Whoops, She Made Headlines Again
Britney Spears is making the world aware of Guardianships and Conservatorships which is raising lots of questions about these legal terms.
What may not be clear are the varied and complicated obstacles, struggles, and obligations of any Guardianship or Conservatorship. Ms. Spears’ Conservatorship, which she has been living under for 13 years is making headlines as Spears makes efforts to get the conservatorship reversed.
Most often, a conservatorship or legal guardianship is granted to legally authorize a person to make financial and/or health care decisions for those who are incapable of making decisions, such as people with mental disabilities and those with dementia. The details of Britney Spears’ conservatorship drama can be found all over the Internet, so I will not delve into any of the alleged details of her case. However, I will explain the differences between guardianship and conservatorship and how and why they are typically used.
Guardianship Or Conservatorship
Let me begin by saying that the term guardianship is often used interchangeably with conservatorship, however there are legal differences. In Georgia, the courts grant separate and distinct permissions when a person is being appointed a conservator versus a guardian over a protected person. A guardian is a court appointed person who has legal authority over the protected person (similar to that of a parent over a child). A conservator is a court appointed person to manage over the assets and financial affairs of the protected person. Whatever term you use, guardianship and conservatorship petitions are emotionally and financially expensive and are used in rare circumstances and typically only when they are deemed absolutely necessary.
As stated above, a conservator is a court appointed individual and would be required to handle the financial affairs of another if no Durable Financial Power of Attorney is in effect over the protected person. Only the assets such as money and property are subject to the conservator’s jurisdiction. A conservator has power to invest funds of the estate and to distribute sums reasonably necessary for the support, care, education or benefit of the protected person and any legal dependents of the protected person. A guardian is not the same as a conservator. The guardian is a court appointed person who has power and responsibility over the individual.
A Durable Financial Power of Attorney is what is required to achieve the effect of a conservatorship without court involvement. A Health Care Power of Attorney is what is required to achieve the effect as a guardianship without court involvement. That is why I often refer to these two Power of Attorneys as two of the three essential documents that all persons over the age of 18 should have as part of their estate and asset protection plan.
When Difficult Decisions Must Be Made
It is not easy when a family member is incapable of handling his or her own affairs and the family has to make a decision about whether to assume legal responsibility for those tasks. Often it is an elderly parent or relative. If the person is not elderly, they may have mental illness, they could be someone who has been injured, or a victim of a drug or medication overdose.
Many times, these tasks are assumed without a formal procedure being undertaken. However that method soon runs into problems when third parties such as banks or governmental agencies require some type of legal documentation in order to deal with a person who claims to represent the interest of another. Further, other family members or friends may be uncomfortable or suspicious when a parent’s assets or care is handled without oversight or court control.
Lastly, but certainly not least, the person being cared for, the “Ward,” (Britney Spears is the “ward” of her conservatorship) can him or herself become angry or resistant to another person suddenly claiming rights to make decisions for him or her, and the law of the United States invariably gives the Ward the right to insist upon some method of due process before another can make decisions on his or her behalf. This is why the courts have adopted complex procedures and regulations concerning the appointment of guardians and/or conservators. This is also why most people never hear about them. They are not household terms because they are used in rare instances and usually by the very wealthy.
So, now you know a little bit more about the complications behind the latest Britney Spears drama. And we encourage you to have both a Durable Power of Attorney and Health Care Power of Attorney as a part of your estate plan to avoid similar stresses and drama. If you or a loved one presently lacks one or both of these Powers of Attorney, then please reach out to our team and we can assist in preventing you or your loved one experiencing the frustrations and frictions we are seeing play out with Britney Spears.