Attwood Marshall Lawyers Estate Litigation Senior Associate, Lucy McPherson, provides an update on the Britney Spears legal battle to appoint a replacement guardian of her choosing to take over the control of her estate and personal affairs.
An update on the Britney Spears Legal Saga
The media and Britney Spears’ fans have been waiting in anticipation for her appearance in Court to speak publicly about her conservatorship, which took place on Wednesday 23rd June 2021.
The pop singer appeared in the Los Angeles Superior Court via phone to urge the Judge to end the guardianship arrangement that has been in place since 2008, which has her father, Jamie Spears, appointed as Britney’s conservator.
The conservatorship came into play after Britney suffered a highly public breakdown, substance abuse and mental health issues. Since that time, Jamie Spears has been managing and controlling Britney’s financial and personal affairs, making all her decisions for her.
The conservatorship gives others the power to decide Britney’s:
- Medical decisions
- Business endeavours
- Choice to marry
- Access to people and who visits her
- Interaction with her children
In a fervent declaration, Britney pleaded with the Judge to put an end to the arrangement and explained that she has been left traumatized and depressed as a result of her father’s control over every aspect of her life.
“I’m not happy. I can’t sleep. I’m so angry. It’s insane,” Britney said, adding that she cries every day.
“I’ve been in denial. I’ve been in shock. I am traumatized. I just want my life back.”
“I truly believe this conservatorship is abusive. I want changes, I deserve changes,” she pleaded to Judge Brenda Penny.
Britney expressed her discontent with her current medical plan and has requested a therapist visit her at her home. In her address to the court, Britney stated she had been drugged, compelled to work against her will and prevented from removing her birth control device.
In March 2020, Britney and her legal team filed a permission to remove her father from his role as conservator and made a request to give sole power over her estate to a financial institution, and to appoint Jodi Montgomery as her permanent conservator of her person.
The argument of who should protect and manage her assets has been a contentious issue as there are claims Britney is susceptible to undue influence and the conservatorship is necessary to protect her assets and maintain her complex finances.
In December 2020, according to court documents obtained by E! News, Britney’s conservatorship is extended to September 2021.
Conservatorship vs Appointment of Enduring Guardian or Enduring Power of Attorney
In Australia, we have similar appointments that can be made to give someone the authority and power to make decisions on behalf of someone who is unable to manage their own affairs, however we do not refer to this appointment as a conservator.
Appointment of Enduring Guardian (NSW or VIC)
An Enduring Guardian is a person you appoint to make health, medical and lifestyle decisions on your behalf in the event you lose the capacity to make those decisions for yourself. The kinds of decisions your Guardian can make include:
- Determining where you live and the health care services you might receive, for example if you are to live in an aged care facility
- Consenting to services you may need for employment, training, vocational or educational services
- Consenting to social and recreational services
- What medical and dental treatments you receive
- Who your treating physicians are
- Who has access to you or who you can have contact with
- Decisions around palliative care and life-extending treatments.
In NSW, the legislation is the Guardianship Act 1987 and in Victoria the Guardian and Administration Act 2019 apply for this very important area of law.
Enduring Power of Attorney (NSW or VIC)
If someone is appointed as your Enduring Power of Attorney in NSW or VIC, they will have the power to make all your financial decisions and control your financial affairs. These decisions need to be made in your best interests. They may include:
- Controlling your money
- Managing, buying, or selling shares
- Buying or selling property
- Managing your superannuation
- Managing your business interests
- Managing or buying and selling motor vehicles
- Managing debts
In Queensland, an Enduring Power of Attorney is the only document you need to put in place which can give someone, or multiple people, the power to make all the above decisions for you in the event you lose capacity to do so. The relevant legislation is the Powers of Attorney Act 1998.
Why it is so important to have an Enduring Power of Attorney or Appointment of Enduring Guardian?
Every day we run the risk of something unexpected changing our lives as we know it. We don’t intend to have an accident, or get sick, but the reality is, we are only human. We insure our cars in the event we are involved in a car accident, because we know the risk is there. We insure our home against storm damage, theft, vandalism, because although we don’t plan for it to happen, the risk is present.
However, for many people, they never consider to “insure” their decision-making capacity. This is basically what appointing an Enduring Power of Attorney or Appointment of Enduring Guardian does. In the event you suffer a stroke, are involved in a car accident or workplace accident that sees you suffer a brain injury, or you get diagnosed with a progressive neurodegenerative disease such as Alzheimer’s, it is important to know that someone will protect your best interests and can make decisions for you in line with what your wishes or intent would be.
Mental illnesses are another area that are extremely complex and can impact someone’s decision-making capacity.
With mental illnesses prevalent in Australia, this is a particularly concerning area where many people do not have someone appointed to step in and take control of their affairs if they get to a point they simply cannot continue to do so on their own.
It is estimated that 1 in 5 Australians aged 16-85 experience a mental health illness. The most common mental illnesses are:
- Depression
- Anxiety
- Substance use disorder.
In many cases, people can suffer from a combination of the above mental illnesses at one time. It is expected that 45% of Australians will experience a mental illness in their lifetime.
In situations where someone may suffer from a psychiatric condition that fluctuates their decision-making capacity, meaning that they regain that capacity intermittently, an Enduring Power of Attorney may be able to make decisions for you during those periods. You can stipulate this in the document and instruct your attorney to act when your doctor states you are currently lacking capacity. They can then hand you back that power when you regain your capacity.
The documents are tailor-made to suit your needs so that you can write specific instructions as to the extent of the power of your attorney and the type of decisions they can make for you.
Ensuring you have the capacity to execute these legal documents in the first place is integral as you must understand what you are agreeing to and the power of the person you are appointing to the role. If you do not have legal capacity at the time of making the document, it will not hold up and you will not be able to make an Enduring Power of Attorney.
It is important to put these documents before your health changes or an unexpected event impacts your decision-making capacity.
When you have these documents in place, you can have peace of mind that you have appointed someone you trust to have your back if you end up in a vulnerable state.
What can happen if you don’t have someone in your corner?
In Queensland if you do not have an Enduring Power of Attorney in place, or in New South Wales and Victoria an Enduring Power of Attorney and Appointment of Enduring Guardian, then a guardian or attorney will be appointed to manage your affairs and make decisions for you by a Tribunal. Who a Tribunal appoints to make decisions for you may not be the person you would have chosen for yourself. In many cases, the Public Trustee is often appointed to this role if you do not have an Enduring Power of Attorney or Appointment of Enduring Guardian already in place.
It is well-documented that having the Public Trustee put in this significant position of power to manage the financial affairs of those most vulnerable is not necessarily in their best interests.
In our recent article “QLD Public Advocate Review exposes Public Trustee’s failings and conflicts of interest” we discuss this very issue and some of the devastating consequences people and their families have faced when The Public Trustee have failed to look after the affairs of those entrusted to them.
Appointing a friend or relative isn’t always the answer if you do not have anyone in your life you can trust explicitly. Only you know who you would be comfortable with to make your most important decisions on your behalf. If you do not have anyone in your life that you trust, you may choose to appoint a professional.
How Attwood Marshall Lawyers can help
Although we don’t all have the complex and public life that Britney Spears has, her legal battle should serve as a reminder of why it is so important to have someone you trust appointed as your Guardian or Attorney if you lose your decision-making capacity.
Whether it is mental illness, an unexpected accident, or a progressive neurological disorder, we all need to know that someone will look after us if our health deteriorates and our circumstances change. Don’t leave it up to chance, take control of who you want to support you and look after your affairs by putting the legal documentation in place.
Attwood Marshall Lawyers is a leading guardianship and administration law firm with one of the largest and most experienced Estate Litigation and Estate Planning teams in Australia. If someone you know is not getting the right treatment, we can help you by giving you advice and supporting you through the steps to address the issues head on.
We can help anyone who is experiencing problems with the Public Trustee, including matters related to:
- The mismanagement of financial affairs;
- The mismanagement of estates where the Public Trustee has been appointed as Executor
- The charging of exorbitant fees by the Public Trustee for financial management or estate administration services
- Seeking the removal of the Public Trustee, and applications to appoint an alternative decision-maker.
If you would like to discuss any issues you are experiencing related to Power of Attorneys or Guardianship, please contact Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071 any time.
UPDATE! Friday 16 July 2021
On Wednesday 14 July 2021,Britney Spears retained a new lawyer who has promised to petition the court to remove Jamie Spears, Britney Spears’ father, from his role as her conservator.
At the hearing in Los Angeles County Superior Court, the Judge accepted the resignation of Britney’s prior court-appointed attorney and acknowledged her new lawyer, Mr Mathew Rosengart.
The hearing marked the next steps in Britney’s effort to reclaim more control over her life and her estate.
Britney’s new lawyer, Mr Rosengart, has represented a long list of celebrities including Steven Spielberg, Sean Penn and Ben Affleck, and he has said he would file the petition as soon as possible and would be investigating the conservatorship and the validity of its implementation dating back since 2008.
“There’s a question as to why Mr Spears doesn’t voluntarily step aside today,” said Mr Rosengart in court.
“If he loves his daughter it is time to step aside.”
The judge also accepted a petition from wealth management firm , Bessemer Trust, to back out of its plans to be a co-conservator with Jamie Spears, effectively making him sole conservator of Britney’s finances once again.
Following exchanges between the lawyers regarding Britney’s capacity and concerns, the judge closed the session by stating, “Everybody should be working collaboratively to help Ms Spears get to the point where she wants to be. It’s not about anyone else, it’s about her.”
Read more:
A Britney-sized battle: What can be done when Attorneys or our decision-makers behave badly?
Unfair commissions and financial mismanagement – NSW Trustee and Guardian cannot be trusted
QLD Public Advocate Review: Part 2 – Why we are seeing an increase in Public Trustee Disputes
Enduring Power of Attorney – one of the most crucial and powerful documents you can create in your lifetime
