The Britney Spears case – What is a conservatorship and could it happen in the UK?
Britney Spears’s ongoing legal battle against her father for control of her own affairs has brought the pop star back into the headlines. Fans have rallied behind the singer with the hashtag #freebritney. As the court case continues, questions have been raised as to what a conservatorship is and whether this could happen in the UK.
A conservatorship in California is an arrangement whereby a judge appoints a person or organisation to care for the affairs of someone who is not able to look after themselves. The closest equivalent in England and Wales would be a deputyship.
In England and Wales when someone is unable to look after their own affairs it is possible to apply to the Court of Protection for a deputyship order. In order for the Court of Protection to appoint a deputy they need to be satisfied that the person has lost the capacity to make decisions in accordance with the Mental Capacity Act 2005. Someone can be appointed a deputy for both property and financial affairs and personal welfare (although the latter is less common).
In making a decision as to whether to make a deputyship order, the Court of Protection must consider whether this is in the person’s best interest. Any deputy appointed must act within five principles which are set out in law, including the principle that a person should not be considered unable to make a decision just because they have made an unwise decision. A deputy may be appointed for a single decision or to act on an ongoing basis.
The Court of Protection is able to grant the deputy various powers, depending on the needs of the person, but generally once appointed a finance deputy may be granted powers to manage the person’s affairs, including access to bank accounts, investing assets and selling property.
A deputy appointed by the Court of Protection has a duty to act in good faith, act with care and skill and a fiduciary duty to not profit from the position. An application must be made to the Court of Protection for any transaction where there is a potential conflict of interest for the deputy. A deputy has no authority to make gifts, beyond the usual gifts the person may have made on occasions such as birthdays or Christmas. A deputy also would not have authority to change the person’s Will and would have to make a separate application to the Court of Protection to enter into any kind of decision which may be controversial or may provide another party with a benefit.
A deputy is subject to supervision by the Court of Protection and the Office of the Public Guardian, with the level of supervision dependent on the value and complexity of the person’s finances. The deputy must report to the Office of the Public Guardian on an annual basis with information of the person’s finances, major decisions made, details of expenditure and information on whether the person’s mental capacity has changed. The deputy must keep proper accounts and will be subject to visits from the Court.
In addition, any deputy appointed must also take out a security bond which acts as a form of insurance to protect the person’s assets from any mismanagement or inappropriate actions by the deputy.
If the person recovers mental capacity then the deputy is obliged to report this to the Court of Protection to have their appointment terminated, with accompanying evidence from a medical professional.
The role of a deputy in England and Wales is therefore closely monitored and any mismanagement or inappropriate dealings should be swiftly identified. In addition, as the mental capacity of the person is under regular review, if they regain the ability to manage their affairs effectively then this should be identified and the deputyship terminated.
While there are clear systems in place in England and Wales to ensure that there are no inappropriate deputyship appointments, the simplest way to ensure that you would not be subject to a deputyship order is to enter into a Lasting Power of Attorney (LPA). A deputyship order will only be made where an appropriate appointment of attorney has not already been made when the person had capacity. Under an LPA you can appoint an attorney with the ability to act in relation to both your property and financial affairs and health and welfare should you lose capacity. You may also enter preferences and instructions as to how you would like your attorney to act, including decisions about end of life care. Entering into an LPA while you have capacity therefore gives you control as to who is appointed and helps to ensure that your wishes are met.
If you have any queries about Lasting Powers of Attorney or deputyship orders, please contact Caroline Doyle.