How would Britney’s conservatorship have played out under Scots law? - comment
What is a conservatorship?
Available under California law, a conservatorship is intended to protect those who are unable to make their own decisions due to mental incapacity. Britney Spears is subject to a probate conservatorship, which comprises conservatorship of the person, aimed at protecting an individual's personal welfare, and conservatorship of the estate, aimed at protecting their financial affairs.
Her father was initially appointed as conservator in both roles, although he shares responsibility for the estate with a co-conservator. Due to ill health, he stepped down as conservator of the person on a temporary basis in 2019.
In order to obtain probate conservatorship, the proposed conservator must provide clear and convincing evidence to the court that it is necessary to protect the proposed conservatee, including a statement from a doctor who has examined them, and that this is the least restrictive measure available to create that protection.
Is there an equivalent in Scotland?
The closest Scottish equivalent is guardianship, which may relate to welfare powers, property and financial powers, or both. The application must be accompanied by two independent medical reports and a “suitability report”, commenting on the appropriateness of the order sought and suitability of the proposed guardian.
Once the application is lodged with the court, a date for a hearing is fixed. All “interested parties” must be notified of the application and the hearing date at least 21 days prior to the hearing.
The sheriff will consider the application at a private hearing and only grant the guardianship order if satisfied that a number of criteria have been met, including that the adult is incapable in relation to decisions about their property and financial affairs and/or personal welfare, this incapacity is likely to continue and there is no other less restrictive means available to provide the necessary protection.
So, why is Britney Spears' conservatorship controversial, and is the Scottish system vulnerable to the same criticisms?
Within days of entering hospital under an involuntary psychiatric hold in February 2008, the singer become subject to a temporary conservatorship. This was extended until being made permanent eight months later.
It would not be possible to obtain a guardianship order this quickly, for the reasons set out above. This can lead to the unfortunate scenario where an adult is deemed incapable to make their own decisions, but lacks anyone else to do so for them.
Britney Spears has lived under her conservatorship for 13 years. In Scotland, the initial guardianship order will generally last three years. A sheriff can grant an order for any period, although an indefinite period is uncommon in light of developments in human rights law. Any application for renewal must meet the same rigorous requirements.
As conservator, Jamie Spears earns a percentage of his daughter's contracts, while his co-conservator of the estate reportedly receives an annual salary of $426,000.
In Scotland, whether a guardian is entitled to be remunerated is a judgement for the sheriff and depends on factors such as whether this will benefit the adult, and the size and complexity of their estate. If the sheriff decides in favour of remuneration, it is for the Public Guardian to set the rate. It seems unlikely that a guardian would receive anything comparable to the sums outlined above.
Inability to oppose
In 2008 Britney Spears reportedly instructed counsel to oppose the appointment of her father as conservator. When her representative arrived at court, he was told the singer had been assessed as lacking capacity to retain counsel and was discharged by the court in favour of a lawyer it appointed. In emotional testimony made in court earlier this year, the singer spoke publicly for the first time against her conservatorship, claiming that it had been controlling and abusive.
In Scotland, notice must be served on all “interested parties” at least 21 days before the guardianship hearing. This will always include the individual concerned, who is entitled to lodge objections. A guiding principle of the Adults with Incapacity (Scotland) Act 2000 is that the present and past wishes and feelings of the individual must be taken into account.
Power of attorney
Conservatorships and guardianships offer important protection for those who are genuinely incapable of managing their own affairs, and are in most cases used by family members to protect their loved ones. Britney Spears' case demonstrates that mental capacity issues can arise at any age, and it is never too early to consider planning for possible future incapacity.
A power of attorney is a simple document that allows an individual to choose whom they would like to make decisions for them should they find themselves lacking capacity (even on a temporary basis); permits a level of control over which decisions that person should be allowed to make; and, importantly, prevents the need for a lengthy (and often costly) court process.
Justine McCluskey, Shepherd and Wedderburn private wealth and tax team