Social care law in the spotlight: what if Britney Spears’ conservatorship was in the English courts…

I think now is a very interesting time to be an adult social care lawyer (or community care lawyer as it is referred to at my new place of work). We tend to slip by under the radar and it’s certainly not a specialism that attracts attention the way criminal law does, for example. But there’s been a lot more public attention around this area of law recently. The issue of visits in care homes has certainly made its way to the public consciousness, and rightly so. There’s also been a film, based on the American legal system: I Care A Lot, which is very entertaining but probably not a very accurate depiction of the issues.

But one thing I find myself thinking about a lot is the stories being released about Britney Spears’ conservatorship, brought into place when she was very unwell, and which she has been seeking to alter for some time.

I did read recently that her father was intending to step down from the role, and her preferred legal team were taking it on instead. This seems like a positive development, and I hope that it provides significant improvements for Britney and her family.

I am in awe of Britney for being brave enough to speak out, with the world quite literally watching, about what must continue to be a very difficult topic of discussion.

I am not an American legal expert, so I am not sure on the ins and outs of the lengthy process that has been followed so far. If anyone reading this is familiar with the process then do please get in touch, I’d be fascinated to hear your take on it.

But I thought it would be interesting to think about how the whole saga might have played out in the English courts.

The first thing to remember is that conservatorship does not exist in English law. There is a tendency for people to think that guardianship is a similar power. But actually in English law guardianship is governed by the Mental Health Act 1983 and carries very limited powers significantly less than a conservatorship. The powers more closely aligned are either lasting power of attorney, or deputyship so I will talk about both.

In order to have anything close the wide-ranging powers Mr Spears appears to have held over his daughter’s life he would need to hold 2 lasting powers of attorney or 2 deputyships. This is because in English law there is a distinction drawn between property and financial affairs decisions, and health and welfare decisions. It is possible for one person to hold either a power of attorney or deputyship for both types of decision at the same time, or a person may only need one of the powers. But without both powers, decision-making would be limited to one type of decision or the other.

Now if the whole sorry affair had played out in Cambridgeshire rather than California, I don’t think a power of attorney would have been very likely to arise. Whilst it is possible, and indeed likely, that someone with as much property and wealth as Britney Spears would have granted a power of attorney to someone to manage her financial affairs, with the necessary skills and expertise to run things without needing her signature on everything, an ordinary power of attorney would cease to have effect when she became unwell and was no longer able to make decisions for herself.

It seems less likely she would have created a lasting power of attorney over her financial affairs, since the decline in her mental health was unforeseen. These are most often created by people later in life who are beginning to contemplate a time when they will not be able to make big financial decisions for themself. She was young and healthy, but nevertheless she could have created a lasting power of attorney, if she was particularly well-prepared and considering all eventualities.

Less likely still is the possibility that she would have created a health and welfare lasting power of attorney. This are not considered as often as financial powers and many people begin to worry about who will manage their money long before they start to worry about who will make serious health decisions if they are unable to do so themselves.

But it is conceivable that in this alternate universe our English Britney could have granted lasting powers of attorney to her father to cover both financial and welfare decisions. This would then havr given him scope to make a lot of decisions on her behalf, similar to how I understand the conservatorship to work.

However, once Britney was well enough (which does appear likely to have occurred long before now) and she had regained the ability to make these decisions, she could revoke the powers granted to her father. She wouldn’t even have needed a reason to do so and all Mr Spears could have done is argue that she did not actually have the capacity to make the decision to remove the power from him.

But, of course, the bar is not necessarily set that high. The starting point would be to assume that Britney had the capacity to decide to revoke the power. It would be for her father to prove she was unable to understand, retain, use or weigh the salient factors when making that decision. From what I have been able to read about the situation, Britney would likely have that capacity now, even if she has not previously.

In terms of deputyship, there are a number of principles that, when applied correctly, would have barred this course of events from occurring. In particular s16(4) states that a deputyship should be limited in scope and duration ‘as is reasonably required in the circumstances’. So given that Britney’s period of incapacity was, and predictably expected to be, short term. If a deputyship order was granted, it is unlikely that it would have been without any scope and time limitations.

Indeed, the standard deputyship order for finances states the deputy can make decisions than P is unable to to make themselves. Because under the Mental Capacity Act 2005, capacity is decision-specific and just because someone has been assessed as unable to make decisions about management of their finances globally does not mean that they do not have capacity to decide whether to make certain purchases. So in most cases where a deputy has been appointed, the person is still able to handle a certain amount of spending money.

As to a welfare deputyship, these are very rare. The court is very wary of granting the wide-ranging powers that would come with this. And under s16(4) the court will prefer making individual decisions to appointing a deputy. And given that Britney was always expected to make a recovery, it is very unlikely that a welfare deputyship would have been granted.

Even if it was, the same rule would apply about only having the power to make decisions that Britney could not make herself.

But say that either Mr Spears was granted deputyships, or Britney did make lasting powers of attorney naming him, and that all of the decisions he made were decisions she did not have capacity to make herself, there are still principles that should have prevented the misuse that Britney alleges has occurred. Chief amongst these are the best interests principles, particularly the need to take Britney’s views into account. Now the attorney or deputy does not have to give affect to the person’s views, but they must have clear reasons not to based on the harm that would occur if the wishes were followed.

There is also significant oversight of both attorneys and deputies via the Office of the Public Guardian. They aren’t the swiftest to respond, and they are reliant on information being passed to them from other sources such as social care professionals. But they do have the power to apply to the Court of Protection for a power to be amended or revoked. And in the case of the current situation, if this were referred to the Court of Protection, then the fact that Britney is so distressed by the fact her father holds such powers would make it very likely that the court would replace him, assuming that it was satisfied the continuation of the powers is needed at all (which seems pretty unlikely to me). It would not even necessarily need to be evidenced that he has done anything improper. Because Britney’s wishes and feelings would be central to the process.

But even more than that, at any time if a third party, like a health or social care professional can apply to the Court for a one-off decision if they don’t consider that the attorney or deputy is acting in best interests under the Act. This does not need to mean that the deputy/attorney is acting badly or that they are misusing their powers, just that in this one decision the deputy/attorney is giving too much or too little weight to particular best interests factors.

So, in this theoretical universe, our English Britney would likely not be in the situation that the real Britney has found herself in. If she had granted her father a lasting power of attorney over her finances, welfare or both then she could have revoked it at the point she decided she didn’t want him to have that power anymore. She wouldn’t have to give a reason.

If, instead, her father had sought deputyship over her affairs when she became unwell then it is very unlikely he’d have been given the same wide-ranging powers as have been granted under the conservatorship. He’d likely have been given financial deputyship but this would have enabled him to make decisions only when Britney could not make them herself. And if, as it appears, Britney regained capacity, the deputyship would fall away.

It is very unlikely that he would have been granted a welfare deputyship, given the temporary nature of her illness.

I am certainly not saying that the Mental Capacity Act is without flaws or that misuse of the powers and principles contained therein does not occur. But it does have to be quite subtle because there are a lot of safeguards in place (assuming everyone involved interprets the law correctly). And this does seem to spring from the concept of capacity itself. I haven’t been able to find an equivalent concept in the Californian system. And Britney would appear to be suffering as a result.

So this is my little celebration of the Mental Capacity Act and the safeguards it contains. When properly applied, these are valuable protections of the rights of vulnerable people. It may not be perfect, but it’s not a bad starting point.

In case it isn’t obvious from the fact I still haven’t identified the local authority I used to work for, or the organisation I currently work for, the views expressed in this blog are my own opinion and not the views of those organisations.

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