The word “conservatorship” wasn’t familiar to many people until this year, when the saga of pop singer Britney Spears’ conservatorship burst into the public consciousness. Images of #FreeBritney protests appeared on the news, and dramatic headlines splashed across the internet and every tabloid magazine.
While perhaps no other conservatee has received so much attention as Britney Spears, the issue of conservatorship abuse is not unique to her situation. As tempting as it may be to focus on the lurid details of Britney’s story, it is more important to extract the lessons that can apply to situations that anyone might find themselves in.
Conservatorship has somewhat different meanings from state to state. In Michigan, a conservatorship is the legal relationship between a “protected individual” (also called a “ward”) who lacks legal capacity to manage their own financial affairs, and a conservator who is appointed by the probate court to manage those affairs for them. A protected individual may have both a conservator and a guardian, who is legally appointed to make decisions about medical care, living arrangements, and other personal matters. In some cases, the same person may act as guardian and conservator.
Despite what Britney Spears’ conservatorship might suggest, most conservators are honest, ethical, dedicated people who genuinely work in the best interests of the protected individuals for whom they are acting. Some, however, are abusive; instead of putting the protected person’s interests first, as they are required to by law, they use their position of relative power to enrich themselves.
Most conservatorships don’t involve a protected person who is as wealthy as Britney Spears or has her future earning capacity. But that doesn’t mean that the protected individual will not be financially abused by the conservator.
A person who is subject to a conservatorship is, by definition, vulnerable. They may be an elderly dementia patient, an adult with a mental illness or disability, an orphaned child who is not old enough to manage their inheritance, or an injured person in a coma, among other scenarios. They lack the legal, and often the mental, capacity to protect themselves.
A conservator who is acting unethically will typically not welcome the scrutiny of others who might reveal and challenge the abuse. Still, there are “red flags” that should concern those who care about a protected individual under a conservatorship. They include:
The presence of one or more of these “red flags” isn’t conclusive proof of conservatorship abuse. But it should prompt loved ones of the protected person to be watchful, as they may be signs that the conservator is embezzling money from the ward.
A conservatorship is intended to protect a vulnerable individual. The price of that protection is that the vulnerable person loses the right to manage their own finances. Understandably, the allegedly incapacitated person may resist having a conservator appointed.
Courts understand the gravity of stripping people of the right to make their own decisions, and do not take this action lightly. There is a high legal standard to appoint a conservatorship; the person petitioning to establish a conservatorship must prove by “clear and convincing” evidence that a conservatorship is necessary.
Sometimes, the need for a conservatorship is clear, but there is a dispute over who the conservator should be. Siblings may oppose each other, or an adult child of a previous marriage may oppose the spouse from the current marriage.
In Michigan, if the vulnerable individual is able to express a preference (or present evidence of a previously expressed preference), the court will take their wishes into account. Would-be conservators must be prepared to demonstrate not only their own fitness to serve, but why they would be a superior choice to other candidates. Unsurprisingly, these disputes can create or deepen rifts in families.
Even if the initial appointment of a conservator is not challenged, probate litigation may arise if the ward or other family members believe the conservator is not fulfilling their responsibilities. If the conservator has failed to file required reports of their activity, or is suspected of conservator abuse, any interested person (including the ward) can petition the court for their removal and appointment of a new conservator. If the original reason for the conservatorship no longer exists, it is possible that the conservatorship could be terminated altogether.
And as we saw in the Britney Spears conservatorship, having quality legal representation really makes a difference in these cases. Non-attorneys are usually unfamiliar with the guardianship process and may be unprepared to advocate for themselves. An experienced probate litigation attorney understands what evidence the court will need to hear, and how to advocate in a way the court will find persuasive.
The extended circus that Britney Spears’ conservatorship became offers one more lesson: you should avoid the need for a conservatorship if you can. You may not have control over whether you will eventually become legally incapacitated, but you can control whether you are prepared for that possibility. A comprehensive estate plan includes a durable financial power of attorney, which allows you to designate someone of your choice to manage your finances should you become unable to. You can change or revoke a power of attorney at any time until you become incapacitated.
Having a power of attorney in place before it is needed eliminates the need for one of your loved ones to seek a conservatorship, as well as the possibility of a dispute between family members over who should serve in that capacity. If you want to avoid a conservatorship, or need help resolving an existing conservatorship dispute, we invite you to contact our law office to schedule a consultation.