Last week conservatorship in the US once again made headlines news, with details of how Britney Spears’s conservators have managed all of her affairs for the last 13 years.
Jodi Montgomery was appointed as her care manager, to manage personal and welfare decisions, two years ago whilst her father Jamie continues to manage her finances. However there is an overlap between the two roles, as any care and treatment must be paid for and therefore Jamie will need to approve the spending.
In her testimony to the court Britney made several allegations that called the actions of her conservators into question. Britney’s testimony included details of how she has was forced to tour in 2018, when she challenged a dance move she was labelled as being un co-operative, was forced to take medication and attend therapy.
She indicated that her finances were being used personally by the conservators, and how she has been denied the chance to marry and have further children. Both Jodi and Jamie are now responding and are trying to invalidate the allegations made.
It was announced late on Wednesday that the judge has denied Britney’s request to overturn her conservatorship. No details as to why this has been denied have been given, but it has been stated it is not in response to Britney's testimony last week. Britney’s lawyers have asked for the claims of abuse to be investigated.
The Bessemer Trust, the financial firm acting as co-conservator for Britney's financial affairs has now asked to pull out of the arrangement, so no doubt this case will continue to be in the news for some time.
In England and Wales, if a person has lost capacity to manage their own financial affairs and they have no power of attorney in place, the Court of Protection will appoint a deputy to manage that person's affairs. Deputyship is similar to conservatorship, in that the deputy will assume complete responsibility for all financial affairs.
No doubt over the coming weeks and months, it will be shown whether some or all of allegations have truth in them, but it is important to review the controls in place in England and Wales to prevent a similar situation occurring here. There are of course cases in England and Wales where an attorney or deputy has overstepped and/or abused their authority, and these cases are taken very seriously by the Court of Protection.
Deputyship is only granted when it is proven by a qualified medical practitioner that the person (P) no longer has capacity to manage their own affairs. A diagnosis of a memory concern, for example dementia, is not sufficient on its own for deputyship to be awarded. The medical practitioner must complete a detailed report setting out examples of why and how the condition means that P can no longer manage their own affairs.
During the application process, P must be notified and given a copy of the court application process and a copy of the court order once this issued. On each occasion P has the opportunity to object to the appointment of the deputy. Therefore if a deputy was being appointed prematurely P can object to their appointment.
Under the Mental Capacity Act, capacity is assessed on a case-by-case basis. P must be enabled to make their own decisions where they are capable of doing so. A deputy must file an annual report setting out the actions they have taken on P’s behalf. Within this report they must give examples of when and how they have encouraged P to participate in the management of their own affairs.
If P’s condition improves and it can be demonstrated they have capacity to manage some or all of their financial affairs then a further medical assessment should be obtained. If the report confirms that P has regained capacity then the deputyship order will be revoked. P will be encouraged to make a lasting power of attorney so that someone can continue to support them as and when required. Of course, Britney’s medical reports have not been published, but her testimony in court and her ability to continue to tour give rise to questions on her mental capabilities. In England, this would be sufficient to lead to a need for a re-assessment.
A deputy must always act in the best interests of P. They must demonstrate how they have done this by setting out how they have arrived at particular decisions they have made for P and why that decision was in P’s best interests in their annual report.
A deputy must complete annual accounts, providing documentary evidence of every asset and liability P has. The deputy cannot profit from their position; they can only claim reimbursement of reasonable expenses. Those expenses must be incurred in their role as a deputy, for example they cannot charge petrol for visiting P on a social visit. Unless they're a professional the deputy cannot charge for their time and they must ensure their own finances are separate from P’s. If there was proof a deputy had breached these duties, the Court of Protection would remove them as deputy. Given Britney’s allegations, were she under deputyship in England, it is likely the Court of Protection would fully investigate the management of her financial affairs.
A health and welfare deputyship is rare in the UK. The Court of Protection will usually only appoint a health and welfare deputy if there was a disagreement on what is in P’s best interests or P has continuing treatment needs which a deputy must supervise. We don't know Britney’s medical history, but in England it is unlikely a health and welfare deputy would have been appointed for Britney. Ultimately, it would only be if it could be demonstrated that Britney could not make decisions herself in relation to therapy, medical treatment (including decisions about contraception) that these decisions would be made by a third party on her behalf. In the absence of a deputy in the UK, the decisions would be made by a qualified medical practitioner who would have to demonstrate any decision made was in her best interests.
It appears from the testimony that if Britney could have chosen who managed her affairs she would not have chosen Jodi or Jamie. This clearly shows the importance of making powers of attorney, no matter what age. Having power of attorney in place ensures the person or people you choose and trust to manage your affairs can do so, rather than leaving it to chance as to who is the first person to apply to the court for deputyship. If you would like further information on powers of attorney please do not hesitate to contact us.
It is vital that anyone who is appointed as a deputy takes legal advice on their role to ensure they are complying with all of their duties and not acting above and beyond the scope of their authority. Our deputyship support package provides client guides covering the key areas and an appointment with a solicitor to discuss your role.
In a court filing, the company said it had "relied on the representations" that the ongoing conservatorship was voluntary and that all parties, including Spears, had consented to its involvement. The firm said it had heard Britney Spears's desire to terminate the conservatorship and was seeking to respect her wishes.