The #FreeBritney campaign – Conservatorship and the comparable UK based Deputyship system

In 2008, Britney Spears suffered from a decline in her mental health to the extent that it was necessary for a US Court to appoint her father to act as Conservator.

A Conservator is an individual appointed by a US Court to act as a guardian/protector over another individual’s finances and/or welfare decisions where they have been deemed, by a suitable medical professional, to lack the capacity to make such decisions themselves.

The recent ‘Framing Britney Spears’ documentary highlights the background to Britney’s rise to fame, subsequent decline in mental health and appointment of a Conservator. The documentary also highlights the saddening realities as to the pressures Britney faces whilst living under the public eye and her vulnerabilities to exploitation.

The #FreeBritney Campaign has sought to highlight the inadequacies of the Conservatorship system in the US and claims that Britney is being overly restricted and should have the freedom to make her own decisions.

Over the last few months, the Media has once again focused their attention on Britney following her application for her father to be removed as her Conservator. In summary Britney claimed a breakdown in their relationship to the extent that she was afraid of her father, and that she would not perform again until he was removed.

As a result of the challenge, it was ordered that, for now at least, her father should continue to act, but alongside an independent Trust company chosen by Britney and known as a Bessemer Trust. In practice, this will mean that a professional will have equal responsibility, alongside her father, for making decisions on Britney’s behalf. The documentary explained that the Judge left the decision open as to his removal in the longer term – it is unclear why, but this might be because Britney’s estate is extensive and there needs to be a gradual handover of management.

It has since been reported that Britney is considering appealing the decision for her father to continue. It was also noted towards the end of the documentary that reference was made to the US Judge referring to Britney as a ‘highly functioning Conservatee’. To date Britney doesn’t appear to have openly disputed the appointment of a Conservator, but in future she may choose to argue that she has regained capacity to the extent that she no longer requires the additional support to make decisions.

The UK equivalent Deputyship system

A Conservatorship is equivalent to a UK Deputyship.

The appointment of a Deputy is dealt with by the Court of Protection (COP) and was created under the Mental Capacity Act 2005 (MCA). Its purpose is both to protect and empower individuals who have been deemed to lack capacity to make decisions in relation to their property and affairs and health and welfare due to illness of or an impairment of the mind or brain, and, where necessary, to provide a framework by which decisions can be made on behalf of that person. The MCA applies to individuals over the age of 16.

Those falling within the jurisdiction of the COP are often known as a Protected Party (P). The circumstances which may give rise to P’s ability to decision make being called into question are wide-ranging: P may have suffered a brain injury arising as a result of a road traffic accident or clinical negligence at birth or may suffer from mental illness and learning difficulties. It is true also that those who are elderly and suffering from diseases, such as dementia, may also fall under the Courts jurisdiction.

There are two types of deputies in the UK – a Property and Affairs Deputy and a Health and Welfare Deputy.  The latter is however less common in the UK, as the Court is alive to the fact that delegating decisions in respect of health and welfare may represent a not insignificant step into P’s fundamental rights.

It would appear that the UK system has more safeguards in place to ensure that individuals rights and liberties are protected when compared to a Conservatorship.

A Deputy is appointed only when it is proven, via medical evidence, that an individual lacks capacity to make decisions. A Deputy then has a duty to ensure an individual’s capacity is kept under frequent review – particularly where P has ‘borderline’ or ‘fluctuating’ capacity – which would appear to be the equivalent of a ‘highly functioning Conservatee’.

Under the MCA, the test for capacity must also be applied to each specific decision to be made. Just because P has been deemed to lack capacity to make one decision, it does not necessarily mean they lack capacity to make all decisions in relation to more simple matters.

Careful consideration must be given at each stage as to whether P can be supported to make the decision themselves, even if their final decision might appear unwise to some. Where this cannot happen, and a decision has to be made on an individual’s behalf, it must take place in their best interest and in the least restrictive way, taking into account their own views, wishes and feelings and those of any close family members or friends.

Here at Anthony Gold Solicitors, we have experience in advising on all areas of Court of Protection practice, including applying to the Court to replace a Deputy. We have also supported individuals to challenge the appointment of a Deputy on the basis that they have regained capacity. If you wish to discuss, please contact us on 020 7940 4000 or at ejt@anthonygold.co.uk.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*