sheriff. The starting point is that there is a presumption against guardians with welfare powers being financially compensated, but a presumption in favour of guardians with financial powers receiving remuneration. Whether this is appropriate entirely depends on whether compensating the guardian will benefit the adult, and may depend on the size and complexity of the estate to be managed. If the sheriff decides that the guardian should receive remuneration, it is for the Public Guardian to set the rate. It seems unlikely that a guardian would receive anything comparable to the sums outlined above. 

Inability to oppose

Upon her release from hospital, and upon discovering that a petition for conservatorship was to be filed by her father, Britney Spears reportedly instructed counsel to oppose the appointment of her father as conservator, as she did not wish him to have control over her life. When her representative arrived at court, he was told that the singer had been assessed as lacking capacity to retain counsel and was discharged by the court in favour of a lawyer it appointed. This lawyer opted not to oppose the appointment, and so it was granted. 

It would be 13 years before Britney Spears would speak out publicly against her conservatorship, and more specifically the appointment of her father, in an emotional testimony made in court earlier this year. Beyond claiming that her conservatorship had been controlling and abusive, she stated that she was not aware that there was any route available for her to oppose it. 

In Scotland, notice must be served on all ‘interested parties’ at least 21 days before the guardianship hearing, and despite having been judged to lack capacity, this will always include the individual concerned, and they are always entitled to lodge objections. One of the guiding principles of the Adults with Incapacity (Scotland) Act 2000 is that the present and past wishes and feelings of the individual must be taken into account. It is therefore unlikely that a person would be appointed as a guardian where the individual had expressed strong opposition, without good reason. 

Power of attorney

Conservatorships and guardianships offer an important protection for those who are genuinely incapable of managing their own affairs, and are in most cases used by family members to protect their loved ones. However, as outlined above, both measures are flawed solutions to unfortunate situations. Britney Spears’ case demonstrates that mental capacity issues can arise at any age, and it is never too early to consider planning for possible future incapacity. A power of attorney is a simple document that allows an individual to choose whom they would like to make decisions for them should they find themselves lacking capacity (even on a temporary basis); permits a level of control over which decisions that person should be allowed to make; and, importantly, prevents the need for a lengthy (and often costly) court process. 

As of this month, Britney Spears’ father has reportedly filed a petition to step down as her conservator, allowing impartial third parties to take up the reins as conservators of the person and estate. However, there has been no petition to end the arrangement altogether. Whether the ‘Free Britney’ movement will achieve its ultimate objective remains to be seen. 

This article was written by Justine McCluskey. For further information, please contact Malcolm Rust or Justine McCluskey of our private wealth and tax team.