Free Britney: A comparison between US and UK law

The power of social media has led to a worldwide #FreeBrtiney campaign within the last several months, shedding light on the conservatorship of Britney Spears and begging the question: what is a conservatorship?

What is a conservatorship?

A conservatorship is a legal concept in the US, whereby a judge appoints a conservator to make decisions on behalf of an individual (conservatee). This may include financial, healthcare or day-to-day decisions.

In order to be granted a conservatorship over an individual it must be proven that the individual is unable to make decisions themselves due to physical or mental difficulties, in essence the individual ‘lacks mental capacity’ to make these decisions.

In California the legal test for a conservatorship is very high. The individual must be unable to make basic decisions regarding food, clothing, shelter or medical decisions. For the financial aspect, the requirement is a person being unable to manage financial affairs or resist undue influence (having your decisions persuaded by others). The bar is high as they are considered one of the harshest remedies in the US legal system.

In the case of Britney, this leaves us asking how a conservatorship has been granted when she has been able to release albums, judge and mentor on X Factor and perform in her own Vegas show which reportedly earned in excess of $100 million. These accomplishments make the conservatorship appear odd and unnecessary. Yet, the facts surrounding this case are still unclear and there is a lot of information that has not been made public. What we do know is that medical professionals and the Court found that Britney could not make decisions for herself in a reasonable and safe way and therefore her father has been granted two conservatorships, one for Britney’s estate, which would include her property and financial affairs and another for Britney herself.

Many now feel that Britney’s father has been put in a position where he is able to use the conservatorship to exploit her. Britney’s name alone is big business. She reportedly earned $672million during her career up until 2016, according to online sources; however, her annual conservatorship filings reported her net worth in 2018 to be $56million.Her father is able to make business decisions and decide who is able to visit her. Many feel that this is to stringent and unnecessary; however, we will have to wait until September for further information in the case. For now, nothing seems certain.

What exists in the UK and how does this compare to the US?

Alternatively, under English and Welsh law such use of court-appointed power is not possible, due to strict legal limitations.

The UK equivalent of a conservatorship is a deputyship. This is applied for at the Court of Protection on behalf of somebody who ‘lacks mental capacity’ meaning they are unable to make decisions for themselves, for example managing their property and finances or have a brain injury, illness or disability. It can be temporary or permanent and the extent and effects will vary from person to person.

There can be two types of deputy in the UK, this can be for personal welfare (making decisions about an individual’s medical treatment and care) and property and financial affairs. Comparing a deputyship with the US counterpart, the Court of Protection would more than likely grant the powers to a suitable professional with experience to handle the individual’s affairs. In Britney’s case this power was given willingly to her father.

The rules relating to Deputies in England and Wales are laid out in the Mental Capacity Act 2005 and provide principles that Deputies must adhere to in order to make sure that the individuals basic rights and freedoms are not restricted, and a high standard of care must always be applied when making decisions. This allows for proper safeguarding to be put in place, so that situations such as Britney’s may not arise.

Like the US conservator, a Deputy must provide an annual report, in England and Wales this is to the Office of the Public Guardian explaining the decisions they have made. However, unlike a conservatorship, any expenses exceeding £500 must be explained. In comparison Britney’s conservators have been able to take a percentage of her income, which would not be considered as being in the best interests of the individual under UK jurisdiction.

On the other hand, an individual in England and Wales is able to register their own Lasting Powers of Attorney (LPA) and appoint their own attorney(s) to make decisions on their behalf allowing them to get their affairs in order in advance of the possibility that they may ‘lack mental capacity’ in the future. In order to do this an individual can fill in an LPA form for health and welfare and also an LPA form for property and finances. Both documents are completely separate and must be filed at the Office of the Public Guardian.

Individuals are able to appoint attorney(s) to make decisions relating to health and welfare or property and finances, the decisions their attorney(s) make include where they live, medical treatment they receive, paying their bills and investing their money.

In relation to the health and welfare LPA, the attorney(s) cannot act on the individual’s behalf until it has been proven that the individual ‘lacks mental capacity.’ However, this differs for property and finances LPA, as an individual can choose for their attorney(s) to act on their behalf as soon as the application is registered or once the individual lacks capacity. If the individual chooses to grant their attorney(s) power whilst they still have capacity, the individual will always have the final say as to what the attorney(s) does. Nevertheless, it is always important that an individual chooses attorney(s) who know them well and will be able to make the best decisions on their behalf.