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Conservatorship - Britney Spears

What can Britney Spears teach us about conservators and guardians?

by Robert Fischer | Contributor
August 9, 2021

Britney Spears' conservatorship made headlines after a California court decision to deny the pop star's request to remove her father as conservator over her financial affairs. Hordes of fans and sympathizers demanded Ms. Spears' autonomy from the conservatorship under the hashtag FreeBritney.

Not only did the public outcry put the legal framework of conservatorships and guardianships under the microscope, spurring the introduction of new pieces of legislation designed to modify the legal conservatorship doctrine, but it also created discussion in the average American household about its use and, potentially, its abuse.

California is among states that separately appoint a conservator to manage a protected person's financial affairs as well as a guardian, who manages the person's health care and safety. Many states appoint one individual as a guardian, who also fulfills the duties of a conservator with decision-making authority over both health care and financial matters of a protected person.

Though some social media and news outlets have at times misstated the issues of the Spears saga, which has led to a misunderstanding of the legal principles behind guardianships, there are still valid questions that remain. For example: Should the actions of conservators and guardians be subject to more scrutiny? Should the protected person have more input in the process?

Conservatorships and guardianships can be an extremely useful legal tool to ensure that people and their loved ones are cared for. The trouble is that guardians and conservators both have an incredible amount of power over the lives of someone else that can be devastatingly exploitative if such power falls into the wrong hands. The Spears case shows us just how difficult it can be for the protected person to save themselves once the decision has been made to appoint a conservator or guardian.

Let's explore some common questions about conservatorships and guardianships to provide a more complete explanation of the inner-workings of the role. Then, we'll identify some key estate planning solutions that people might employ to reduce the risk of a guardianship or conservatorship when planning for themselves or their family members.

What is the difference between a conservatorship and a guardianship?

Though the terminology may vary from jurisdiction to jurisdiction, in general, and for the purposes of this article, a conservator is an individual appointed or approved by the court to engage in the handling of a person's financial affairs. Conversely, a guardianship will refer to an individual approved to handle another person's physical health and safety.

Both a conservatorship and a guardianship can apply to both minors who are without parental figures or adults who have been deemed incapacitated. Incapacity is a legal concept that can be loosely defined, for purposes of a conservatorship or guardianship, to describe a person who is incapable of possessing a certain minimum baseline ability to make decisions concerning either or both their personal care and safety or their finances. When a person is deemed to be incapacitated, the court may appoint a conservator and/or guardian to stand in the protected person's shoes to make these decisions are made on their behalf.

In most states, the conservator's ability to exercise dominion over the ward's health or financial decisions can range from a grant of authority to exercise full and complete control or may be limited in scope based on the specific needs of the person. Likewise, the court-ordered relationship can either be temporary or permanent, depending on the circumstances.

Let's explore some common questions about conservatorships and guardianships to provide a more complete explanation of the inner-workings of the role. Then, we'll identify some key estate planning solutions that people might employ to reduce the risk of a guardianship or conservatorship when planning for themselves or their family members.

Why would a child need a conservator or guardian?

In the case of minors, the parents of a child may name someone to raise the child if both parents pass away before the child becomes an adult in their last will and testament.

In the event a guardian is not named by the parents, either because the parents did not have a will or because the parents failed to designate a guardian in a will, a judge will decide who will raise the child. This decision will obviously need to be made without understanding the preferences of the parent. Without the assistance of the parents' written will, the court will be left to look to the closest relatives of the child, despite the potential that this may be contrary to the parents' wishes.

Like a conservatorship or guardianship related to an incapacitated adult, the minor's guardian will make all financial and health care decisions for the child in place of the parents.

How is the conservator selected for adults?

In the case of minors, the parents of a child may name someone to raise the child if both parents pass away before the child becomes an adult in their last will and testament.

Upon a petition to appoint a guardian or conservator, the court will make a determination as to who the most appropriate and fit party is who is both willing and able to serve. This is often family members, but it can also be any other willing party. In some cases, a third-party neutral corporate guardian or conservator may be appointed for a fee.

Who serves if the conservator dies?

Conservatorship - Document review session

In the event that a conservator would predecease the protected person, the court will often look first to the will of the conservator to see if they may have indicated a successor to their position. If a successor has not been designated, the court will either look to family members or corporate guardians to assume the role.

Does the protected person's preference for the appointment of or removal of the conservator matter?

It may come as a surprise to many that the court's decision to appoint or remove a conservator is often not based to any large degree on the protected person's personal preference. As the result of the Spears case, some lawmakers are seeking to carve out an ability for a protected person to petition the court for the appointment of a third-party guardian when they are dissatisfied with the services of the conservator. Currently, however, the laws of most states don't consider the protected person's dissatisfaction to be paramount in a court's decision-making to remove a conservator.

The court's approach seems unreasonable to many people. After all, it would seem that the protected person should have someone handling their assets whom they like and whom they trust.

What happens when a conservator is taking advantage of their power?

Much like the case of a trustee serving a trust beneficiary or an agent under a power of attorney, a conservator owes a fiduciary duty to the protected person. That is, generally, a conservator has an obligation as act in the best interests of that person and to carry out their duties reasonably and prudently.

Self-dealing behavior, such as using the protected person's assets for personal purposes or borrowing assets, is universally prohibited. Likewise, imprudently investing or managing the assets is ordinarily also trigger a breach of the fiduciary duty.

Often, state law will provide for some manner of judicial review when the protected person or any person associated with that person alleges that a conservator or guardian is mishandling the assets that they are responsible for.

Usually, these claims will result in a hearing where the court will review the inventories created by the conservator and all other modes of record keeping. If a court finds that the conservator has acted improperly or has otherwise failed to keep record of their activity, the court may order that the conservator be removed, or may penalize them with a surcharge.

The problem is that impropriety may be exceedingly difficult to prove despite the duty to keep accurate records. Transactions could be hidden or could be so complex so as to not be readily apparent based on a review of the records.

Though there is more than enough opportunity for a conservator to take advantage of the system, the existence of the above-mentioned safeguards may reassure families that their loved one is not being taken advantage of. It is true that these safeguards can be very helpful to provide redress in the event of impropriety and self-dealing. However, it is by no means a perfect system.

Estate planning tools

Any person can be the subject of a conservatorship or guardianship. Fortunately, there are ways that a person can minimize the risk that unscrupulous people might take advantage of them or their children through the use of a couple of important estate planning tools.

Power of attorney

Before a person is deemed incapacitated, they are considered by a court to have capacity to create a will and a power of attorney. Once it is determined that a person cannot make basic decisions about their finances or health, and a court determines them to be incapacitated, the inference usually follows that they are then deemed to be unable to appoint an agent that they would trust to act in their best interests under a power of attorney and unable to determine the distributions of their assets upon their death under their will.

Therefore, time is of the essence. When a person created a power of attorney document before they were deemed to be incapacitated, and the power of attorney named an agent to handle the types of financial decisions that a conservator would cover, the court will very likely not appoint a conservator for these purposes. It would be a duplication of effort.

The advantage of the strategy of appointing an agent is that the person who creates the power of attorney can effectively dictate who will make financial decisions for them should they be unable to.

Keep in mind that if a power of attorney document conveys to the agent the ability to make certain financial decisions, but not others, the court may still appoint a conservator to make those decisions that are not covered.

Also, there is potential that the agent under the power of attorney and the conservator will be two different people, which may cause some confusion, or worse, a difference of opinion.

Revocable living trust

A revocable living trust can authorize your successor trustee to make financial decisions on your behalf if you become incapacitated. A trust does not address health care matters, but it can be used to protect assets held by your trust and provide the court with a preference for a conservator or guardian in the event of incapacity.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at

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