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Throughout most of 2020 and into 2021, the “Free Britney” movement has spread across social media. The movement regards pop megastar Britney Spears, who is under a ‘conservatorship’ whereby her father and a trust company manage her financial and personal affairs. For some time, there have been rumours that every aspect of Britney’s life is being controlled by those same people, including who she can see and whether she can perform. Recently, Britney brought a case to a Court in Los Angeles asking for her father to be removed as co-conservator, which was denied.
If Britney lived in England and Wales, would the situation be any different?
The English/Welsh system
In England and Wales, this type of management for someone who lacks capacity is called a Deputyship. In theory, anyone can apply to the Court of Protection to manage the financial affairs of someone who lacks the capacity to do so themselves. If the Court agrees that they are suitable then they can be appointed as the person’s Deputy.
The application to the Court of Protection requires a lot of information to be provided and it can take up to 12 months for the Court to consider the application before issuing a Deputyship Order. During this time the Court will assess both the vulnerable person’s (who I will call “P”) situation and the suitability of the proposed Deputy. As an additional safeguard, the Court will require that both P and their relatives are provided with notice of the application so that if anyone has concerns, the Court can take these into account. The Court will also ask further questions if it feels that it doesn’t have enough information to make a decision.
Of course, if you put a Lasting Power of Attorney (LPA) in place before you lose capacity then your chosen Attorneys appointed under the LPA can take on the management of your financial affairs and/or health and welfare depending on the documents you have executed. You can even appoint separate Attorneys to deal with your business affairs and your personal affairs if you wish. For more information, see our Powers of Attorney page.
Financial Affairs vs Health and Welfare
One important point to note is that the appointment of a Deputy in England and Wales usually only covers property and financial affairs. It is very uncommon for the Court of Protection to appoint someone to deal with P’s general health and welfare matters. This is because the Court prefers for decisions to be made on an informal, collaborative basis and for any disputed decisions to be put before the Court on a case-by-case basis.
The main argument around Britney’s conservatorship is that her circumstances have changed since her well-publicised difficulties in 2007. There does not seem to be any argument that Britney still lacks capacity, and the star herself stated that the conservatorship was now “voluntary”.
If a person under a Deputyship Order in England and Wales regains capacity then they can apply to the Court of Protection for the Deputyship to be brought to an end. In theory, the Deputyship could continue if P is happy for it to do so. Under the Mental Capacity Act 2005, a person must be supported to make decisions for themselves wherever possible and so even if capacity has not been fully regained, often a Deputy is able to support P in their own decision making.
If P wanted the Deputyship brought to an end then they could submit an application to the Court of Protection for its consideration. The Court would take all relevant circumstances into account before making its decision.
Whilst there are parallels between the two legal systems, as an English lawyer looking at the situation in America it is clear that there are some differences. Whilst Britney’s conservatorship may seem extreme to some, the public are not privy to the information which the conservators and the Judges have. Ultimately it is for the Court, whether English, American or otherwise, to decide what is in the best interests of P based on all of the information it has.
It is important to make sure you are getting the right advice where capacity is concerned, especially where there can be differences between jurisdictions. To speak to one of our experienced lawyers about a Deputyship or Court of Protection matters, please phone 01788 579579 or email firstname.lastname@example.org