What the Princess of Pop teaches us about Capacity – Belinda Cheney

7 July 2022 by Guest Contributor

I was gripped by the Britney Spears saga. This phenomenally successful pop star was deemed to lack capacity in relation to most aspects of her life and finances for more than 13 years allowing her father full control over her considerable fortune and her person and critically, she was unable to object until the “Free Britney” movement highlighted the rampant injustice of the situation. Only then was she was permitted to appoint her own lawyer and “freed”. In this we consider briefly the  similarities and differences between the US conservatorship and the UK deputyship. 

Britney’s situation has thrown a glaring light on conservatorships and the potential for abuse. A number of famous people have had conservatorships – often temporary and some of their own volition. Randy Meisner (The Eagles) requested a conservatorship after the sudden death of his wife. Mickey Rooney (actor) had one imposed on account of being the subject of horrible physical and financial abuse from his 8^th wife and her son.  Joni Mitchell (singer songwriter) had a temporary conservatorship after a severe brain aneurysm until she recovered. As stated in the NY Times on 22 June 2021,

Experts say conservatorships should prioritize the wishes of the conservatee and help them regain their independence. The arrangements are supposed to be a last resort for people who cannot take care of their basic needs, such as those with significant disabilities or older people with dementia, yet Ms. Spears has been able to perform and profit for more than a decade.

Basics of US Conservatorships

Conservatorships, known in many states as guardianship, are put in place for people who are significantly disabled by mental illness, elderly individuals who lack mental capacity due to medical conditions such as dementia, or individuals with developmental disabilities who lack the capacity to manage their own affairs. They are often temporary. In typical conservatorship proceedings, an allegedly mentally incapacitated person is evaluated by a qualified physician or psychiatrist who prepares a report documenting the person’s mental capacity that is provided to the court and may be used as evidence. The court must be satisfied that the individual must be unable to make decisions regarding food, clothing, shelter or medical decisions and/or they must be unable to manage financial affairs or resist undue influence. For conservatorships of the person (managing all aspects of daily life and medical care as opposed to finance) the bar is apparently a high one with these being reserved for those most seriously ill. There is also a power to grant limited conservatorships by which the person subject to it can still make some decisions for themselves e.g., where to live. Britney Spears was subject to both types and for a period of 13 years.

Once appointed, a Conservator must provide regular reports and accounts to the respective Court. In the US there is no expectation of an independent professional being appointed as the Conservator, and in fact this would be unusual. In California, the Conservatee’s spouse is the preferred candidate, followed by any adult children, adult siblings, or any other blood relatives. If agreement cannot be reached as to who should be appointed as Conservator/Deputy then a Public Conservator in the US (remember Rosamund Pike in ‘I Care a Lot’….?!). 

In the US, all Conservators are entitled to request the Court for fees for their work. The fees are carefully considered and granted by the Court only if they have been reviewed and approved. Conservators cannot take money without a formal court order. However, the Conservator is entitled to charge a percentage of a person’s assets. Clearly this becomes more significant in larger estates. It has been reported that Jamie Spears spent $1.1 million on legal and Conservator fees in 2018 alone.

The US Court monitors the finances and property of the person in conservatorship. A year after the initial appointment, and every two years thereafter, a detailed accounting report must be filed with the Court. The accounting is reviewed by a probate examiner and an investigator periodically interviews the individual in Conservatorship and determines if the Conservator is acting properly.

Basics of UK Deputyship

The UK equivalent to a conservatorship is a deputyship established under the 2005 Mental Capacity Act.  As in the US, someone applies to the Court of Protection on behalf of another person bringing evidence from a medical professional that the individual lacks mental capacity and is unable to make decisions for themselves. If you look at the government’s website you will see that deputyship is intended for those who have for example brain injury, a serious illness mental or physical, a severe learning disability, or dementia. As in the US, it is not intended to be permanent. All court appointed deputies are accountable to, and monitored by, the Office of the Public Guardian.

The deputy can be appointed for personal welfare (e.g., making decisions about medical treatment and care) or for property and financial affairs. In the UK a deputy can be a family member or friend, or if there are substantial assets, the powers would more likely be granted to suitable professionals such as a solicitor or accountant. 

Once a deputyship application is successful, the Court of Protection will provide an order which sets out the Deputy’s role and responsibilities. The powers of the Deputy are contained in the Deputyship Order and may be restricted. For example, the Deputy may deal with all income and expenses for the protected person but are not allowed to sell a property without a further Order of the Court. If the Deputy is required to make a decision outside the scope of their appointment, an additional application must be made to the Court of Protection to authorise that specific decision.The deputy must both file an annual report with the court explaining the decisions made but unlike a conservatorship in England and Wales the deputy must explain any expenses exceeding £500. The deputy can be reimbursed for reasonable travel expenses incurred in their role such as travel, postage and phone calls. Unreasonable expenses have to be repaid and may result in losing the deputyship. Britney’s father however took a percentage of her earnings and paid himself more than she was allowed to live on. This would not be considered in the bests of the individual in the UK.

In England and Wales, the deputyship can be ended for a variety of reasons including if it is no longer needed and especially if the person subject to it recovers their mental capacity. It is theoretically the same in the US. 

The percentage fee payable to the conservator in the US is not permitted in the UK. The amount a Deputy can charge is very closely controlled. They can either choose to opt for “fixed costs” which is very conservative or alternatively have “costs assessed.” If the costs are assessed then a Deputy can may charge a flat hourly rate which has been fixed since 2010, and their recorded time is closely analysed by the Court. On review this time spent can then be reduced again, leading to an increasingly reduced cost.

In the UK the reporting obligation is more burdensome. A Deputy must write a report every year explaining the decisions they have made as a Deputy. If the Office of the Public Guardian (OPG) needs additional information, the Deputy must write additional reports. The OPG may ask deputies to report for a shorter-than-annual period if their individual circumstances require it. In addition to these reports, if the OPG wish for more information about how a deputyship operates on an everyday basis, they will arrange to visit the protected party and/or the Deputy. As a matter of policy, the OPG are increasingly carrying out visits to new deputies, and interviewing them about their decision making, record keeping and financial decisions. Under the OPG statutory powers, they can request a Deputy to provide a return and account of the property and finances under the control of the Deputy or attorney at any time and as and when he thinks fit.

Similar to a Conservator, a Deputy owes a fiduciary duty to the protected person. However, in the UK, this Deputy’s duty includes ensuring the protected party’s capacity is kept under frequent review; particularly where they have ‘borderline’ or ‘fluctuating’ capacity (which would appear to be the equivalent of a ‘highly functioning Conservatee’- a comment her attorney, Samuel D. Ingham III used to describe Britney). Under the MCA, the test for capacity must also be applied to each specific decision to be made. Just because the protected party lacks capacity to make one decision, it does not necessarily mean they lack capacity to make any decisions. Consideration must be given at each stage as to whether the protected party can be supported to make the decision themselves, even if their final decision might seem ill-considered or inefficient. Where this cannot happen, and a decision has to be made on the protected party’s behalf, it must take place in their best interest and in the least restrictive way, taking into account their own opinions, wishes and feelings and those of any relevant close friends or family members.

In the US as well as in the UK, the Court or the Court of Protection, must be satisfied that there is no longer any need for the Conservatorship before it is removed. Most frequently, a Conservatorship and a Deputyship can end if a person recovers their mental capacity.

Basic principles of capacity in the UK

Deputies have to act in accordance with the guiding principles of the Mental Capacity Act which are:

1. Presumption of capacity

Everyone is assumed to have capacity until proved otherwise. Even if someone lacks capacity in one area for example to manage finances, it does not mean that person lacks capacity to decide for example, where they want to live. 

2. Support to make a decision

The supported decision principle requires that all practical steps should be taken, to help the person make the decision themselves before treating them as unable to make the decision. 

3. Ability to make unwise decisions

The third principle states a person is not to be treated as unable to make a decision, merely because they make an unwise decision

4. Best interest

The fourth principle requires that if a decision is made (or an act done) on behalf of a person who does not have mental capacity, then it must be made (done) in their best interest. There is no legal definition of best interest but s.4 of the Mental Capacity Act offers a procedure to assist when making a best interest decision. 

5. Least restrictive

Finally, if a decision is made (or an act done) on behalf of a person who does not have mental capacity, it should ideally be the least restrictive option of the person’s rights and freedoms. Other less restrictive options should be considered and applied if at all possible. 

In order to assess capacity, the following two-stage test must have been followed:

• Is there an impairment of or disturbance in the functioning of the person’s mind or brain?
• Is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision?

The second stage of the test (or functional test) dictates that the person is unable to make a decision if they cannot:

1. Understand information about the decision to be made
2. Retain that information in their mind
3. Use or weigh-up the information as part of the decision process
4. Communicate their decision

If a person lacks capacity in any of these areas, then this represents a lack of capacity (Mental Capacity Act 2005: Code of Practice).

So would Britney have been deemed to lack capacity in the UK?

It is always assumed that at the time of her first two psychiatric admissions Britney was suffering from a mental disorder but the nature of the disorder has not been made clear, nor whether it flowed from drug and alcohol misuse or is of a more enduring nature. She undoubtedly misused drugs and alcohol which may well have impaired her judgement for periods but during the conservatorship she was being drug tested daily and she had minders 24/7. She had no freedom, so during the conservatorship it is highly unlikely that any want of capacity was due to abusing substances.  She made unwise choices if you choose to see them that way – tattoos, head shaving, driving with her child on her lap, refusing to hand over custody of her children. Arguably, none of these would look bizarre if it were anyone else whom the paparazzi were not pursing 24/7, whose ex-spouses and families were not exploiting the situation. She has suggested she has bipolar affective disorder (and the actions just described could well be consistent with that diagnosis) but this is a condition which remits. When people are out of acute phases they return to their lives and they work. Britney started work immediately after two very brief admissions in 2008, and through to 2019 when she refused. She worked even when her father made her perform with a temperature of 104C. Those who worked with her during this period attest to her always being on top of her game, polite, on time and extraordinary professional. There is no suggestion from anyone of them that Britney was exhibiting signs of mental disorder. 

But even if we were to assume she has a mental disorder, her work life would strongly suggest her condition remitted and she regained capacity to make most, if not all, decisions including as to who should manage her money, after a brief period. How Britney was deemed to lack capacity for 13 years is a mystery and it seems unlikely that the capacity assessments tendered to the court will be made public. 

In the UK any deputyship would have been temporary, scrutiny of her capacity more robust and frequent.  If there had been a period during which she was critically unwell, a professional would have been appointed to manage her money, and there would not have been a professional who would have been able to force her to work, sign multimillion dollar deals on her behalf and then take a cut of her earnings ie.  someone  with whom there would be no conflict of interest. In these circumstances she may well have agreed to have her money managed by professionals when she recovered her capacity.

In the UK a list of things over which the deputy could make decisions would be provided. Limiting friends, forcing birth control and compelling the “incapacitated” person to work would not be on the list. The list would be dictated by the principles of the MCA and all decisions would have to be made in the person’s best interests after all efforts had been made to empower the person to make the decision for themselves. 

Belinda Cheney is a District Tribunal Judge in the Health and Social Care Chamber (Mental Health)