We’re not exactly dedicated followers of pop culture, but it was hard to miss the sensational headlines last week following Britney Spears’ impassioned statement to a probate judge. And while your own personal circumstances might bear no apparent resemblance to the superstar’s, you could end up facing the same predicament in which she now finds herself…if you’re not careful.
We’re speaking, of course, of America’s deeply flawed guardianship system – the same one that Britney claims has kept her as a virtual slave for the past 13 years. About 1.5 million Americans – two-thirds of them aged 65 or over – have their lives controlled by court-appointed guardians. And by “controlled,” we mean every aspect of their lives. (Guardians are sometimes called “conservators” and a guardianship may also be referred to as a “conservatorship.”)
State courts appoint guardians to make personal and financial decisions on behalf of adults found to be legally incompetent. A guardian is supposed to ensure that their “wards” have safe housing and help them negotiate the legal and medical systems they may be incapable of dealing with on their own due to physical or mental decline.
A ward loses nearly all civil rights once a judge approves a guardianship. The guardian has complete control over the ward’s personal and financial affairs. All of a ward’s money can be transferred to a guardian’s own account. A ward can also be forcibly relocated to any residential facility the guardian sees fit. Family members may lose the right to obtain information about the ward’s finances or medical conditions. Indeed, family members may even lose the right to visit the ward, because the guardian can forbid it.
As one probate judge described it on John Oliver’s Last Week Tonight:
Guardianship is a massive intrusion into a person’s life… they lose more rights than someone who goes to prison.
Granted, when Britney was declared legally incompetent in 2008 and her father and a lawyer appointed as her joint guardians, there were ample reasons to question her mental stability. At the time, she was only 26 – much younger than a typical ward.
Thirteen years later, Britney claims she wants her life back.
In a hearing before a California probate judge last Wednesday, Britney requested a public airing of her statement to the court. She wants the guardianship to end and describes it as an oppressive and controlling tool that, as we’ve described, governs every aspect of her personal and financial life. At stake is a personal fortune valued at $60 million.
We don’t know if Britney will succeed in her campaign to regain control over her own life. Nor can we address the validity of claims she’s made accusing her father and others involved in her guardianship of making her a virtual slave.
But there is one thing we can say for certain: guardianship fraud is surprisingly common. In a series of cases described in a 2017 article in The New Yorker, a guardian in Las Vegas named April Parks targeted elderly individuals with substantial assets. Parks paid corruptible doctors to declare these individuals incompetent and place them under her guardianship. She would then acquire control over their assets and charge outrageously high fees to arrange for their care.
When her wards’ estates were depleted to the point where they qualified for Medicaid, Parks would place them in nursing homes at government expense. In virtually all cases, this happened without a formal cognitive assessment to determine if the ward could continue living independently. Parks was eventually sentenced to serve up to 40 years in prison over her conduct.
We’ve come across similar cases in dozens of other states. And while we believe most guardians exercise their authority ethically and with discretion, if only 1% of guardianships are abusive, that means 15,000 Americans are victims of this system.
Since it’s extremely difficult to escape a guardianship once you’re in the system, plan ahead to avoid it. Getting your legal documents in order is the best way to avoid becoming the next victim. We insist that all Nestmann clients execute durable powers of attorney and health care proxies and record them in public records.
These documents should name someone you trust – generally your children or grandchildren – to step in if you become incapacitated. Whomever you name should not be someone in financial difficulty who might use your assets to satisfy their own financial obligations. The document should also be revocable unless a formal cognitive assessment performed by a licensed physician (ideally two licensed physicians) determines you are incompetent.
Another precaution is to build a safety mechanism into your planning. If the agent you name steps in to assist you if you’re incapacitated, your documents should require the agent meet periodically with an independent party – your accountant, for instance – to ensure your assets truly are being used for your benefit.
Protect yourself from guardianship abuse. Don’t be the next Britney Spears.