A Victory for Britney – Deputyship v Conservatorship
I am a huge Britney Spears fan. I am not afraid to admit it - I have a T-shirt which I wear with pride! But recent news surrounding her conservatorship and the way she has been treated makes for difficult reading. Although, as I am sure you have seen in the news, she has been released from her conservatorship for good. As a private client solicitor, I regularly meet people who have fluctuating capacity and mental health difficulties who are not subject to such stringent controls. This made me wonder: if Britney lived in England and Wales would she be placed under a deputyship order? And if so, would her father have been the most appropriate person to be named as a deputy?
For background, a deputyship order is the English and Welsh equivalent of a conservatorship in the US. The principles behind both orders are the same, in that they are put into place because it is in the individual's best interests.
If someone lacks capacity, a close family member or a friend can apply to the court under Section 16 of the Mental Capacity Act 2005 (MCA) to become a deputy. This would give them the power to either deal with the individual's financial and property affairs or, less commonly, to deal with their health and welfare. It is at the court's discretion to examine any application made and they are not obliged to appoint the applicant as a deputy. The court will also take into account the individual's preference of who to appoint as well as look into the applicant's suitability. For example, they might check for a history of good financial management. In Britney's case, her father Jamie Spears has had several failed businesses and financial problems and had very little contact with Britney in the ten years prior to her conservatorship.
Often, if the individual is of a high net worth, the court will insist on a professional deputy being appointed such as a solicitor or an accountant. In contrast, a US conservator does not need to have any professional qualifications, even when dealing with a £49,000,000 estate. Another difference is that under a deputyship, a lay deputy can only claim out of pocket expenses. Jamie Spears was paying himself a salary of $16,000 a month.
In England and Wales the most common reasons to appoint a deputy are because an individual has had a serious brain injury, has dementia or severe learning difficulties. It is also important to note that Section 1 of the MCA emphasises that the deputy must try and facilitate any decision making with the individual and that any decisions made must be in the individual's best interests. Additionally, the process to appoint a deputy is a long one, usually lasting around 6 months.
The path to Britney's conservatorship was triggered by several personal crises. In early 2007, she lost an aunt with whom she was very close to cancer. Later that year, she suffered a very public mental breakdown sparked by her divorce from her second husband, Kevin Federline, and subsequent custody fight over their two sons. Her breakdown lasted for about one year and peaked when she refused to relinquish control of her sons in January 2008, leading to a short stay in rehab. I think it is important to note that while undergoing such extreme turmoil, she was deemed well enough to release her fifth studio album, Blackout.
In February 2008 Jamie Spears obtained a conservatorship over both her financial and personal affairs. A few months afterwards, Britney started filming Britney: For the Record, a documentary showcasing her 'come back'. By September, she was opening the MTV Music Awards. Six months after the conservatorship started, she was back to working full-time. In December 2008, she released her sixth studio album Circus. By January 2009 she was back on tour. Does this sound like someone who continues to lack mental capacity?
Analysing the events which occurred during that period, it is highly unlikely that a court would have found Britney to lack capacity under the MCA. Even if there had been an application, the court would likely have found Britney's capacity to be much more stable once she had received treatment in a suitable facility.
In 2019, Jamie Spears stepped down from managing her health and welfare due to his own health concerns. Shortly after this, Britney refused to proceed with a second Las Vegas residency. As the months passed, the #FreeBritney movement grew, fuelling speculation over Jamie Spears's treatment of his daughter.
After thirteen years, Britney's own legal team finally successfully applied to remove her father from his position managing her financial affairs. Last month, she successfully petitioned to have the conservatorship removed completely. She has also reached out to her fans thanking them for starting the #FreeBritney movement.
In England and Wales, if you wanted to bring a financial deputyship to an end you would need to submit medical evidence that you had regained capacity to the Court of Protection, together with form COP9, and the Court would then determine whether you had regained capacity in respect of the management of your finances. Sadly, for Britney it appears she was so under her father's control that she did not know that she could bring the conservatorship to an end, or that she could appoint her own legal representation. It appears that one main difference is the emphasis on a deputy to do what they can to allow the individual to make their own decisions, whereas in the US the conservator has complete control over the individual. To put this into perspective Britney was not even allowed to drive her car or even handle cash.
It is very clear that in England and Wales, it would be highly unlikely that Britney would had been kept under a deputyship for thirteen years and it is questionable that her father would have been deemed the most suitable person to manage her finance, property and personal welfare matters.
If you have any questions regarding deputyship orders or bringing an order to an end, please do get in touch with Michelmores.