What is behind the #FreeBritney campaign?

29/07/2021

Recently the US conservatorship system has been brought to the forefront due to the issues surrounding the management of the finances and welfare of pop star Britney Spears. This has led to a powerful campaign on social media which is now known as the #FreeBritney campaign.

This campaign has led to widespread coverage of the case and even the proposal of a new legislation. The Freedom and Right to Emancipate from Exploitation (Free) Act would see the position in the US come slightly more in line with the UK by introducing the option to appoint a public conservator.

Here we look at what a Conservatorship currently is and what would happen to Britney if she was a UK national. 

What is Conservatorship?

Conservatorship is a legal concept in the US. The court appoints a responsible person or organisation (“the Conservator”) to make decisions on behalf of an individual who lacks the mental capacity to make decisions for themselves in relation to their personal welfare and/or finances.

In relation to Britney, her father was appointed as her Conservator in 2008 following a series of public breakdowns.

The UK Equivalent

The UK equivalent to Conservatorship is called Deputyship and the individual appointed is called the Deputy. A Deputy is appointed when an individual is deemed by the Court of Protection to lack mental capacity. A Deputy can also be appointed in respect of an individual’s financial affairs and/or health and welfare.

An individual may lack capacity for several reasons such as dementia, brain injury, mental illness, cerebral palsy etc.

The rules in relation to Deputies in England and Wales are governed by the Mental Capacity Act 2005 which provides principles that must be adhered to ensure that the individual is protected. The Deputy must comply with the powers granted to them by the Court and the five statutory principles in section 1 of the Mental Capacity Act 2005 which summarized are as follows:

  1. A person must be assumed to have capacity unless proved otherwise.
  2. A person must be given all opportunities for help before they are considered unable to make decisions.
  3. A person has the right to make unwise decisions, which alone are not sufficient to prove that they lack capacity.
  4. Any act done or decision made under the provisions of this act must be done in the individual’s best interest.
  5. Anything done for the person should be the least restrictive of their basic rights and freedoms.

Similarities between the two

Some similarities between the two systems are as follows:

  • In both the UK and US, you can have a Conservator/Deputy to protect the personal welfare and/or finances of the individual. Mr Spears was initially appointed as Conservator for both Britney’s personal welfare and finances. He stepped down as Conservator in relation to her personal welfare in 2019 due to his own health reasons.
  • To be appointed, medical evidence must be provided confirming that the individual lacks mental capacity.
  • If there is no one to take the role or an agreement cannot be reached, then a Panel Deputy can be appointed in the UK or a Public Conservator in the US. 

Differences between the two

Some differences are as follows:

  • In England and Wales, the Deputy reports to their regulator, The Office of the Public Guardian, on an annual basis. This means that any key decisions and expenses (usually anything over £500) will need to be explained.
  • The costs the Deputy can charge are closely controlled and are also reviewed by the Court on an annual basis. The Deputy can only charge a set hourly rate and their time spent is scrutinized by the Court on an annual basis and reduced where necessary.
  • In the US however the Conservator is entitled to charge a percentage of a person’s assets. It is alleged that Mr Spears spent more than $2 million of Britney’s funds on legal/conservator fees.

Conclusion

This case highlights the system in the event that an individual lacks mental capacity. Unfortunately, most individuals are not aware of the deputyship process in the UK until such time that a loved one requires a Deputy.

In the US and UK the Conservatorship/Deputyship can end if a person recovers their mental capacity. Whilst we have not been party to the medical records of Britney we cannot say if she should still be subject to the conservatorship order as it will be based on whether she is deemed to have mental capacity. However based on the information that is being released, it has been argued that her father has not acted in her best interests.

If this case was in front of the Court of Protection in the UK, the Court would consider if the removal of Mr Spears would be in Britney’s best interests and would remove him if that was the case.

One final point

It is important to understand that the deputyship system is different from a Lasting Power of Attorney (LPA)

An individual can enter into an LPA only when they have mental capacity. An individual can appoint a person to act as their attorney which will allow them to make decisions on their behalf.

In the event that an individual loses mental capacity then they can have peace of mind that their financial affairs/health will be looked after by the person/people they have chosen. Their family members would therefore not need to go down the deputyship route as the LPA would take effect.

It is also a much shorter and less expensive process than deputyship and therefore something that all individuals should consider.

More information

If you require any further information on Deputyship or Lasting Power of Attorneys, please contact our private client team.

This article was written by Cansu Hussein, Solicitor in our Private Client Team The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2021.

29/07/2021

Authors

Cansu Hussein

Solicitor

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