Amid the #FreeBritney movement and heightened media attention on Britney Spears and her current conservatorship situation, there has been increased public interest in conservatorships and their complexities.
As attorneys who regularly represent clients in conservatorship matters and a forensic psychiatrist who evaluates individuals whose capacities are at issue, we discuss here some questions commonly raised in connection with conservatorships. We should note that since we are not involved in the Britney Spears case and thus do not have access to court-sealed documents, we cannot comment or opine about that case specifically.
For guidance in working with clients, the following are some questions that commonly arise with respect to conservatorship.
What is a conservator?
A conservator is a court-appointed individual who is responsible for making financial decisions on behalf of an incapacitated individual, often referred to as the “protected person.” Such an appointment may be necessitated when an individual lacks mental capacity to manage his or her own financial affairs due to mental illness, cognitive impairment, a substance use disorder, or any variety of compromising conditions that impact a person’s competence to make meaningful financial decisions.
What is an attorney’s role in conservatorship?
Attorneys frequently act as conservators for individuals who are unable to manage their personal assets or business affairs. In this way, attorneys can assist individuals in managing their financial affairs at a time when they may need temporary or permanent assistance, and in a manner that provides extra protection, accountability and oversight. Lawyers also represent the parties in disputes over conservatorship, as in the case of Britney Spears.
Is it usually older adults who need conservatorships?
While many conservatorships involve older adults, questions of capacity can arise at any age. Thus, it is not uncommon for a conservatorship to be sought for a young person such as Britney Spears, who rose to prominence as a teenage pop star, finding worldwide success and notoriety. She subsequently found herself at the forefront of highly publicized personal and health struggles.
For the past 13 years, beginning at the age of 26, she has been under a conservatorship. Since the establishment of her conservatorship, she has released four record albums, headlined a global tour and performed for four years in a Las Vegas venue. All the while, her conservators and advisors, including her father, have controlled her business and financial affairs.
What part do the courts play in conservatorship?
The court acts as overseer of the acts and transactions of the conservator. Such oversight includes, among other things, reviewing annual accounts and monitoring status through court hearings involving the conservator, the protected person and others acting on the latter’s behalf, which may include an attorney or family members.
In Britney Spears’ situation, which has garnered newfound interest due to recent court hearings, her family has been divided by money and fame and by the appropriate supervision and control of her business and financial affairs.
In addition, she herself has crusaded against her conservatorship appointment, alleging that those in control of her affairs have mismanaged her assets and exploited her, and unduly restricted her basic and fundamental freedoms and privacy rights. Such disputes are not unusual.
How are such disputes best resolved — or avoided in the first place?
Decisions about conservatorship are often best made with the help of a forensic psychiatric evaluation focused on the areas for which conservatorship is being sought or considered. An evaluator may be retained by either party or by the court.
How can a forensic psychiatric evaluation be helpful in conservatorship decisions?
Factors affecting competence to make decisions for oneself can involve complex, neuropsychiatrically based dynamics.
For one thing, competence is task-specific. For example, a person may be competent to make his or her own medical decisions, but not to manage finances, or vice versa.
Second, competence is affected by affective factors. That is, how a person feels in a given situation can drive how the person processes information so as to make decisions. Given this emotional dimension, a person’s competence may fluctuate in different situations or in the context of the person’s relationships with different people. A relationship characterized by abuse or by a power imbalance can impair competence, while a supportive relationship can help maintain or restore competence. Thus, a forensic evaluator, while not acting as a treating clinician, can make recommendations as to creating a social context that can enhance a person’s decision-making capacity.
Finally, forensically reliable competence assessment requires recognition of subtle indicators not always evident to clinicians, attorneys or judges — for example, “when a patient [or examinee] demonstrates a capacity to articulate coherent sentences containing plausibly valid facts, even though there is severe impairment, through illness, of his or her underlying decision-making capacity.” (Gutheil TG, Bursztajn HJ, “Clinicians’ guidelines for assessing and presenting subtle forms of patient incompetence in legal settings, Am J Psychiatry, 1986)
How is a forensic psychiatric evaluation carried out?
The evaluator interviews the person, administers psychological testing, and reviews additional data. Depending on the individual case, those data may include medical and legal records, educational and employment records, previous evaluations and collateral interviews or witness statements.
Can a forensic psychiatric examination be conducted by video link rather than physically in person?
Yes. The COVID-19 pandemic greatly accelerated a trend already underway toward the use of video-linked psychiatric interviews for both clinical and forensic purposes. Among the advantages of such telepsychiatry is that the attorney is not limited to retaining a local evaluator, since travel expenses are not incurred. The expense saved and convenience gained are multiplied when more than one examination may be helpful.
Should a forensic psychiatric examination be video-recorded, as attorneys often request?
No. When an examination is recorded (whether by video or only by audio), the findings are foreseeably distorted by the effects of performance anxiety and impression management. Typically, the examinee feels constrained to say what is expected of him or her. Free and open disclosure instead requires one-to-one dialogue between examiner and examinee. For this reason, it is also not helpful for an attorney to be present, which too often turns the examination into a quasi-deposition.
Given the sensitive issues of personal autonomy and agency, as well as family relationships, that are at stake in both the consideration and implementation of conservatorship, it is important that people feel a sense of comfort and security during what can be an exceptionally trying and difficult time.
The process works best when a there is a relationship of trust among the conservator, the protected person and family members. To the extent that a forensic psychiatric evaluation can contribute to creating such a foundation, better decision-making both with respect to conservatorship and by the conservator will likely result.
Lisa M. Cukier is a partner, executive committee member and co-chair of the private client group at Burns & Levinson. Alex J. Harrington is an associate in the firm’s private client group. Dr. Harold J. Bursztajn practices clinical and forensic psychiatry and is a senior clinical faculty member at Harvard Medical School.