Many people have been following the developments in the conservatorship of Britney Spears. It is hard not to since the matter has been in the headlines so often of late. Ms. Spears alleged gross financial and personal abuse by her father, who, until he was suspended earlier this week by Los Angeles Superior Court, had been the conservator in charge of Ms. Spears’s finances since 2008. He was replaced by a temporary conservator of Ms. Spears’s choosing.
There is little doubt the Ms. Spears needed a conservator years ago when she had a very public breakdown. Ms. Spear’s objective is to have the conservatorship discontinued. Whether she needs a conservator now will be for the court to decide. I am sure we will be reading about this for some time to come.
California utilizes conservatorships for people in need of financial oversight. New York did until 1993, when Article 81 of the New York Mental Hygiene Law was enacted. Conservators were replaced by property guardians. Committees, which oversaw a person who could not handle his or her personal needs, were replaced with personal needs guardians. The beauty of Article 81 guardianships, unlike conservatorships and committees, which were all-encompassing, is that guardianships can be tailored in each case with the standard being the least restrictive means needed to protect the individual determined after a hearing to be incapacitated.
With that said, the guardianship of famous artist Peter Max made the news earlier this week. Mr. Max was adjudicated as incapacitated under Article 81 in late 2016, and a guardian was appointed for him. He is said to have dementia. Underlying the need for a guardian was the alleged abuse of him by his then-wife. However, she committed suicide last year just prior to when Mr. Max’s second guardian was replaced by his current one, an attorney.
Mr. Max’s daughter alleges that her father is being held hostage by the guardian in the sense that access to her father is restricted and also that the current guardian is abusing her authority as Mr. Max’s property guardian. Mr. Max’s son and a close friend of the artist both assert that the guardian has placed onerous restrictions on visiting Mr. Max. Mr. Max’s daughter wants the guardianship to end. His son, who is estranged from his sister, does not. It is important to note that the veracity of the allegations against Mr. Max’s current guardian has not been determined by the court.
Britney Spears and Peter Max are high-profile individuals. But, what about the many, many average people for whom a conservator or a guardian has been appointed? What prevents abuse in their cases and, if there is abuse, how is it remedied?
In New York, court-appointed guardians are granted specific powers and cannot act beyond those powers. Lay guardians must take guardian training, as must guardians who are attorneys, as in Peter Max’s case. The court usually will require a guardian to be bonded for the amount of money that he or she is overseeing for the incapacitated person. A property guardian, whether a family member or friend of the incapacitated person, or an independent guardian, must account each year for all of the money received and expended by the guardian. A personal needs guardian must visit the incapacitated person a certain number of times each year, must make sure the incapacitated person receives proper care, and must keep the court apprised of the incapacitated person’s health and well-being. Often, the court appoints one person to be both the property guardian and personal needs guardian. A court examiner is appointed for each guardianship. The court examiner is an individual, usually an attorney, whose function it is to review the initial and annual reports that each guardian is required to file. The court examiner must alert the court if the reports are not filed or if there are discrepancies in the reports.
Even these safeguards do not ensure that there is no abuse. If the incapacitated person has family or friends other than the guardian, they should keep close tabs on what is going on and should alert the court to anything that appears untoward. If the incapacitated person is able, he or she should do the same. Although there are abuses, most of the time an Article 81 guardianship is a humane solution to an often-sad situation.