Most of us know the name “Britney Spears” from her long show business career, which began when she was a child.  By the time she was twelve years old, she starred in The Mickey Mouse Club.  She later catapulted to stardom as a “pop” star.  Most of us are equally aware that Ms.  Spears suffered the same ill-effects from which many child stars suffer.  In 2007, she had a very public meltdown, the most visible sign was when she shaved her head and exhibited other erratic behavior.  What we do not know is the mental anguish she endured that led up to it.  This led to the conservatorship that we have read about periodically since 2008, and more frequently in the last year or so, as she has pushed back against what she alleges are wanton abuses of her person and liberty interests.  For a complete discussion, I point you to an in-depth article from The New Yorker that I found online, titled, Britney Spears’s Conservatorship Nightmare,  by Ronan Farrow and Jia Tolentino.

The allegations range from the financial abuse by her father, who oversees her large monetary estate, to allegations that she has not been allowed to have another child, despite her fervent desire for one.  These types of allegations should resonate with everyone, as they impinge on our basic liberty interests.  However, often there is a need for a conservatorship, or as it is denominated in New York’s Mental Hygiene Law Article 81, a guardianship.  Indeed, it appears that, in 2008, it was appropriate for the California court to place Ms. Spears in a conservatorship.  What is not appropriate are the seeming flagrant abuses practiced on her by, among others, her father, under the auspices of the court.

These types of public cases shed light on the potential for abuse, and often actual abuses, by conservators or guardians and can discourage a well-meaning person from commencing a legal proceeding to have someone adjudicated as incapacitated, so that, to use New York’s term, a guardian of the person or property will be appointed for someone who needs help and support.  What New Yorkers should know is that, despite the potential for abuse, Article 81 includes certain protections for an individual alleged to be incapacitated, often referred to as the “AIP,” or, later, declared incapacitated.  For example, when an Article 81 proceeding is commenced, the court generally appoints a Court Evaluator to essentially, be the “eyes and ears” of the court.  The Court Evaluator is usually an attorney or other professional who has taken the requisite training and is on a list approved by New York’s Office of Court Administration.  It is the Court Evaluator’s duty to interview the person who commenced the proceeding, the AIP, and those people, often family members, who can shed light on the situation.  Among other things, the Court Evaluator is tasked with looking into the AIP’s finances and whether the AIP has implemented other means by which he or she can be cared for, for example, having an agent under a Power of Attorney, who can handle that person’s financial affairs.  After the investigation is concluded, and prior to the hearing, the Court Evaluator renders a report to the court with his or her findings, recommendations, and conclusions.  Additionally, the court often appoints counsel for the AIP to represent him or her during the proceeding.  At the hearing, the petitioner must prove, by clear and convincing evidence, the allegation that the AIP is incapacitated and needs a guardian and, if the court declares the AIP to be incapacitated, it is the court’s duty to grant the least restrictive powers under the particular facts to the guardian appointed.  Often, the court requires the guardian to be bonded, particularly, if he or she will be responsible for an appreciable sum of the AIP’s money.

The court’s supervision of the guardianship process does not end with the appointment of a guardian.  Ninety days after the guardian has qualified, that person must render an initial report to the court and to a court examiner, who is usually an attorney with special training, showing what the guardian has done both with the incapacitated person’s (“IP”) finances and also how the IP is faring personally.   Then, the guardian must file an annual report every year in May.  Each report is reviewed by the court examiner and, if all is found to be in order, the court issues an order approving the report.  Guardians are subject to removal by the court for abuse of the IP’s person or property.  Further, the IP can petition the court to terminate the guardianship, assuming the IP has the mental status to do so.  One hopes these protections are sufficient to protect New Yorkers from what is alleged to have happened to Britney Spears.

But, as we know, abuses occur, and sometimes go undetected.  What then?  A Democratic Representative from Florida and a Republican Representative from South Carolina recently introduced their “Freedom and Right to Emancipation from Exploitation Act” (“FREE Act”).  If the FREE Act is passed, an individual would have the right to have his or her guardian replaced with an independent guardian without having to prove any abuse by the guardian.  The bill also would provide incapacitated persons with independent case workers and other safeguards, necessary when the IP cannot advocate for himself or herself.  Stay tuned.