#FreeBritney: if Britney Spears' Conservatorship Happened in Texas
With the release of the documentary Framing Britney Spears, there has been renewed discussion of Britney’s legal situation. Since 2008, she’s been under a legal status known as a conservatorship. Many of her fans have been actively following this and a #FreeBritney movement urges the end of her conservatorship.
Britney Spears lives in California, and thus is under California law, but her situation provides an interesting example for us to consider Texas law. What would Britney Spears’ conservatorship look like if she lived in Texas?
(Note: I’ll refer to some cases I’ve worked on below, but to protect privacy, I won’t use names and will use they/them pronouns.)
What’s the Texas law version of this called?
The legal process known as conservatorship in California is called guardianship here. Texas law does have “conservatorship” but the term refers to custody of children in family law matters, not the protection of incapacitated people.
What would a Court need to see to appoint a guardian for Britney?
The Court would need to find by clear and convincing evidence (including an examining doctor’s opinion, as expressed within a Physician’s Certificate of Medical Examination) that she was incapacitated. In other words, that she had a physical or mental condition that rendered her unable to care for herself or her finances.
But a finding of incapacity alone isn’t enough to prove someone needs a guardian. Guardianship is the most restrictive legal status short of incarceration. Before a court could appoint a guardian for her, it must also find that there are no less restrictive alternatives. If Britney were placed under guardianship, she may be stripped of her right to make her own decisions and manage her own estate.
This also serves to highlight the value of estate planning in reducing the likelihood guardianship might be needed. For example, even if Britney were incapacitated today, if she had previously created an estate plan in which she signed powers of attorney and created a trust, the agents she designated in her estate plan would be able to act for her now and she might not need guardianship.
What kinds of guardians might a Court appoint for Britney?
The medical evidence might show that Britney is totally incapacitated and unable to make personal or financial decisions. Or it might show that she can make personal decisions but not manage her finances. In Britney’s case, the California court found she needed help with all decisions.
In Texas, this would mean she would have a guardian of her person and of her estate. The guardian of the person would make health and residential decisions and even have authority to consent to marriage on her behalf (assuming the Court found she lacked capacity to make that decision for herself). The guardian of the estate would manage her finances and legal decisions. Sometimes one person handles both jobs, serving as guardian of the person and estate. Sometimes, though, it makes sense to split those jobs up.
In this case, given the size and complexity of Britney’s estate, it’s likely that a professional guardian of the estate would be appointed, while a family member might be entrusted with personal decisions. The California court initially appointed Britney’s father, Jamie Spears, and attorney Andrew Wallet as co-conservators. In Texas, guardians of the estate who are not trust companies or similar professionals are required to post a surety bond commensurate with the estate value to protect the estate—a prohibitively difficult requirement in a case like this.
What other rights of Britney’s might be restricted in a guardianship?
If the court found her completely incapacitated, her rights to vote and hold a driver’s license might be terminated as well. Effectively, even though she is a 38-year-old woman, she might have the legal rights of a child.
What types of adults generally need guardianship?
Generally speaking, the 3 broad categories of incapacitated person we see in adult guardianship cases are:
1. People who, by reason of intellectual disability or other special needs, have never had capacity and are never expected to gain it (for example, a person with severe autism or chromosomal disorder);
2. People who suffer a traumatic brain injury (for example, a person injured in a car accident or fall); and
3. People with aging brain issues (for example, an older adult with dementia).
While the specifics vary a bit, and sometimes improvement may be possible, particularly for the second group, all of these are conditions which are expected to last indefinitely.
Which category might Britney fit into?
Well, that’s an interesting question. Because publicly available information does not suggest that she is in any of these groups.
Prior to 2007, she appeared to be living as a neurotypical adult with capacity. She had, after all, made her own medical decisions, married, held a driver’s license, managed her own finances, and cared for her children.
So what changed? Why did her father seek conservatorship, and why did the court grant it? It’s hard to know, as none of us has seen the medical evidence that the California court relied on to grant the conservatorship. But publicly available information suggests that she may have suffered from postpartum depression and mental illness, leading her to act in ways that concerned her loved ones that she may be unable to care for herself.
Is guardianship typically used to address mental illness?
No. Mental illness is typically addressed through mental illness court, in which a mental illness warrant may provide for involuntary commitment of a person who poses a danger to herself or others. Mental Illness Court is a subset of Probate Court but MI cases are not guardianship matters; they are distinct legal issues with distinct legal remedies. Occasionally a person may be a “dual diagnosis” suffering both from mental illness and an incapacitating condition such as dementia, but typically it’s an either/or. Involuntary commitment is about temporarily placing an at-risk person in protective custody until they are no longer a danger to themselves or others. For a person whose mental illness is generally controlled by medication, it may mean placing them in protective custody until they are stabilized with medication and able to return to independent living.
If some manner of mental illness is the precipitating reason for Britney’s conservatorship, that would be a significant difference between Texas and California law’s approach.
Is it typical for a high-functioning person to be under a total guardianship of person and estate?
No. By definition, a person under total guardianship lacks capacity. A person with capacity would be able to choose to retain professional assistance as appropriate to meet their needs—in Britney’s case, this would include publicists, attorneys, accountants, managers, etc. A high-functioning person with partial incapacity might still need a limited guardianship to address the person’s deficiencies. Again, without medical evidence, all we can do is speculate, but Britney would appear to be very high-functioning, with no obvious incapacity. It’s not unusual for a person with dementia to present in limited interaction as higher functioning than they actually are, but Britney is not suggested to suffer from dementia or, in fact, from any condition associated with permanent incapacity.
Having handled guardianship matters for almost 8 years, I can’t think of any similar case I’ve seen in which a person was so high-functioning yet under a full guardianship like this.
Could Britney choose to be voluntarily under guardianship?
Well, strictly speaking, not really, because guardianship is a tool to protect incapacitated people, and by definition incapacitated people lack the ability to meaningfully consent, which is why they need a guardian in the first place. This is why it’s confusing to see comments describing Britney’s situation as a “voluntary conservatorship.”
That said, even though a person is incapacitated, the Court and their guardian are supposed to honor the person’s reasonable preferences to the greatest extent possible. In a recent case of mine, that meant that while the incapacitated person did not get to choose whether they needed a guardian or not, their preference as to who should serve as guardian if one was needed was accorded significant weight.
So if Britney is truly incapacitated, she could still have input into who should serve as her guardian. That wouldn’t be, to my mind, a “voluntary conservatorship” though.
I’m struck by the fact that Britney’s own attorneys, who were appointed for her by the Court, have not asked that the conservatorship be terminated, but only that someone other than her father be appointed as the conservator. After all, if she has capacity she could choose to hire professionals to manage her career and estate. If she has any concerns about the risk of poor decision-making during a mental illness episode she could put plans in place to address that risk, as many people do. Perhaps the conservatorship serves as a helpful template for what she might choose to set up on her own if her rights were restored. She may benefit from a “protective bubble” but if she has capacity, she can choose to create one for herself, as other people do.
Is there a risk that if the conservatorship were ended she might make poor decisions? Of course, but people with capacity are allowed to make poor decisions. We don’t put people under guardianship merely because they make bad choices, but rather because they lack capacity to make choices at all.
Can a guardianship be terminated or modified if the person under guardianship improves?
Yes. Total and partial restoration of rights can occur when a person under guardianship improves. If Britney were in Texas, she could seek restoration of her rights if she believed she no longer required guardianship, or if she believed she no longer needed a total guardianship.
I once served as court-appointed attorney for a person who had been under guardianship for many years. Their story was amazing—they had been a healthy adult with capacity until they were accidentally given the wrong, very strong, medication at the hospital, causing them to be placed into a medically-induced coma and rendering them fully incapacitated. Their parent was appointed guardian. Over many years, the person gradually regained their capacity and abilities and at their restoration hearing, the judge declared that they were no longer incapacitated, that they no longer needed a guardian, and that their civil rights were fully restored. My client walked into court totally incapacitated and walked out with the same rights as I had.
So, what to make of this?
The more I read about Britney’s situation, the more confused I get. It doesn’t appear to fit into my understanding of guardianship at all. She would have to have a medical condition that renders her totally incapacitated despite outward appearances to the contrary—and, as none of us has seen the medical evidence, it’s possible she does. Perhaps her case just happens to be a very high-profile exception to the general rule of which categories of people need guardians. From a distance though, and without knowing her medical history, she looks like a person with capacity who may need some help managing mental illness and a large complicated estate—problems for which guardianship is not the appropriate tool. Even to the extent she may have some medical issues, it seems like there are less restrictive alternatives to guardianship.
Is hers a guardianship success story, showing how an incapacitated person can thrive under a protective guardian’s care? Or is it a story of a person being unfairly restricted, held captive in plain sight, due to well-meant overreach? The more I read, the more I’m inclined to believe the latter.