Last week, Britney Spears testified in court about the conservatorship that has long controlled her life, and noted there were a thousand people stuck in “abusive” arrangements like hers.
In California, lawmakers have responded to the international outcry about the singer’s peculiar legal arrangement with proposed reforms that aim to expand the rights and due process of people in conservatorships.
Disability rights activists say changes to the process are long overdue, but do not go far enough to overhaul a system that has long been shrouded in secrecy. “The United States likes to brag about freedom and stick its nose up at other countries where people’s rights are restricted. But we need to look in the mirror,” said Rebecca Cokley, a disability rights activist. “As horrific as Britney Spears’s case is, people with less privilege have it much worse.”
1.3 million adults under conservatorships
Conservatorships are a form of court-appointed guardianship that give licensed conservators or family members the authority to make major decisions on behalf of people deemed incapacitated and incapable of managing their own affairs. That can include controlling people’s finances and healthcare.
An estimated 1.3 million adults are subject to guardianship in the US, and advocates say the system is opaque with little monitoring or data. The legal arrangement is most common for elderly people, but also often affects people with mental disabilities and homeless people.
Allegations about abuse surrounding the system are extremely common, and date back decades.
The disability rights movement’s fight against conservatorships ramped up in the 1960s as part of a broader push for autonomy, said Jasmine E Harris, a University of Pennsylvania law professor and disability rights expert. Activists challenged the notion that “just because we have a diagnosis, we can’t make decisions or we’re infantilized or deemed dangerous to ourselves or others presumptively”.
Supporters of Britney Spears rally at a hearing on the star’s conservatorship case. Photograph: Irfan Khan/Los Angeles Times/Rex/Shutterstock
Over the years, advocates won protections. In 1999, after two women in Georgia with developmental disabilities sued over their forced placement in mental health hospitals, the supreme court ruled in the landmark Olmstead case that people with disabilities must have access to services in the most integrated settings possible. In 2013, Jenny Hatch, a Virginia woman with Down’s syndrome, successfully challenged her conservatorship that had given her parents strict control over her life, paving the way for other adults with disabilities to pursue independence.
But the conservatorship industry has remained ripe for abuse, advocates say. A 2005 LA Times investigation found widespread examples of seniors falling under the control of for-profit conservators, their fate determined in court hearings that sometimes lasted only minutes. The paper also uncovered cases where professional guardians had isolated their conservatees from their families and drained their finances.
A 2018 National Council on Disability report found that guardianships are frequently imposed when unwarranted, that courts do not enforce state laws requiring consideration of less-restrictive alternatives and that the process for people to restore their rights is rarely used.
Local governments have also continued to use conservatorships as a way to force unhoused people with mental illness off the streets and into institutions. In those cases, “conservatorship is incarceration”, said Jennifer Friedenbach, the director of Coalition on Homelessness in San Francisco. “It can be even more severe than jail. In a conservatorship, oftentimes you’re in a bed and not able to move around freely.”
Attempting to provide mental health services through forced treatment is costly and ineffective, she added.
Fixing a ‘fundamental flaw’
California has previously pursued reforms to the conservatorship system, but many of the proposed changes were underfunded or not implemented. Lawmakers say the Spears case suggests that the system requires significantly more oversight.
“The law is intended to protect people who can’t protect themselves,” state assembly member Evan Low said in an interview, adding that he found Spears’s account of abuse to be “harrowing”.
California lawmakers have responded to the outcry about the singer’s legal arrangement with proposed reforms. Photograph: Axelle/Bauer-Griffin/FilmMagic
Low has introduced legislation that would require non-professional conservators (such as Spears’s father) to register with the state if they are overseeing estates greater than $1m, mandate that professionals involved in conservatorships be transparent about their fees and create policies to fine or revoke the licenses of conservators who are not acting in the best interest of the individual.
A second bill aims to address the gap in due process by guaranteeing conservatees or proposed conservatees the right to counsel and allowing them to choose a lawyer. This bill would also expand the duties of court investigators who are supposed to review the cases and establish regular reviews of conservatorships for adults with developmental disabilities.
“Look at the extent to which her life is not her own. She’s not able to make basic decisions,” said state senator Ben Allen, who introduced the second bill, of Spears. “That is an extraordinary intrusion into somebody’s life and liberty. Before we put people in that kind of situation, we have to make sure there is robust oversight and opportunities to challenge it.”
Supporters of the current system with court-appointed lawyers say the regulations are designed to protect incapacitated people from being exploited by an attorney, but Allen noted that attorneys are already subject to ethics rules.
Bertha Sanchez Hayden, an attorney at Bet Tzedek, a not-for-profit that works with low-income seniors and families in conservatorship cases, said the conservatorships were in some cases the best way to connect people to services and public benefits and that in her experience in LA, there is “always great care to make sure the conservatees’ voices are heard”. She said she supported calls for better checks and balances, but did not want to see the entire process “stigmatized” due to the Spears case.
Britney Spears supporters gather outside a court hearing. Photograph: Chris Pizzello/AP
Some advocates, however, have argued that the proposed legislation does not go far enough in addressing underlying civil rights concerns since the bills rely on a court system that has repeatedly failed to defend people with disabilities.
“The court’s determination of someone’s capacity often lacks any scientific or evidentiary basis,” said Cokley, the disability rights program officer at the Ford Foundation. “It’s about, we don’t trust this person to make his own decisions.”
She and others have argued that reform efforts should focus on investing in alternatives, such as the “supported decision making” model, which allows a person with disabilities to retain the right to make decisions while selecting people in their lives to help them. Some states now formally recognize this as a preferred alternative.
Harris said that a commission independent of the courts should be reviewing conservatorship cases, but added that more broadly these arrangements should be a “last resort”. “The notion that someone’s decision-making capacity requires this sort of nuclear option, where you take all of their rights, not just the ones where they maybe need a little more assistance … is a fundamental flaw,” she said.
With Spears and other conservatees, she added, “You should start from the premise that she is in this system when maybe she should not be.”