ON WEDNESDAY THIS week, the Los Angeles Superior Court ruled that Britney Spears may appoint a lawyer of her own choosing to represent her in relation to a ‘conservatorship’ arrangement that has been in place since 2008.
This is the latest development in complex legal proceedings that have been the subject of the recent New York Times documentary ‘Framing Britney’ and the #FreeBritney campaign mobilised by her fans.
Under conservatorship, a court appoints a person or persons to make decisions on behalf of another adult who is considered to lack capacity.
In Spears’ case, her father, from whom she claims to be effectively estranged, has been authorised to play a central decision-making role in the management of her financial and personal affairs.
Last month, Spears told the court how, while her lucrative performing career has continued during the last 13 years, she has had very limited access to her money.
She also said that her personal contacts have been restricted, that she has been medicated against her wishes and that she has been prevented from re-marrying and having more children.
Before the latest ruling, Spears had the same court-appointed lawyer since 2008. She told the court in June that she was unaware that she could apply to terminate the conservatorship and it appears that with her new lawyer, she now intends to progress a formal petition to do so.
In Ireland, we continue to operate a wardship system which shares some of the features of conservatorship.
Under the Lunacy Regulation (Ireland) Act of 1871, an adult can be declared by the court to be “of unsound mind and incapable of managing his person or property”.
The ward’s money is then lodged in court, rather than transferred to the control of third parties.
Family members may be appointed to act as “committees of the estate and/or the person” to take certain routine decisions, but they do so under the supervision of the President of the High Court.
Long overdue replacement
The wards of court system will be abolished on full commencement of the Assisted Decision-Making (Capacity) Act 2015, which is now expected to take place in 2022.
There is a broad consensus that the replacement of wardship is long overdue.
In 2019, the Supreme Court acknowledged that wardship can deprive a person of the power to make many of the choices which are fundamental and integral to day-to-day life.
Under the 2015 Act, all adult wards of court will have their cases reviewed and will either have their property and their independence fully restored, or will transition to appropriate support under a new tiered framework.
At the upper tier of the new framework, the 2015 Act continues to provide for a form of court-authorised substitute decision-making.
A ‘decision-making representative’ may be appointed to act on behalf of a person who is declared by the Circuit Court to lack capacity in respect of specific decisions.
The Act sets out guiding principles to govern such arrangements. These principles include minimal intervention, respect for privacy, bodily integrity, autonomy, and the right to control over one’s own affairs.
The Act prioritises a person’s ‘will and preferences’ rather than ‘best interests’. This is considered to be central to the United Nations Convention of the Rights of Persons with Disabilities, ratified by Ireland in 2018.
Protected by court
There has been occasional commentary that, for all its limitations, the wardship system has at least the advantage of ensuring that a vulnerable person and their money are protected by the court from abuse and exploitation.
There is some apprehension that new decision-making representatives might have improper motives and will be subject to inadequate supervision.
However, significant protections are provided under the new Act.
The person who is the subject of the application will have full access to the court and to legal representation, and any declaration of incapacity by the court is subject to review and re-entry.
The court must also consider the person’s wishes about who should be their decision-making representative.
The decision-making representative may take only those decisions specified in a time-limited court order and will report to the new Decision Support Service (DSS).
The DSS may investigate complaints and apply to the court to remove a decision-making representative.
In the worst cases, a decision-making representative may be prosecuted for offences of fraud, coercion, abuse and neglect. A decision-making representative may never restrict a person’s contact with other people.
The potential of the Assisted Decision-Making (Capacity) Act 2015 to deliver a rights-based system which incorporates necessary safeguards will only be tested when it is fully operational.
The Department of Children, Equality, Disability, Integration and Youth has committed to the full commencement of the Act in mid-2022.
Whatever may transpire in Britney Spears’ case, an earlier exchange between the presiding judge and Spears’ lawyer suggests an approach which has been far from person-centred, in at least one respect.
It appears that, contrary to her understanding, Spears has in fact always been free to marry.
According to an excerpt from a 2014 court transcript published by the New York Times, Spears’ lawyer raised his client’s concerns that she could not get married.
The judge reportedly commented that she did not recall making any such order but added: “You might not want to tell her that”. The lawyer replied: “Somehow that did not come up in conversation”.
That is no way to talk about the personal decision-making of an adult woman.
Áine Flynn is the Director of the Decision Support Service, an essential new nationwide service for all adults who have difficulties with decision-making capacity, which is due to open in mid-2022.
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