When I was a senior in high school in 1998 and “Baby One More Time” came out, I could have never imagined the effect that Britney Spears would have on my future professional life! Now that her story is burning up social media, conservatorships have been a hot topic in the news cycle. The circumstances of Spears’s own conservatorship represent a once-in-a-lifetime, extreme situation that is miles away from anything that I have seen in over fifteen years of conservatorship practice in California. Nonetheless, her case is creating tangible changes in conservatorship law. For instance, California has already explicitly changed the role of court appointed counsel for conservatees (like Britney) due to the failings of Britney’s appointed counsel, Samuel Ingham.
Now, there is a new bill (AB 1663) in the California State Legislature that proposes to further modify Conservatorship laws. In this article, I will analyze AB 1663 to see how it would change Conservatorship law and how it would affect the average Californian who seeks a conservatorship (or is subject to one). I want to apply my expertise doing Conservatorship work to the changes in law this bill proposes to see how they may affect Californians in their practical application.
As a reminder, a Conservatorship is a legal arrangement in which a Judge appoints a financial and/or medical agent (called a Conservator) to make decisions on behalf of a person with dementia or other disability (the Conservatee). If a person has mental capacity to execute estate planning (such as a Power Of Attorney or Trust), then a Conservatorship may not be necessary. What jarred people with the Britney Spears Conservatorship was that Britney Spears is so unlike the typical conserved person, because the vast majority are either adults with special needs (such as down syndrome) or older adults with dementia.
While it may be that Spears has some form of mental illness, many people suffer from mental illness and it remains the case that a Conservatorship is not a particularly good tool to assist them with their day to day life. Additionally, the Conservatorship was seemingly weaponized by Spears’ dad to maximize profit off of the back of Britney (independent of what Britney wanted). Although this does not seem applicable to literally any other Conservatorship I have ever dealt with, it does raise issues of Conservatorship abuse and new laws are thus being considered to deal with that.
AB 1663’s web page contains a summary of the proposed changes, and then lists the actual proposed changes to the probate code. The Summary is as follows:
“Existing law, the Guardianship-Conservatorship Law, generally establishes the standards and procedures for the appointment of, and termination of an appointment for, a guardian or conservator of a person, an estate, or both. Under existing law, a court may appoint the Director of Developmental Services as guardian or conservator of the person and estate or person or estate of a developmentally disabled person, and in which case a specified order of preferences for deciding between equally qualified prospective conservators does not apply. Existing law authorizes the director to have these conservatorship duties performed through a regional center, or an agency or individual designated by the regional center, as specified.
This bill would revise various procedures in the conservatorship process. Among other provisions, the bill would provide that, when equally qualified as other potential conservators, the Director of Developmental Services would be appointed subject to the existing order of preference. The bill would prohibit a regional center from acting as a guardian or conservator if the regional center also provides service coordination activities pursuant to specified existing law. The bill would only permit the appointment of the director or regional center as conservator if the proposed conservatee has not chosen another qualified person, as specified. The bill would require a petition for a general conservatorship of a person with a developmental disability to indicate why a limited conservatorship does not meet the needs of the proposed conservatee. The bill would require the court to provide conservatees with written information regarding their rights and options, including a personalized list of the rights the conservatee retains. The bill would expand the annual duties and reporting requirements of court investigators conducting required visits to assess the progress of the conservatorship. The bill would revise the procedures for termination of a limited conservatorships by requiring the court to terminate an uncontested petition for termination under specified circumstances, and without a hearing.
The bill would require the Judicial Council to establish a conservatorship diversion program in each superior court. Among other goals, the diversion program would seek less restrictive alternatives and protect the rights of individuals in conservatorships. The bill would designate the duties of court staff reviewing conservatorship cases under the diversion program.
The bill would establish a supported decisionmaking process for adults with disabilities. The bill would define “supported decisionmaking” as an individualized arrangement in which an adult with a disability chooses one or more trusted supporters to help them understand, make, communicate, implement, or act on, their own choices. The bill would authorize an adult with a disability to request and have present one or more adults, including supporters, in any meeting or communication. The bill would set forth the duties of supporters. The supportive decisionmaking agreement would be informal or memorialized in writing, and the bill would specify the elements of a written agreement. The bill would provide that a supported decisionmaking agreement may be terminated by the adult with a disability, by all supporters, or by the terms of the agreement. The agreement would also be terminated with respect to any supporter who is found liable for specified offenses with respect to the adult with a disability.
I’ll go through each part of the summary to analyze the proposed changes.
1. GOVERNMENT ENTITIES AS CONSERVATOR
The first section relates to entities acting as Conservator, which is extremely rare. This portion states:
“Among other provisions, the bill would provide that, when equally qualified as other potential conservators, the Director of Developmental Services would be appointed subject to the existing order of preference. The bill would prohibit a regional center from acting as a guardian or conservator if the regional center also provides service coordination activities pursuant to specified existing law. The bill would only permit the appointment of the director or regional center as conservator if the proposed conservatee has not chosen another qualified person, as specified. ”
This relates to the order of priority for the Court to appoint a Conservator per CPC 1812. If the Conservatee cannot provide guidance to the Court as to who they want and if there are competing petitions, then priority helps the Court determine who to appoint. Under this section, the Court is to provide priority to certain family members before government entities.
This new change helps the DDS obtain better priority in regards to who should be appointed as Conservator. This would only be relevant in instances where no family member wants to help out the Conservatee. In my career, I have only seen one case in which the DDS got involved as a Conservator. This does not seem like a common occurrence, so this change does not seem major.
Regarding the regional center, regional centers are government offices designed to help people with special needs. A Limited Conservatorship is a Conservatorship specifically designed for adults with special needs. It appoints an agent to make limited medical and financial decisions for said person. The regional center provides an investigation and makes a recommendation. This change relates to the regional center potentially acting as Conservator. I have never experienced a situation where the regional center has wanted to act or is acting as Conservator. This does not strike me as a major change.
2. LIMITED CONSERVATORSHIP VERSUS GENERAL CONSERVATORSHIP
This section relates to the difference between general Conservatorships (similar to the one Britney Spears was involved with) and limited Conservatorships (for people with special needs). It states:
“The bill would require a petition for a general conservatorship of a person with a developmental disability to indicate why a limited conservatorship does not meet the needs of the proposed conservatee.”
As the names may indicate, the authority granted for a Conservatorship can be substantially higher than the authority granted for a limited Conservatorship. If a person is seeking a general Conservatorship for a person with special needs in lieu of a limited Conservatorship, then the Petitioner just has to tell the Court why. Seems like an extremely reasonable change. As is a theme amongst these changes, almost all petitioners seeking Conservatorships over adults with special needs seek limited Conservatorships. So, this does not seem as if it will provide significant change.
3. INCREASED INFORMATION
The next portion relates to increased information that could be gleamed to help the Court and the parties before it. It states:
“The bill would require the court to provide conservatees with written information regarding their rights and options, including a personalized list of the rights the conservatee retains.”
This portion requires additional forms, information, and investigation in these Conservatorship matters. It states that the Conservatees must be given information regarding what a Conservatorship will do for them. Certainly nobody could object to increased information. There already is a form, however, called Notice Of Conservatee’s Rights. This form has to be provided to the Conservatee and includes rights and options and a personalized list of the rights the Conservatee retains.
In looking at the specific code itself, the updated language requires this form to now state:
(8) Procedures to petition to terminate or modify the conservatorship.
(9) The conservator’s obligation to support the conservatee to maximize their autonomy, support and respect their preferences, use supported decisionmaking as far as possible, and support their development and learning to obviate the need for conservatorship.
This is clearly created to assist Britney Spears, who claimed to not be aware that she could not terminate her Conservatorship. Now, this Notice Of Conservatee’s Rights will tell Conservatees how to terminate their Conservatorship and that their Conservator should respect their autonomy to the extent possible.
It should be noted that although the Spears Conservatorship was established in 2007 and pursuant to California Probate Code 1835, this requirement for the Notice Of Conservatee’s Rights was originally established in 2005. Therefore, Britney should have received notice, and the changes proposed by AB 1663 would further help her potentially understand her situation and options available to her.
This section also includes changes to the responsibilities of Court Investigators. It states:
“The bill would expand the annual duties and reporting requirements of court investigators conducting required visits to assess the progress of the conservatorship.”
A Court Investigator is a neutral Court employee who is supposed to do an investigation to determine the appropriateness of the Conservatorship. They often do follow up investigations on other issues during the pendency of the Conservatorship. In Britney’s case, the Court Investigator was raising issues relating to the Conservatorship years prior to the termination.
But now, confidential court records obtained by The New York Times reveal that Ms. Spears, 39, expressed serious opposition to the conservatorship earlier and more often than had previously been known, and said that it restricted everything from whom she dated to the color of her kitchen cabinets.
“She articulated she feels the conservatorship has become an oppressive and controlling tool against her,” a court investigator wrote in a 2016 report. The system had “too much control,” Ms. Spears said, according to the investigator’s account of the conversation. “Too, too much!”
In theory, increased investigations is a prudent decision. In reality, the Court Investigator offices are often underfunded and understaffed. It can be tough to find a balance between requiring additional investigations and the offices having the resources available to actually do what is required of them. If the legislature wants the Court Investigator Offices to do additional investigations, it would be smart to increase their funding to help ensure these additional investigations go smoothly.
“The bill would revise the procedures for termination of a limited conservatorships by requiring the court to terminate an uncontested petition for termination under specified circumstances, and without a hearing.”
This is designed to help minimize Limited Conservatorships that are not necessary and minimize Court resources to handle uncontested terminations. Under the new CPC 1860.5, a limited Conservatorship where “both the limited conservator and limited conservatee wish to terminate the limited conservatorship, and the conservatorship is no longer the least restrictive alternative for the limited conservatee’s protection,” the Court can terminate the limited Conservatorship without a Court hearing.
Minimizing the need for Court hearings can be a prudent thing as the Courts are overloaded with hearings at the present time. This can push hearing dates out for contested matters or hearings that genuinely need Court focus. It is extremely rare however that a party is seeking to terminate a limited Conservatorship. In my career, I cannot think of a single instance of a limited Conservatorship being terminated. So, this change could be helpful but does not have significant practical application.
4. DIVERSION PROGRAM
The next section relates to attempts to minimize Conservatorships by diverting people out of the probate Court. It states:
“The bill would require the Judicial Council to establish a conservatorship diversion program in each superior court. Among other goals, the diversion program would seek less restrictive alternatives and protect the rights of individuals in conservatorships. The bill would designate the duties of court staff reviewing conservatorship cases under the diversion program.”
This is a brand new program (established under a new CPC 1836) that has Court staff investigating Conservatorships to determine where there may be a less restrictive alternative. Here are the responsibilities of Court staff:
“(1) To identify existing conservatorships and petitions for conservatorship where less-restrictive alternatives, including, but not limited to, supported decisionmaking, could be used to avoid the conservatorship.
(2) To educate parties in conservatorship proceedings and people already in conservatorships, on less-restrictive alternatives to conservatorship that may be appropriate, and to provide assistance and guidance in considering and implementing those alternatives.
(3) To reduce the number of people who lose their rights under conservatorships.”
Again, theoretically, this is an extremely appropriate approach. Court staff helping determine alternative options for Conservatorship and working with parties to seek those alternatives makes perfect sense. In reality, Court staff is overloaded with responsibilities. If the legislature wants to increase Court staff responsibilities, the legislature should provide additional funding to assist with these issues.
It is important to understand the options to Conservatorship. There is only really one: An estate plan. If a person has a Health Care Directive or a Power Of Attorney or a Trust, that can help avoid a Conservatorship. The best way to avoid a Conservatorship is to establish an estate plan.
5. SUPPORTED DECISIONMAKING
Here, the bill raises something that it discusses called supported decisionmaking. This is in the summary:
“The bill would establish a supported decisionmaking process for adults with disabilities. The bill would define “supported decisionmaking” as an individualized arrangement in which an adult with a disability chooses one or more trusted supporters to help them understand, make, communicate, implement, or act on, their own choices. The bill would authorize an adult with a disability to request and have present one or more adults, including supporters, in any meeting or communication. The bill would set forth the duties of supporters. The supportive decisionmaking agreement would be informal or memorialized in writing, and the bill would specify the elements of a written agreement. The bill would provide that a supported decisionmaking agreement may be terminated by the adult with a disability, by all supporters, or by the terms of the agreement. The agreement would also be terminated with respect to any supporter who is found liable for specified offenses with respect to the adult with a disability.”
In my view, this is an amorphous concept that is unclear as to whether it would help elders. If an elder has capacity to make decisions, they should execute an estate plan. If an elder does not have capacity to make decisions, a Conservatorship can be established.
This bill adds a whole, massive section to the Probate Code about Supported Decisionmaking. This is new in California. Supported Decisionmaking appears to be a situation where the parties enter into an agreement or contract to assist the elder in making decisions. The new CPC 3951 defines Supported Decisionmaking as follows:
“(c) “Supported decisionmaking” means an individualized arrangement in which an adult with a disability chooses one or more people they trust as supporters to help them understand, make, communicate, implement, or act on, their own choices. Supported decisionmaking recognizes and accepts the preferences of the adult with a disability, as expressed with the supports and supporters they choose.”
This seems innocuous enough, but how it would play out in reality? If a person files for Conservatorship over their parent, the parent could state that they do not lack capacity and do not need a Conservatorship. If true, then the parent could execute estate planning to appoint medical and financial agents to assist them if they do lose capacity. While the parent retains capacity, they can manage everything.
Perhaps Supported Decisionmaking can underpin the estate planning and be an agreement wherein the named agents can assist the parent while the parent still has capacity to make decisions. However, this does not change the current circumstances wherein the estate planning is an alternative to Conservatorship.
Of course, there is always the issues of undue influence where Supported Decisionmaking could be used as a cudgel to fight a reasonable Conservatorship. For example, I currently have a Conservatorship where dad has been kidnapped by a family member and isolated from other family members. Dad, under the influence of the family member, is refusing to see his other family members and actively fighting the Conservatorship. This is an extreme circumstance, but I do see Supported Decisionmaking being used as a means in which to fight reasonable Conservatorships by bad actor children. However, I deal with so many undue influence litigation cases that I may have a skewed perspective on this.
CONCLUSION
Californians will likely be feeling the seismic effects of the Spears Conservatorship for years to come. There has already been some changes made, and now there are more proposed changes on the horizon. Additional changes may come after that. Most of these changes appear designed to help educate Conservatees, terminate uncontested Conservatorships (rare), and seek alternatives to Conservatorship. None of these proposed changes are objectionable and many of them could help people. Practically speaking, however, how will these changes affect the average Californian and how many can be implemented effectively given the current funding shortages in the courts?
We will see how this all plays out. I will continue to analyze potential changes to Conservatorship law to see how this could affect you, the reader.
I regularly consult on Conservatorship matters in California, in addition to representing Conservators, Conservatees, and related parties. For more information, or to schedule a consult, contact our law firm at 925-322-1795.