In yet another set of headlines involving a conservatorship, Hank Williams, Jr.’s son, Sam Williams, has posted on social media that his family has placed him in a conservatorship, starting in August 2020, which he wants to end.[1] Apparently, this conservatorship was opened to protect Sam while grieving after the death of Sam’s sister in a car accident.
Of course, almost everyone has heard about the “Free Britney” movement seeking to end a years’ long conservatorship over Britney Spears. Following a public mental health crisis in 2008, Britney Spears’ father was named as her conservator. She was released from this conservatorship in 2021.[2] Britney now alleges that her father, Jamie Spears, enriched himself by over $6 million during the conservatorship, which appears to be one of the issues in a pending trial involving a lawsuit by Britney against her father.[3] The cases of Sam Williams and Britney Spears are not the only celebrity conservatorships to make the news.[4]
Beyond celebrity conservatorships, the recent Netflix movie “I Care a Lot” centered on a system of commercial guardians. In the film, a paid commercial guardian exploits both the court system and allegedly incapacitated individuals for personal gain. In the wake of that film, plenty has been written about the accuracy of its portrayal.[5] Regardless of whether the abuse shown in the film is pervasive, the potential situation it highlights certainly is concerning. Combined with the recent headlines of celebrity conservatorships, recent media surrounding conservatorships and guardianships may give many people cause to wonder what a conservatorship or guardianship really is, what rights do persons under guardianship or conservatorship have, what rights does the conservator or guardian have over such person and their assets, etc.
Having somewhat recently served as a member of the Mississippi Commission on Guardianships and Conservatorships[6], I have had occasion to study these issues. This commission resulted in passage of the GAP Act in Mississippi to update the state’s conservatorship and guardianship laws.[7]
What is a Conservatorship or Guardianship?[8]
Initially, it is important to note that conservatorship and guardianship law varies greatly from state-to-state. Therefore, any discussion about these arrangements here will only be general in nature. In any particular circumstance, the relevant state’s laws would need to be carefully considered rather than relying on more general discussions. However, understanding the basic concepts hopefully gives a better understanding of these arrangements.
In discussing these relationships, terminology may be important. As stated above, terminology is different from state to state. Also, even within a state, terms may be used differently among practitioners and courts based on common practice or other norms. That said, there primarily are two areas where a principal would act for a person as their guardian or conservator – over the person and over the estate (or assets). The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act[9] (“UGCOPAA”) defines a guardianship as one over the person and a conservatorship as one over the person’s property or financial affairs. A conservatorship or guardianship may be full, meaning that the conservator or guardian has complete control, or limited, where the conservator or guardian only has powers specifically granted by the court. It is worth noting that the UGCOPAA has only been fully enacted in two states, Washington and Maine, and partially in five states, Iowa, Mississippi, Nevada, New Mexico, and South Carolina.[10] However, while the UGCOPAA is broader in scope and makes important changes to historic practices, the concepts can be a good guide to understanding conservatorships and guardianships more generally relevant to other states as well.
Regardless of whether a person is under a conservatorship, guardianship, or both, courts exercise care in appointing someone appropriate and, after such person is appointed, exercise oversight. In commencing any conservatorship or guardianship, courts typically look to persons who the proposed ward (the person under conservatorship or guardianship) would have selected for themselves as may be evidenced in powers of attorney or other documents.[11] When there is no one named in any such document, or those named cannot serve, courts will hear the proposals of an individual’s family and close friends. Typically, only in the absence of any family or friend to serve, or upon a dispute among the members of those groups, would an independent person be named. As part of this process, notice would have to be given to the proposed ward and certain other individuals with a right to appear at a hearing to determine whether the basis for appointment is satisfied[12] and, if so, to appoint a conservator or guardian.[13]
Once a conservator or guardian is appointed, the court exercises oversight. This oversight commences with a proposed guardianship or conservatorship plan[14] and continues with annual reporting[15] which is subject to court review. These filings typically must be provided to other persons, such as family members, of the ward in addition to being filed with the court.[16] Should there be reason to remove a conservator or guardian, the ward or persons with an interest in the care of the ward may petition a court to remove the conservator or guardian by either removing the person serving and appointing a successor or completely terminating the arrangement.[17]
As a result of the processes in place to protect the rights and interests of the person under conservatorship or guardianship, including the requirement to provide notice to others interested in their care and wellbeing, the hope is that the conservator or guardian has limited opportunity for personal enrichment or to abuse the person under their care. However, not everyone under a guardianship or conservatorship has others who take an active role in holding the conservator or guardian accountable. Courts have limited time and resources to independently verify the reporting submitted for approval. While some states have made robust use of guardians ad litem to provide a court appointed person to hold the conservator or guardian accountable, that is not the case everywhere. A struggle states have in passing conservatorship or guardianship statutes and courts have in administering these arrangements is how best to balance protection of then individual subject to the arrangement with the practical realities associated with administration such as costs, available resources, etc. Certainly, guardianship and conservatorship laws are not without their detractors.[18]
What Can You Do to Protect Yourself?
While most of us hope the relevant state statutes are protective of our rights should we find ourselves under a conservatorship or guardianship, that does not mean we may not want to take steps to protect ourselves. Certainly, courts are there to protect our rights and oversee the actions of a conservator or guardian. However, as stated above, courts also have limited time and resources to police those actions. As such, individuals would be advised to exercise at least some level of planning.
The primary step we all can take is to have a validly executed durable power of attorney for our financial affairs as well as a health care power of attorney. Through those instruments, we can identify whom we would want to make decisions for us should that be appropriate without our families, friends, and courts making the decision for us. Likewise, in any such document, it is possible to be specific about certain financial or health care preferences to inform the actions that may be taken. It is possible that, with such properly executed documents, a court administered arrangement may be avoided altogether. When that happens, the agent under those powers of attorney acts without the supervision of a court. However, should a court need to be involved, they may be able to do so to assist in administration of the power of attorney (such as to remove/replace the agent, enforce terms, etc.) without the need for a conservatorship or guardianship.
A step likely more protective for management of assets than a power of attorney would be funding a revocable trust with assets. While living and capable of acting, each of us would typically serve as our own trustee with full authority to manage assets as well as to amend or revoke the trust. Then, when we need the assistance of another in management of our assets, the successor trustee we have selected can step in and manage the assets of the trust. This successor trustee would be accountable to us and our remainder beneficiaries (typically those who take our assets at death) under broad fiduciary duties. A revocable trust provides a more fully developed manner in which to hold and manage assets, a plan for trustee succession, and statutory mechanisms to handle most issues that should arise. While the revocable trust is being administered, it can be handled outside of court unless any dispute requiring court intervention arises. Therefore, administration is typically less expensive, more flexible, and more private, than through a conservatorship or guardianship. Furthermore, third parties, especially financial instructions, tend to be more open to working with the trustee of a revocable trust than an agent under a durable power of attorney. As a result, revocable trusts can be more beneficial for anyone needing assistance in the management of their assets than relying upon a financial power of attorney.
Beyond that step, we all can be sure that we keep our close friends and families informed about our intentions. Everyone has their own comfort level about how much they inform others about their private affairs. Within that context, to the extent close friends and family can understand what each of us desire for our own care, whom we want involved, the nature of our assets, our health histories, and similar information, the more armed those around us can be in proactively assisting with our care and overseeing those given legal authority to act on our behalf.
Of course, no discussion like this will be complete. There are any number of other steps that one may take to protect their interests in the event someone else was in charge of caring for them and their assets. However, the steps above are certain concrete options to take matters into our own hands in determine who and how this will be done.
Conclusion
Although there have been recent headlines and media postings about the potential for abusive conservatorships and guardianships, the law generally seeks to protect those under such arrangements. However, there is a limit to what statutes and courts can do (and traditionally have done in any event). Often, the first line of defense is proactive friends and family members who become involved in holding the conservator or guardian accountable. In that situation, disputes often arise as to what is best for the person under the conservatorship or guardianship. When each person involved is acting reasonably and with care for the ward, those disputes typically can be resolved.
Each of us, at least to some extent, can take matters into our own hands. There are options for deciding for ourselves how our affairs would be managed, and by whom, should we need that level of assistance. Proper legal representation can assist in making sure those options are considered and utilized as appropriate.
[1] Watts, Cindy, “Sam Williams Claims Hank Williams Jr. Placed Him in a Conservatorship – He Wants Out,” Feb. 5, 2022, http://www.cmt.com/news/1840977/watch-sam-williams-claims-hank-williams-jr-placed-him-in-a-conservatorship-he-wants-out/#:~:text=Sam%20Williams%2C%20the%20youngest%20son,handwritten%20in%20big%20red%20letters; and “I WANT OUT OF CONSERVATORSHIP!!! Claims Dad, Hank Williams, Jr. Put Him In It,” Feb. 5, 2022, https://www.tmz.com/2022/02/05/hank-williams-jr-son-sam-williams-conservatorship-wants-out/.
[2] “Britney Spears Free from Conservatorship, Judge Rules,” Nov. 12, 2021, https://www.nbcnews.com/pop-culture/pop-culture-news/prewrite-britney-spears-conservatorship-termination-hearing-rcna4481.
[3] Dillon, Nancy, “Britney Spears Gets Full Fortune Back, Heads to Trial Against Dad,” Jan. 19, 2022, https://www.rollingstone.com/music/music-news/britney-spears-conservatorship-battle-father-trial-1287263/; and Diana Dasrath and Chantal Da Silva, “Britney Spears Says Father Took Millions During Conservatorship,” Jan. 19, 2022, https://www.nbcnews.com/news/britney-spears-says-father-took-millions-conservatorship-rcna12694.
[4] “5 Celebrities Who Have Had Conservatorships like Britney Spears,” July 25, 2021, https://vt.co/entertainment/celebrity/5-celebrities-who-have-had-conservatorships-like-britney-spears; and “8 Celebrities Who Live Under a Conservatorship,” July 6, 2021, https://finance.alot.com/personal-finance/8-celebrities-who-live-under-a-conservatorship–19199.
[5] English, David M. and Nina A. Kohn, “Netflix’ ‘I Care a Lot’ Should Worry You,” Feb. 23, 2021, https://thehill.com/opinion/civil-rights/540212-netflixs-i-care-a-lot-should-worry-you; Adrienne Westenfeld, “‘I Care a Lot’ Shows a Very Real Legal System Ripe for Exploitation,” Feb. 23, 2021, https://www.esquire.com/entertainment/movies/a35599831/i-care-a-lot-true-story/; and David Crow, “I Care A Lot: Can Professional Guardians and Conservatorships Really Get THAT Bad?,” Feb. 20, 2021, https://www.denofgeek.com/movies/i-care-a-lot-professional-guardians-conservatorships/.
[6] https://courts.ms.gov/news/2019/05.29.19GAP%20Act%20signing.php
[7]See Miss. Code Ann. §§ 93-20-101 through 93-20-431. A summary can be found here: https://betterchancery.com/gap-act-material/summary-of-the-gap-act/
[8] In this writing, I will be describing only adult conservatorships and guardianships. Similar roles and processes may apply to minors, but a minor’s legal rights are different than an adult’s and, therefore, conservatorship and guardianship laws vary between minors and adults.
[9] https://www.uniformlaws.org/committees/community-home?CommunityKey=2eba8654-8871-4905-ad38-aabbd573911c#:~:text=The%20Uniform%20Guardianship%2C%20Conservatorship%2C%20and,that%20advocate%20for%20guardianship%20reform.
[10] https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=629f904c-61b7-b6b4-d0a1-78151d0bbf1f&forceDialog=0
[11] §§ 309 and 410 of the UGCOPAA.
[12] §§ 301 and 401 of the UGCOPAA
[13] See, e.g., §§ 310 and 411 of the UGCOPAA.
[14] §§ 316 and 419 of the UGCOPAA.
[15] §§ 317, 420, and 423 of the UGCOPAA.
[16] Id.
[17] §§ 318, 319, 430, and 431 of the UBCOPAA.
[18] See FN 5 above and, with respect to Mississippi law prior to passage of their version of the UGCOPAA, Desiree Hensley, “Due Process Is Not Optional: Mississippi Conservatorship Proceedings Fall Short on Basic Due Process Protections for Elderly and Disabled Adults,” Mississippi Law Journal, Vol. 86, No. 4, 2017, Available at SSRN: https://ssrn.com/abstract=3048883.
