Conservatorship: “This Is For Your Own Good, and You’ll Thank Me Later” (but When?)

Posted: February 25, 2021

“Framing Britney Spears,” the New York Times Presents documentary on the 12+ year conservatorship of Britney Spears, has created a buzz and brought the legal arrangement of a conservatorship into public dialogue.  The documentary presents the troubling situation of a 39-year-old international superstar and mother of 2 who has little control over the fortune she has amassed and continues to earn. A California court has awarded that control to others, her “conservators.”

LAS VEGAS, NEVADA – OCTOBER 18: Singer Britney Spears attends the announcement of her new residency

Ms. Spears’ friend and former assistant Felicia Culotta says in the film, “to be honest, I didn’t then, nor do I now, understand what a conservatorship is.”  Until the first time I recovered compensation for a minor child, neither did I.  A conservatorship is meant to protect the assets of a person “under disability,” meaning a person unable to manage their own financial or other affairs, from the actual owner of the assets, for the benefit of that owner.  In other words, protecting the person from herself.  In the case of a minor child, a conservatorship is a no-brainer.  Minors cannot, in general, make transactions (regardless of their financial acumen), so they need conservators to protect their assets until they reach the age of majority.

For adults however, it’s a difficult, often messy question that involves basic human rights.  Many of us have had the unpleasant experience of taking away a grandparent’s car keys (to protect themselves and others on the road). But what does it mean, and what should be required, for a court to take away someone’s credit card, ATM card, checkbook, brokerage account, Venmo app, and every other means to spend their own money, and give control of them to someone else? The Colorado Probate Code requires 2 things:

(I) By clear and convincing evidence, the individual is unable to manage property and business affairs because the individual is unable to effectively receive or evaluate information or both or to make or communicate decisions, even with the use of appropriate and reasonably available technological assistance, or because the individual is missing, detained, or unable to return to the United States; and

(II) By a preponderance of evidence, the individual has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, education, health, and welfare of the individual or of individuals who are entitled to the individual’s support and that protection is necessary or desirable to obtain or provide money. C.R.S. 15-14-401(1)(b)

James Colliton, one of my favorite law school professors, once said, “Everyone should be free to blow their own fortune.”  Britney Spears is worth a fortune, and her work over the last 12 years shows she’s more than capable of adding to it. But right now, in the eyes of a California court, she’s not capable of managing it.

It often happens in our society that a high-profile case involving a celebrity brings attention to an issue that has been problematic for a long time.  It may turn out that a mega popstar causes our legislatures and courts to reexamine what it means, and what it should take, to prevent a person who has money, and earns money, from spending it herself.  In the meantime, we’ll wait to see if Ms. Spears is granted the same fundamental human right as countless other entertainers, athletes, heirs, and lottery winners: the freedom to blow her own fortune.

 

(written by attorney Tim O’Shea)