Conservatorship & Deputyship – A Comparison

The #freebritney campaign has been in the news again recently, as Britney Spears’ father, her “conservator”, has announced he is stepping down from the role. He has long been criticised for receiving a percentage of her income and a salary for managing her financial affairs, and more widely for exerting what many believe to be excessive control over the singer.

Britney Spears’ father, Jamie Spears, became her conservator when the singer had a severe breakdown and lost the capacity to manage her financial affairs. Mr Spears also had the authority to make decisions over the singer’s personal life, and this caused particular controversy. Britney Spears’ supporters accused the conservator of obstructing her from marrying, from having children, and making career decisions she did not agree with.

US conservatorship system and the deputyship system in England and Wales

The US conservatorship system is in some ways similar to the deputyship system in England and Wales. Deputyship arises when an individual (P) has lost capacity, and someone is appointed by the Court of Protection to manage P’s financial affairs. This will often be a close relative, but sometimes a professional deputy will be appointed. In rare cases, a deputy can also be appointed to make health and welfare decisions on behalf of P. However, health and welfare deputyships are few and far between and only granted in special circumstances.

In England and Wales, a deputy may claim reasonable expenses for his/her efforts on P’s behalf. These are closely supervised by the Office of the Public Guardian (OPG) to ensure that deputies are not incurring expenses without good cause. Professional deputies do receive payment for their services, and again the amount is monitored by the OPG. In the USA, conservators receive a salary, and sometimes a percentage of P’s income for their services. This is a key point of criticism aimed at Jamie Spears, who is believed to have received excessive amounts.

A protected party can apply to the Court of Protection to have a deputyship order revoked or varied, and will usually be represented by a litigation friend. To revoke a deputyship order, the protected party must usually show that they have regained capacity. Capacity is commonly misunderstood to be a simple “Yes” or “No” question but it is much more complex than this. An individual can have the capacity to decide how to spend small sums of money, for example, but not how to manage a property portfolio. The size and nature of the protected party’s “estate” and their ability to understand how it works will be a key factor for the Court to consider.

In the USA, a similar process exists in which the individual in question can petition, and will normally be “evaluated” so as to assess capacity. For Britney Spears to succeed, she will have to go through this process and satisfy the Court investigator that she is capable of making various decisions relating to her finances and her personal life. There could be some difficulty as Britney Spears’ net worth is not inconsiderable, and her finances will most probably be managed in a complex fashion. However, if US legislation does include something comparable to the Mental Capacity Act 2005, it may be possible for her to argue that with the right help and advice, she would be able to understand complex financial issues.

It is evident that for her father to continue in the role would have been difficult, and his resignation appears to be a significant step in the right direction, but proceeding without a conservator is a much bigger hurdle to overcome. It will be interesting to see whether Britney Spears’ campaign succeeds.