Exploring US Conservatorship and how to protect vulnerable individuals in England and Wales.

Exploring US Conservatorship and how to protect vulnerable individuals in England and Wales.

Earlier this year, the #FreeBritney movement gained further momentum following the release of the New York Times documentary, Framing Britney Spears. It is fairly well-known that Britney has been under a conservatorship since her public breakdown in 2008, with her father, Jamie Spears, appointed to manage her finances, health, business deals and personal life.

A conservatorship, is where an individual or organisation is appointed to care for an adult in the US who is deemed unfit to care for themselves or to manage their own finances.

Jamie Spears has come under criticism from those close to Britney, as well as her fans, for the way he has dealt with matters under the conservatorship, with some saying Britney has little to no freedom when it comes to decisions about her personal life. In November 2020, a judge appointed Bessemer Trust, a corporation, as co-conservators. Jamie Spears has objected to their involvement and another hearing has been scheduled for April.

In the wake of the Framing Britney Spears documentary, Britney's conservatorship has prompted discussion from US politicians as to the use of conservatorships and the risk of abuse those under them may face.

This issue has been highlighted again following the release of a new film called 'I Care a Lot'. The film follows Marla Grayson, a 'professional conservator' appointed by a US court, who exploits the elderly and most vulnerable by bribing doctors to give phoney dementia diagnoses for well-off elderly patients with no family members in the picture to stop her. The story sees her not acting in the best interests of those under her care, draining their bank accounts for her own benefit.

While 'conservatorship' is a US term with a different legal process from that in England and Wales, sadly elder abuse and the abuse of those most vulnerable within our society does happen.

So what can you do to legally protect yourself or those who may need such assistance in England and Wales?

Lasting Powers of Attorney

You can choose to make Lasting Powers of Attorney. There are two types; a Lasting Power of Attorney for Property & Financial Affairs which allows you to choose who can handle your money i.e. pay bills, sell your property, pay care home fees and, a Lasting Power of Attorney for Health & Welfare which allows you to choose who can make decisions about your wellbeing i.e. where you should live.

The people you appoint under your Lasting Powers of Attorney are known as your attorneys. Attorneys are required, under the Mental Capacity Act 2005 and Mental Capacity Code of Conduct, to make decisions that are in your best interests and for your benefit.

You can only make Lasting Powers of Attorney when you have mental capacity.

Click here for more information on Lasting Powers of Attorney.

Court of Protection

When a person lacks capacity to manage their property and financial affairs, or to make decisions about their personal welfare and hasn't prepared Lasting Powers of Attorney, or doesn't have the capacity to, then the Court of Protection can appoint deputies. Deputies have similar powers to attorneys and are also required to act in accordance with the Mental Capacity Act 2005 and Mental Capacity Code of Conduct.

Due to principles set out in the Mental Capacity Act 2005, it is more common for a deputy to be appointed to manage a person's property and financial affairs. This is because the Court of Protection considers that there is sufficient authority within the Mental Capacity Act 2005 for welfare decisions to be made on behalf of a person who lacks the capacity to make them themselves i.e. decisions relating to their treatment or care needs. Specific conditions must be met for the Court to consider granting an Order for Personal Welfare.

Click here for more information on Court of Protection Deputyships.

Office of the Public Guardian

All attorneys and deputies are supervised by the Office of the Public Guardian.

It is important that before taking on the role of an attorney or deputy you fully understand what it entails. As attorney/deputy you are required to act in the best interests of the person you are appointed for, taking into account their own circumstances and needs.

Capacity can be fluctuating and is decision specific. This means that a person may lack the capacity to manage their finances, but has the capacity to decide where they want to live. All reasonable efforts should be made to discuss the decision with the person and to promote their wishes and feelings. Even where the person may lack the capacity to make the actual decision, consideration should still be given to any views they have expressed.

In the event that you have a concern that someone you know is at risk, or being subjected to financial abuse or neglect of their care needs, then you should raise a safeguarding concern with the Office of the Public Guardian. They will investigate this further and take the appropriate steps such as; meeting with the attorneys/deputies, requesting the attorneys/deputies to account for all funds spent, and making an application to the Court to remove the attorneys/deputies and appoint someone else in their place.

The Office of the Public Guardian also has a panel of professional Deputies who can be appointed when there are no appropriate friends or family members to act, or in circumstances when there is a dispute between family members as to who should be appointed. Lin Whitehead, Partner and Head of the Private Client Department at Clapham & Collinge LLP, is one of the Office of the Public Guardian's Panel Deputies and is one of two Panel Deputies for Norfolk and Suffolk.

With one of the largest Wills, Trusts and Probate departments in Norfolk, we have a reputation for providing the local community with an extensive range of private client services. Clapham & Collinge are accredited members of the Solicitors for the Elderly, meaning our lawyers are particularly skilled at responding to the needs of elderly clients.

To book an appointment or to discuss your circumstances in further detail, please contact our Client Relations Team on 01603 693500 or email us using the 'Make an Enquiry' form on our website. We can carry out telephone or video appointments, reducing the need for face-to-face meetings in accordance with social distancing guidelines. Face-to-face appointments are available at our Norwich, North Walsham, and Sheringham offices

*This article is accurate at the time of writing (22nd March 2021). This article is provided for general information purposes only and does not constitute legal advice or other professional advice.