Guardianship Is Complex and Should Be Tailored to the Person’s Needs

The news coverage of Britney Spears’ conservatorship case has highlighted a system that restricted an adult woman from independently spending money, traveling, making medical decisions and having a legal voice. While we do not know the details of her medical or mental health and therefore cannot speak to the need for a conservatorship, the case brings up the issue of quality guardianship and conservatorship.

Guardianship and conservatorship are terms used to describe a legal arrangement, in which a person or entity is appointed by the court to make decisions for an individual who has been found to lack capacity. Because guardianship and conservatorship are subject to state law, the language used and legal requirements vary by state.

While in California, where Britney Spears’ case is held, the arrangement is referred to as conservatorship, in many other states a guardian makes decisions regarding health and personal affairs, while a conservator makes decisions regarding financial affairs. For purposes of this article, we will refer to both arrangements as “guardianship.”

People May Lack Capacity, but Retain Rights

Guardianships should only be used when less restrictive measures have been ruled out and should be tailored so that the person maintains as much autonomy as possible. A court may appoint a guardian when it determines that a person lacks capacity and no one has been authorized to make decisions on their behalf. Deficits in capacity can be a result of an intellectual or developmental disability, mental or behavioral health conditions or age-related changes to cognition such as a stroke or dementia. The judge will consider medical evidence to decide the areas in which the person lacks capacity and should limit the guardianship to those areas of need.

‘Choosing who should be the decision maker is a relatively low bar for capacity.’

Much of the public outrage around Britney Spears’ guardianship case has concerned the many rights that she has lost as a result of being subject to guardianship. The National Guardianship Association’s Standards of Practice instruct guardians to “identify and advocate for the person’s goals, needs, and preferences” (Standard 7).

For example, even when a person is subject to guardianship, they retain the right to be involved in their decisions to the extent they are able. During her court hearing, Spears said that she did not want her father to be her guardian. Choosing who should be the decision maker is a relatively low bar for capacity. She has the ability to identify people whom she trusts and does not trust. The court should take this request seriously.

Spears later said that she did not know she could petition the court to end her guardianship. But she had an attorney who should have given her this information. A good guardian and a good legal team support the right to be involved in decisions and the right to access legal advice.

In the field of aging, some adults with dementia may not have the capacity to understand a medical decision, but may have the capacity to designate a family member or trusted friend to be a healthcare agent. We should not assume that a diagnosis of dementia necessarily infers incapacity.

What Might Good Guardianship Look Like?

State courts have different systems for monitoring guardians, from well-funded oversight offices, to well-meaning judges with few resources, so although we strive for best practice in guardianship, not all instances of mistake or overreach will be identified. As aging services professionals, we can help spot red flags. For example, guardians who do not provide for the person’s basic needs, such as securing safe and appropriate housing and necessary medical care, are not likely to be good guardians. Guardians who do not regularly communicate with the individual and who are unreachable in a timely manner may not be providing good guardianship. And guardians who do not promote the person’s independence may not be good guardians.

Guardianship should be a tool to help and empower people who are in need of decisional support.

Some of these issues are related to lack of training—we often want to “protect” those whom we feel are vulnerable, and don’t recognize the impact paternalistic behavior can have. But guardianship should be focused on what is important to the individual, as well as what is important for the individual. Proper training can target problematic behaviors and lead to better outcomes.

Guardianship and conservatorship allow some people with disabilities to access the medical, social and financial resources they would otherwise be unable to access due to their inability to make or communicate informed decisions.

But, while guardianship can be a tool to support and empower people who are in need of decisional support, Spears’ allegations remind us that guardianship also can be intrusive and limit a person’s independence. One of the major responsibilities of a guardian is to advocate for the individual’s values and wishes, but Spears’ testimony suggests she had little role in decisions about her life.

Her case highlights the need to train guardians and the court, supervise and monitor guardians and actively seek alternatives for people who can benefit from a less restrictive alternative.

Heather Connors, PhD, is executive director of the Center for Guardianship Excellence in Andover, Mass.