Legal Review: The Idea of Conservatorship

Last year, Britney Spears was released from her conservatorship, which had lasted since 2008. The pop star controlled her finances, health, and well-being over the years. The indefinite conservatorship forced her to pay the legal team involved. Spears and her fans would later celebrate after it was terminated in November 2021.

A conservatorship (or guardianship) is the legal role given to a person to manage the activities or resources of another person. It is the court’s appointment of a guardian or conservator to manage a person’s affairs who cannot handle them. This may be due to their mental capacity, age, or physical disability.

The Problem of Conservatorship

Although the idea of a conservatorship aims at supporting incapacitated individuals, the praxis isn’t always healthy. There have been many cases where a conservatee experienced toxic relationships with their conservators. We can find an example in the case of a certain Nick Clouse.

Nick Clouse experienced severe memory loss at 18 after an accident. Subsequently, his mother and stepfather would petition to be his legal guardian. This would make them responsible for all his financial and health decisions.

Years later, Clouse recovered and desired to make his own decisions. However, his parents refused to grant him his rights back. Subsequently, Clouse had his lawyer file a petition to end the guardianship. Eight months after the legal battle, he finally gained his freedom.

Leaving a conservatorship is not easy. People involved in it often find themselves in a Catch-22 situation. To regain their freedom, they would need a lawyer.

However, they would require money for that — something they don’t control. Luckily for Clouse, he could find free legal representation through Indiana Disability Rights.

Perhaps the biggest issue with conservatorship is that individuals are usually unaware of the agreement. Most times, they do not have a say. For example, some states allow the right to counsel for people entering guardianship. Others do not. In the latter situations, only the petitioners are involved. The incapacitated aren’t allowed to contest the hearing.

In other cases, some laws do not require medical evidence to be submitted. This is dangerous because guardianships can be granted without the proper knowledge of the prospective conservatees.

A Shift Towards Safer Options

“Cases like Britney Spears and the Nick Clouse have shed light on the problems of conservatorships, highlighting the need for alternative options and greater emphasis on the freedom and decision-making rights of individuals with disabilities, said trust and estates attorney Kerri M. Castellini.

In recent years, many states in the US passed laws that favored less restrictive guardianship alternatives. According to the Adult Guardianship Guide, “Most states have enacted laws that require a court to consider… evidence to explore less restrictive means as practical alternatives to guardianship…”

One of these alternative options is supported decision-making. The conservatee would have a support group of friends, family, or paid support members to consult before making important decisions. With this, the individual still gets to make the final decision after being advised.

The Effect of the New Laws: the Future of Conservatorship

It is easy to think the new enforcement has solved conservatorship problems. There is no denying there is good progress. After all, some states have passed laws allowing for supported decision-making.

However, reforms like these take time to be fully adopted. More states need to be educated on the importance of freedom for people with disabilities. Attorneys need to be aware and willing to consider the proposed alternatives.