The Britney Spears conservatorship raises a number of interesting issues (that are somewhat complex and disturbing) of how an adult could be subject to guardianship.
The obvious issue is how the state can take away your rights to make health care and financial decisions, when, from the outside, you appear to be within the range of what we consider “normal.” It can give people pause that if it can happen to Britney, it could happen to anyone.
Adult Guardianship in Maryland
The Britney Spears conservatorship occurred in California, but since I am an elder law attorney based in Maryland, my comments stem from the guardianship process in this state.
To successfully file a petition for guardianship in Maryland, you need to submit two physician certificates to the Circuit Court. The certificates need to show that the person who is “allegedly disabled” no longer has the ability to make responsible decisions, due to a mental disability, disease, habitual drunkenness, or drug addiction.
Guardianship for Adults with Mental Disabilities
In Maryland, the majority of guardianship cases are for mental disability, usually dementia. While forgetfulness is an obvious symptom of dementia, the underlying issue is more devastating—an impaired ability to reason. Therefore, the imposition of a guardianship based on mental disability is usually permanent. However, if the mental disability is linked to a single episode (i.e., a mental breakdown), then the guardianship may either be framed as temporary or permanent until proven otherwise.
However, there is a grey area. In the case that someone has an episode that gives rise to their guardianship, but then they recover, there is no obvious way for them to lift the guardianship. The issue is that most individuals, even if they do recover from the disability, may be in a weakened condition and/or have no practical ability to seek to lift the guardianship.
What can make this more complex is if the guardianship ward believes they do not need a guardian (but they really do need one). This is not an uncommon issue for dementia-driven guardianships. Unfortunately, people with dementia may not recognize for themselves the extent of the disease that impairs their ability to reason.
What makes this even more complex is if the person can still communicate in a socially acceptable way, dress appropriately, and then mask their disability through short but appropriate answers or through humor. To an untrained eye, the short and otherwise socially appropriate behavior may be a sufficient mask to give an appearance that they are “fine enough” to make decisions.
Do They Have the Ability to Reason?
At the root of this guardianship issue is someone’s ability to reason. If this indeed is impaired, then the person’s decision-making process becomes muddled and irrational. This can lead to inactions or foolish decisions, which an otherwise healthy individual would have naturally avoided.
In Maryland, you are free to make decisions regarding your health and finances (i.e., you are free to make foolish decisions). But if you are impaired, then you cannot distinguish between foolish and proper decisions. This issue can be even more complex if loved ones don’t want to see the disabled person’s limitations or shortcomings.
How Much Assistance Do They Need?
What if someone still needs assistance to make decisions, but they don’t meet the criteria for guardianship? In that case, it would be wise for their loved ones to help them with an advance directive, a financial power of attorney, and a trust to guide them.
In Maryland, the imposition of a court-ordered trust can be an equitable remedy for an individual that does not meet the guardianship standard but still has a need for assistance. This could be put in place when an individual has substantial assets and may be susceptible to inappropriate influence from others regarding decisions about those assets.
This arrangement would allow someone to serve as a barrier from those that seek to manipulatively influence the individual. Typically, the trust would not hold all the assets, but certainly most of them. This financial arrangement would also not limit the individual from making independent health-related decisions.
What Will Happen for Britney Spears?
For Britney Spears, it appears that an episode caused the imposition of the state to take her health care and financial decisions away from her. If this situation were to happen for someone in Maryland, then they could use another physician’s examination and testimony to recover from the imposition of the state-ordered guardianship.
It will be interesting to see in the months ahead what the ultimate result will be for Britney Spears.