Throughout the whole #FreeBritney Movement, I have been a little hesitant to speak about the litigation because I know so little about California law and conservatorship processes.i Now that the conservatorship has been lifted, I still am left with questions about why Britney Spears found herself in a Probate Conservatorship for so many years and what role every person and party had with respect to her conservatorship.
Even though my knowledge of the Britney Spears conservatorship is based solely on media reports, her case provides valuable insight as to the limits of a conservatorship and the rights maintained by the person in the conservatorship (called a “ward” or “conservatee”). Assuming that Ms. Spears gave accurate testimony to the Los Angeles Superior Court this summer, I believe that she suffered under an abusive conservator, and I also believe that her former conservators, Jodi Montgomery (personal conservator) and her father Jamie Spears (financial conservator), are going to face some headline-grabbing breach of fiduciary litigation.
Conservatorship is a complex process which involves the removal of certain fundamental rights from an individual who cannot exercise them. Conservatorship does not involve the removal of all of an individual’s rights. Recognizing the complexity of the conservatorship process, California has published a 300-page document providing guidance to conservators defining their responsibilities and the limits of their powers.ii Ms. Spears’ conservators, Jamie Spears and Jodi Montgomery, both had access to this information and attorneys to advise them, and they both appear to have exceeded their authorities.
Possible Multiple Violations of Britney Spears’ Fundamental Rights
1. Forced medication.
Britney Spears testified that she was required to take psychotropic medications under the conservatorship. California law recognizes several types of conservatorships. A Probate General Conservatorship is designed for individuals who cannot handle their own finances or care for themselves. By contrast, a Lanterman-Petris-Short (LPS) Conservatorship is designed for individuals who cannot care for themselves due to a mental disorder or alcoholism and who will not agree to an arrangement or voluntary treatment. General Conservatorships do not provide for forced medical treatment whereas LPS Conservatorship do. Ms. Spears was under a Probate Conservatorship, not a LPS Conservatorship, and her Conservator of the Person, Ms. Montgomery, may have overstepped her authority in medicating Ms. Spears against Ms. Spears will.
Like in California, Georgia also has different procedures governing medical treatment of a ward. A Probate Court can remove the Ward’s right to consent to medical treatment, but the Court does not remove the right for the Ward to refuse treatment. Forced medication is available under Georgia’s mental health code, which provides for the involuntary treatment of someone who is a danger to herself or others.
2. Forced Use of an IUD.
Technically, the use of an IUD is not forced sterilization because the process is reversable. Yet, the ability to procreate is a fundamental right protected by the US Constitution and is only removed under the direst of circumstances.iii Indeed, California currently is paying restitution to developmentally disabled individuals who were forcefully sterilized under a prior statute.iv
Unlike sterilization, the use of birth control remains a fuzzy area of the law because it is reversible.v In at least one California case, the individual with a disability challenged the use of birth control because the means of birth control made her ill. Her mother/conservator of the person petitioned the Court for forced sterilization of her daughter to stop the severe migraines that her daughter suffered. With the advocacy of her attorney, the disabled individual found an acceptable form of birth control that controlled her symptoms, and she agreed to take the prescribed medication.vi The conservator should always turn to the least restrictive means to obtain a goal (i.e., the use of a pill versus a hysterectomy).
I certainly would argue that, even if the use of an IUD is not considered sterilization, it is the infliction of unwanted medical treatment on a ward in violation of that ward’s rights. This issue of requiring wards to use of birth control does not appear to have been argued by the United States Supreme Court, but it appears to be one ripe for consideration.
3. Restriction on visitation.
No, no, no. Our freedom of association is a fundamental right guaranteed by the First Amendment of the United States Constitution. Unless a court or statute deems otherwise, adults have the right to visit with anyone we choose at any time of our choice. This right to visitation is not changed by guardianship or someone’s admission to a facility (except in criminal matters). Indeed, Georgia is one of several states that have residents bill of rights guaranteeing the right of a resident in a nursing home or other residential facility to visit with anyone of their choosing. Sometimes, a conservator will need to seek a restraining order against an abusive individual or ask a court to create supervised visitation where there are other concerns for the ward’s safety. Absent a court order, a ward gets to visit with her family and friends regardless of whether the conservator approves. In Georgia, a conservator or guardian who limits visitation is likely to face Court sanctions, including removal as conservator or guardian.
4. Financial exploitation.
Conservators of property are entitled to payment set forth in a statutory scheme. In Georgia, the amount of payment is calculated as a percentage of funds going in and out of the conservatorship. I generally support my conservators taking their statutory fees, especially during the first year when establishing conservatorship accounts requires a considerable amount of time and effort.
While conservators can get compensated for the work performed on behalf of the ward, conservators are not supposed to engage in self-dealing. It appears in this case that Jamie Spears collected portions of his daughter’s touring revenue, which, if not previously approved by the Court, would create a direct conflict of interest with his ward. Indeed, Ms. Spears testified that her father required that she work even when she did not feel well so that he could get a cut of her revenue. Jamie Spears’ financial interest in his ward’s economic activity appears to violate provisions of the California Code, and the Conservator Handbook specifically cautions against this practice. P. 5-74.
Forbes published an article about Jamie Spears expenses as conservator, meaning that Jamie Spears appears to have notified the Court of his monthly compensation from his ward’s estate ($16,000 each month) and of other expenses.vii Ms. Spears should have had an opportunity to review and challenge each filing, though whether she saw the filings and whether her court-appointed attorney would act on her behalf are separate questions.viii
What can we expect next in the Britney Spears saga?
If I gambled in Las Vegas, I would place a large sum of money on the now independent Ms. Spears suing her conservator of the property, Jamie Spears, and conservator of the person, Jodi Montgomery, for breach of fiduciary duty. A guardian or conservator owes a duty of loyalty and care to the individual in his protection. Here, one or both conservators appeared to have violated the trust placed in them by the Court. They improperly medicated Ms. Spears, interfered with her fundamental rights to have a family, and prevented her from exercising her freedom of association.ix Jamie Spears appears to have improperly benefited from his daughter’s business.
Although one or both conservators appeared to have abused their powers, the question remains whether they can be held liable for activity if the Court approved the conservator’s actions. For example, the Los Angeles Superior Court appears to have approved Jamie Spears’ monthly income of $16,000. If indeed this amount is deemed excessive, can he be held liable and/or forced to return this money because the Court approved it? Assuming that the Court indeed approved an excessive amount of income to the Conservator, did the Court facilitate possible financial exploitation of Ms. Spears, and what compensation can Ms. Spears receive for the Court’s contribution to her abuse?
Someone asked me earlier today whether we should treat Ms. Spears’ journey through conservatorship as the adventure of a celebrity or whether it had meaning to the population generally. Celebrities suffer the same abuses that I see in matters that do not involve celebrities; they just have a bigger platform that allows the general public to see some of the challenges that they face. Understand, celebrities will only show the public the part of the picture that they want us to see, and I am generally reluctant to pass judgment on a matter since I do not have access to all of the facts. However, their spotlight shines on issues and challenges faced by people with a cognitive impairment or other disability and on the people who are trying to care for them.
If you have any questions about the responsibilities of a guardian and conservators and the rights of the ward under Georgia law, please contact the office of Weinberg Elder Law, LLC, 404-969-5648.
iGeorgia and California use the terms guardian and conservator differently. In Georgia, an individual who is appointed to act on behalf of the ward with respect to personal rights is called a guardian. Likewise, an individual who is appointed to act on behalf of a ward with respect to financial matters is a conservator. In California, by contrast, the courts appoint a Conservator of the person and a Conservator of the property for wards who are over age 18. Guardians are appointed for minors.
iiiConservatorship of Valerie N., Case no. 24745 (Ca. S.Ct. 1985).
viDenise B. v. Maria B., Case no. G047889 (Ca. Ct. App. 2013).
viiiMs. Spears long contended that her court-appointed attorney did not act on her behalf, and she eventually won the right to hire her own attorney in July 2021.https://www.npr.org/2021/07/15/1016378951/britney-spears-new-lawyer-mathew-rosengart
ixMs. Montgomery claims that Jamie Spears interfered with her role as Britney Spears’s conservator of the person, implying that Jamie Spears committed the multiple violations of his ward’s rights. https://www.foxla.com/news/britney-spears-fiery-conservatorship-battle-against-her-father-just-wrapped-a-new-court-hearing I suspect that much time of any court battle will involve finger-pointing between Jamie Spears and Jodi Montgomery as to who took what action or inaction to protect the rights of Britney Spears.