News outlets have been abuzz over the past year with hot takes on the situation in which Britney Spears found herself—often framed as her throwing off the shackles of conservatorship. The fact that such a legal scenario as conservatorship could even exist took many by surprise—particularly people in Britney’s generational cohort, who have little experience with conservatorships. Among the questions this has brought to our doorstep are, what on Earth is conservatorship? And can it happen to me? These questions tend to be laced with fear, but we want to make this clear from the outset: conservatorship can be a very appropriate situation for some people. We also want to emphasize that there are things you can do in advance in order to avoid having one applied to you.
Much of the language used in reporting the Britney Spears situation actually doesn’t directly translate to Virginia. Her conservatorship was formed under California law, which differs from Virginia law in a number of important ways. This is not to say there is no such thing as a “conservator” in Virginia. Rather, we have conservatorship on the one hand, in which someone is given the power to manage the financial affairs of an “incapacitated person”; and we have what is called “adult guardianship” on the other, in which someone other than the incapacitated person handles their daily affairs, making life and medical decisions on their behalf. California refers to both of these regimes as forms of “conservatorship”—so that many elements of Britney’s situation that have been referred to in the popular media as “conservatorship,” including many of the aspects that people find objectionable, would instead be considered “guardianship” here in Virginia.
In a future blog we will discuss further the difference between conservatorship and guardianship.
But for now, what’s important is that what a conservator is supposed to do in Virginia is take care of the assets belonging to an incapacitated person. There are legal protections in place—including that the conservator must make annual filings to the Commissioner of Accounts detailing the amounts of money both received and disbursed into the accounts of the incapacitated person. But conservators are permitted to take a fee out of the assets, so long as it is in an amount that the courts consider “reasonable.”
Conservatorship is a last resort. It takes away the right of a person to maintain their own financial affairs, and generally, courts will only impose it when they determine it to be truly necessary. Unlike in the Britney Spears situation, it is most often applied to people who become incapable of handling their affairs due to the onset of cognitive decline in their later years.
To avoid becoming subject to conservatorship, a person can think ahead and establish a durable general power of attorney, which describes how they would like their financial affairs managed. They must form this power of attorney while they are still considered legally capable of decision-making, however. So it’s a good idea for everyone to do this as they approach an age at which incapacitation becomes more probable, even if there are no signs that they are becoming incapacitated as yet.
We’re in no position to second-guess the judge who applied the California laws of conservatorship to Britney Spears, even from the perspective of Virginia law. Could Britney have formed a durable power of attorney before that happened? Technically, yes. But given her youth, it was not likely she would foresee being considered mentally incapable of managing her own financial affairs. Those among us who are reaching our twilight years, if we are truthful with ourselves, may recognize the increased possibility—and we have the power to prepare for it.
We Can Answer Your Conservatorship Questions
Attend one of Promise Law’s free estate planning workshops to learn how this all works. These workshops provide a great foundation of information that everyone needs to make sound planning decisions. Moreover, if you attend a workshop, you also get a complimentary one-on-one consultation with one of our attorneys.
