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Opinion: The #FreeBritney case has highlighted the problems with adult guardianship

Professor of Law Eilionóir Flynn says many disabled people also living under adult guardianship orders.

Eilionóir Flynn

FOR 13 YEARS, Britney Spears has been subject to a conservatorship order in California, which means that she does not have the power to make legally binding decisions about her own life.

Last week, for the first time, as she testified before the court, the world heard her describe the legal restrictions she endures as abusive and traumatising. Spears is now asking the court to free her from conservatorship, and her fans and many public figures, support this call.

We should work to #FreeBritney – but equally – we need to recognise that laws like this affect disabled people all over the world, including in Ireland, and that radical legal and social change is needed if we are serious about protecting people’s fundamental human rights.

Conservatorship is a form of adult guardianship – as is the ward of court system in Ireland. People are usually placed under adult guardianship based on a court finding that they are incapable of making decisions for themselves (including decisions about their finances and their health).

Then, a guardian is given the power to make legally binding decisions about that person’s life. Some argue that guardianship is necessary to protect people in vulnerable situations from exploitation, but disabled people have always been clear that guardianship systems are inherently exploitative and oppressive.

We now have support for this idea in human rights law, as the UN Convention on the Rights of Persons with Disabilities recognises that disabled people should have the same rights as non-disabled people to make decisions for themselves and control their own lives. 

Lack of autonomy

From her testimony, Spears is asking for very basic things which she currently lacks the legal power to decide for herself – to control her own fertility, to choose her own therapist and how often she sees them, to make changes to her medication, to decide her own work schedule.

These relate to basic human rights which are often denied to disabled people, including people with psychiatric diagnoses, like Spears.

If you think this shouldn’t happen to Spears (and let’s be clear, it shouldn’t), it’s important to question why you think it’s ok for this to happen to anyone else.

All around the world, disabled people and their allies have called for adult guardianship laws to be abolished, and replaced with supported decision-making systems. This would mean that where someone wants help with making decisions in their life, they can access that from people they trust and have chosen for that purpose, without losing the legal power to control their own future.

For Britney Spears, however, supported decision-making may not be considered by the California court as an alternative to adult guardianship, as efforts to introduce supported decision-making laws in California have not yet succeeded

A judge could decide to end Spears’ conservatorship, but usually, this is only done on the recommendation of an independent evaluator appointed by the court to review all the evidence.

Who do you trust?

Spears’ testimony shows that she does not want to undergo another evaluation, and it is clear that any reviews to date have not resulted in her gaining more control over her life. Another problem for Spears is that she does not appear to have many people in her life that she can trust, who the court might have confidence in to support her with decision-making.

Most of the people in her life are paid to be there, a problem Spears shares with many disabled people, especially those who have been long-term institutionalised.

Even if Spears was originally placed under conservatorship to protect her at a vulnerable time in her life, it has resulted in others being given total control over her personal and financial decisions, leaving her feeling even more traumatised.

This is a structural problem with adult guardianship as a system since its entire purpose is to give others control over the lives of people deemed incapable of making their own decisions.

The UN has called on States to repeal their adult guardianship laws, and some very progressive reforms have already been achieved, especially in Latin America, with Costa Rica, Peru and Colombia all passing new laws to abolish adult guardianship for disabled people and introduce legal recognition of supported decision-making.

In Ireland, the Assisted Decision-Making (Capacity) Act 2015 recognises some forms of supported decision-making, but the Act is not yet in force. Even when this Act is finally commenced next year, it will not completely abolish adult guardianship, as decision-making representatives appointed by courts will still be empowered to make decisions for people deemed incapable of managing their own lives. 

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The problem of adult guardianship did not begin with Spears, and it will not end even if her conservatorship is lifted. But at least now, more people are aware of the human rights violations that flow from these systems; and can join disabled people in their fight to change these laws for good.

Eilionóir Flynn is an Established Professor of Law at the National University of Ireland Galway, and Director of the Centre for Disability Law and Policy. 

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Eilionóir Flynn

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