By David L. Ludescher
The Britney Spears guardianship and conservatorship case captured the imagination and inspired disbelief among many who were watching. The general public found it hard to fathom how someone with the capabilities of Britney Spears could be under guardianship and conservatorship for 13 years, have her freedom of movement restricted, be unable to have her own attorney, have a court-appointed attorney charge $3 million while doing little or nothing to seek her restoration to capacity, even as her father got paid $13 million for “helping” Britney for the last 13 years. Then, almost as suddenly as the case started, it ended.
Now that it is completed, it may be easy for us in the legal profession to dismiss the Spears case as an anomaly. It involves a celebrity; it’s out of California, which often appears to produce unusual legal decisions; and it appears that the result was dictated more by widespread media attention than by an adherence to the principles that had guided the court and actors for the prior 13 years. Nevertheless, it left many public observers curious about how Spears could remain under court supervision for so long when by all outward appearances she had the ability to manage most, if not all, of her life for at least a decade (and maybe the entire 13 years). The media attention brought to light how easily the system can go astray. Could this happen in Minnesota? What safeguards exist? Are they followed?
My intent in this brief article is not to provide a detailed analysis of the Britney Spears case or of guardianship and conservatorship law in Minnesota. Rather, I wish to show how the protections afforded by “the system” can fail people in Minnesota as well.
What is the difference between a guardianship and conservatorship in Minnesota?
Broadly speaking, a guardianship is a legal proceeding in which an incapacitated person has court-supervised assistance with respect to his or her personal needs, including food, clothing, shelter, healthcare, and social/recreational requirements.1 A conservatorship is a court-supervised arrangement governing how the estate (money) of the person is to be managed, spent, or distributed to or for the person subject to conservatorship.2 The distinction between the two actions is important. People are sometimes able to manage their personal affairs (shelter, food, medical care, etc.) quite well yet still at abiding risk of falling prey to scammers, family members, or dishonest financial advisers. Sometimes the situation is reversed. The proper level of court control can only be judged on an individual basis.
While the two actions should involve reaching separate findings and conclusions, in my experience guardianships and conservatorships generally go hand in hand in both form and substance. Britney Spears was under both a guardianship and a conservatorship. Thus, all aspects of her life were controlled by her guardian and conservator, even though by all accounts she did not lack the ability to provide for her financial needs.
Is it necessary to have a guardianship or conservatorship if a person cannot fully take care of himself/herself?
No. Many people who need assistance already have in place powers of attorney or health care directives (or both) that can be used to manage a person’s affairs. In fact, the statute provides that the court should examine all other alternatives and should adopt only those powers that pertain to the demonstrated needs of the person.3 These documents can be used whether the person is incapacitated or not. Thus, Spears’s family could have worked with her on both her financial arrangements and her personal needs to ensure her health and welfare without involving the court. The main difference is that powers of attorney and health care directives can be revoked by the person alleged to be incapacitated.
Does a person under guardianship or conservatorship have any rights that he/she can enforce?
The Bill of Rights for Persons Subject to Guardianship or Conservatorship that was passed in 2009 (Minn. Stat. §524.5-120) specifically provides that a person retains all rights not restricted by a court order and that these rights must be enforced by a court. The rights include:
- to be treated with dignity and respect;
- to receive due consideration of stated personal desires and preferences;
- to participate in decision-making;
- to exercise control over all aspects of their life unless specifically delegated by a court order;
- to be consulted regarding the disposition of their clothing, furniture, vehicles, or other personal property;
- to privacy;
- to interact with whomever they want unless it can be established that they pose a significant harm to the person;
- to marry;
- to procreate;
- to petition for decision for modification of the conditions of the guardianship or conservatorship;
- to vote;
- to execute a healthcare directive and appointment of a healthcare agent; and
- most importantly, a protected person has a right to be represented by an attorney in any proceeding or for the purposes of petitioning the court.
But there is no easy way for a protected person to enforce these rights, because the statute does not provide for a remedy.
One of the arguments in Spears’s case involved whether she was entitled to have her own attorney rather than one appointed by the court. The court-appointed attorney charged her estate $3 million for his representation of her but apparently did very little to advance what she wanted done. The potential for abuse is magnified the more money a protected person has. The incentive for a court-appointed attorney is to keep a case going so they can “milk a cow they do not own.” If a private attorney were to represent a client without their approval, charge an exorbitant fee, and advance legal arguments against the client’s wishes, we would be disbarred, and rightly so. But court-appointed attorneys do not receive the same scrutiny.
While it is almost unfathomable that Britney Spears had to ask permission of the court to hire her own lawyer, in at least one county in Minnesota, an alleged incapacitated person not only has to ask permission to hire his lawyer—he or she must ask for and receive court permission to fire their attorney.
For indigent clients, the situation can be even worse. In my home county, the county attorney’s office often brings guardianship or conservatorship petitions on behalf of the social service agency’s claim of a need. The court administrator’s office then appoints an attorney from a list of attorneys who have signed contracts with the county for representation of both indigent and private-pay clients. The county attorney’s office is in charge of letting the contracts. Thus, a person who is alleged to lack capacity and has no money must appear in court with an attorney who has a contract for payment with the very office that is seeking to limit the person’s rights.
What needs to be proven to establish a guardianship or conservatorship?
Voluntary guardianships or conservatorships can be ordered by the court. This is often the case when a family member wishes to have someone else in the family care for him or her and make adult decisions. If the person is not agreeing to a guardian or conservator, the petitioning party must prove, by clear and convincing evidence, that the person proposed to be subject to the guardianship or conservatorship is an incapacitated person.4 The statute defines an incapacitated person as an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make personal decisions, and who is unable to meet personal needs for medical care, nutrition, clothing, shelter, or safety even with appropriate technological and supported decision-making assistance.5
The evidence needed to prove a case against a person like Britney Spears can be subject to a lot of different interpretations given the vagueness of “clear and convincing,” “incapacitated person,” “demonstrated needs,” and “sufficient understanding.” Consequently, this area is ripe for misinterpretation and abuse. For example, should a hoarder of personal property be allowed to make the personal decision to hoard? What if that person is able to meet all their personal needs, but a family member or a government employee decides that that person has a demonstrated need for a better shelter and safety because of the potential danger associated with hoarding?
Who can be the guardian or conservator?
Minn. Stat. §524.5-309 and §524.5-413 specify the priorities for who may be a guardian or conservator. Both of these statutes list the considerations a court should weigh in appointing someone to take on these roles. In Spears’s situation, her dad had priority under law, and a father would also have priority in Minnesota. But the court, charged with acting in the best interests of the person, may also decline to appoint a person who has priority and appoint a person who has lower priority or no priority.
But the statute does not define “best interests of the person subject to guardianship and/or conservatorship.” This standard can create problems for the protected person. For example, many elderly patients are quite opposed to being placed in a nursing home. Many would prefer to live at home, even though it presents greater medical dangers. While the quality of care may be better, the protected person may view the quality of life as substantially poorer. One client, now deceased, described her life in a nursing home as “glorified jail.” She was well cared for. But she did not have what she valued most—freedom.
What kinds of powers can a guardian or conservator be given?
The powers of a guardian and conservator are listed in Minn. Stat. §524.5-313 and §524.5-417. If the court grants powers to the guardian and/or conservator, the powers can cover virtually every aspect of a person’s life and money. A guardian can have the power to establish a place of abode; to give consent to receive medical and professional care; to petition the court for psychosurgery, electroshock, sterilization, or experimental treatment; and to exercise many other powers.
A conservator may be given the power to approve or withhold approval of any contract, except for necessities; to revoke, suspend, or terminate durable powers of attorney; to petition to set aside previous transactions with approval of the court; to fix a reasonable amount of support; and a host of other powers. In the Spears case, her father was given extensive powers. Some conservators view these powers as a grant to seize bank accounts, limit access to monies, seize cars (even though a person has a valid driver’s license), take possession of the protected person’s house, and change locks—all without a court order and against the wishes of the protected person.
Are the powers ever limited?
These same statutes provide that the court should only approve the powers necessary to provide for the demonstrated needs of the person subject to a guardianship and/or conservatorship.6 In other words, guardianships and conservatorships need to be limited to only the things the protected person cannot do. In practice, however, people petitioning for guardianship or conservatorship almost always ask for all powers regardless of the level of need. Courts, in turn, seldom examine in detail the demonstrated needs of the protected person. In the 12 years since the bill of rights passed into law, I have yet to see a petition that explained how the guardian or conservator was going to honor it by including the person in matters such as decision-making, protecting their rights to visitors, and honoring the right to an attorney.
Can a Britney Spears type of case happen in Minnesota?
Unfortunately, it already has, and the numbers of cases were in the dozens in just my county. About 15 years ago, before the bill of rights was adopted, a company called Estate Resources, Inc. and its principals were charged with and pled guilty to or were convicted of multiple counts of theft. In spite of such abuses, I still see petitions with summary allegations of incapacity, and summary allegations of the need for full guardianship and conservatorship powers, and court orders that contain few if any actual findings by the court. And I have yet to see a court order advising a conservatee of the rights they retain. I do not see that the actual handling of such cases has changed much over my 32 years of practice.
I hope the Spears case opens everyone’s eyes to how important procedural and substantive due process is to people who enter the system. Ultimately, the responsibility for change lies with the judiciary, which needs to ensure that the petitioning party proves his or her case by clear and convincing evidence, and that the court puts the conservator or guardian to their burden of proof for fulfilling the rights of the protected person. And protected persons need to have easy access to the court when they have complaints. Finally, protected persons need access to lawyers to advocate for them. Without the media attention, Britney Spears would probably still be under conservatorship and guardianship.
DAVID L. LUDESCHER has been a practicing attorney since 1989. He earned a Certificate of Elder Law and Chronic Care from Mitchell Hamline in 2019. In guardianship and conservatorship cases, he primarily represents people in Britney Spears’s position.
Notes
1 Minn. Stat. §524.5-313(c)(2).
2 Minn. Stat. §524.5-402.
3 Minn. Stat. §524.5-313(b) and §524.5-417(b).
4 Minn. Stat. §524.5-310.
5 Minn. Stat. §524.5-102 subd. 6.
6 Minn. Stat. §524.5-313(b) and §524.5-417(b).