‘Framing Britney’ – Conservatorship v Deputyship
Following the recent televised documentary regarding Britney Spears, questions have been raised in the UK as to the benefits and pitfalls of acting for someone who lacks capacity to make decisions for themselves. The pop singer is currently in Court proceedings in America in an attempt to have her conservatorship removed which is an Order made by the Court permitting her father (formerly acting alongside a solicitor) to manage decisions relating to her finances, including control over her career and in respect of her health and treatment. Following the documentary, there has been criticism of the Court process in America and resulted in the ‘Free Britney’ movement gather momentum.
In this country, Deputyship is the equivalent to Conservatorship. There are two types of Deputyship Orders which can be made to appoint an individual(s) to act on behalf of a person who has been medically assessed as lacking mental capacity to manage their financial affairs or issues relating to personal welfare. In England and Wales, the issue of mental capacity is assessed under the Mental Capacity Act 2005 which provides for capacity to be decision-specific therefore, someone may have capacity to receive bank statements for example, but they may not have the capacity to effectively invest funds or take important financial decisions such as the payment debts or liabilities. Similarly, someone may take medication for a medical condition but be unable to understand the nature of their medical condition or why they need to take such medication.
Deputyship Orders allow the Court of Protection to appoint an appropriate person to act on behalf of an incapacitated person. Each proposed Deputy must complete a Deputy Declaration to confirm their suitability to act and there is a minimum of three people who must receive formal notification as to the nature of the application in order to objection to the application if there are concerns as to the identity of the proposed Deputy. A Deputy for financial affairs must complete an annual report setting out their financial management and have a security bond in place which acts as an insurance policy if they were to mismanage funds. The ultimate supervision of Deputies is made through the Office of the Public Guardian.
Deputyship Orders are made ‘subject to further Order’ which means that if the Order was made during a time in someone’s life when they suffered temporary mental incapacity as a result of a known medical condition, once they regain capacity, they can apply to have the Order set aside.
It is strongly implied in the documentary that Britney was suffering from post-natal depression at the time the Conservatorship was made but currently, the general public do not have a full picture as to what was disclosed to the Court to evidence the need for a Conservatorship in respect of Britney.
I can assure you that in this country, stringent evidence must be presented to the Court to substantiate the making of a Deputyship Order is in the best interests of the individual. Medical evidence forms part of the application and in respect of personal welfare applications, there is a high bar set for the making of such Orders. In any event, a Deputy owes the individual a duty of trust to act in their best interests and to include the individual in all decision making as far as they are able. If an individual regains capacity then such Orders can be set aside. It is therefore important that the proposed Deputy is someone whom the individual trusts (such as a family member or close friend) or an independent person such as a solicitor.
At Giles Wilson, we make application for Deputyship, offer advice to Deputies as to how they should act under Deputyship Orders and we also act as professional Deputies for a number of clients. If you have a loved one whom you think would benefit from Deputyship or you wish to obtain further advice then our Court of Protection Team would be happy to assist.