britney spears conservatorshipSince the hearing regarding Britney Spears and her conservatorship in the California Court, we have been flooded with questions about a conservator, how and why they come about, and how they can assert so much control over another person’s life.

What is a Conservatorship? Who Needs a Conservatorship?

To answer these questions, one must first understand why a conservator is needed.  A conservator, under Michigan Law, is a person appointed by a court to manage a protected individual’s estate (Sec. 1103(g) of Act 386 of 1998).  A protected individual is a minor or other individual for whom a conservator has been appointed or other protective order has been made (Sec. 1106 (p) of Act 386 of 1998) and an “incapacitated individual” is an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions (Sec. 1105 (a) Act 386 of 1998).  This all means that if a person is not able to manage their own affairs, financially or otherwise, a Court can appoint a conservator to do so.  The conservator steps into the “legal” shoes of the protected individual, the one who needs help, and manages that person’s finances, and can control other aspects of the person's decision making, for themselves.  In Michigan, often, but not always, a conservator goes hand in hand with a guardian.  A Guardian is a person who has been qualified as a guardian of a minor or incapacitated individual under a parental or spousal nomination or a court appointment (Sec. 1103 (k) of Act 386 of 1998).  The guardian has control over the individual person, such as medical decisions, where the protected individual will live, and even what activities they can engage in.  The guardian and the conservator can be the same person but this is not required.  The Court can appoint a conservator or a guardian or both, dependent on the protected individual's needs and capabilities.

This means that a conservator or guardian is a Court appointed person or people to help manage, and by definition, control another person’s finances and life choices, because that person has demonstrated that they cannot manage their own affairs.

In Britney’s case, the conservatorship was created during her divorce after she had exhibited strange and self-harming behavior and was hospitalized twice due to her actions.  She truly was not able to manage herself or her financial affairs.  Typically, the Courts will appoint a family member as the conservator or guardian, as they usually are more likely to act in the best interests of their family member who needs help.  Unfortunately, this is not always the case. 

When a Conservatorship is Harmful to the Conservator

We have seen many cases where the conservator, either purposefully or through neglect, do not act for the protected person’s benefit, but for their own.  This is the crux of Britney’s claims.  While the conservatorship may have been necessary at the time it was created, the reason behind its creation may no longer exist.  People get sick.  People have mental breakdowns or may just be going through a really tough situation in life that makes it difficult or impossible to manage their own affairs.  These illnesses or situations are not always permanent and thus a conservatorship or guardianship is not always permanent.  A person can always petition the Court to terminate or limit the powers of a guardian or conservator, especially in cases where they may be helping themselves more than the protected person.  The conservator has a fiduciary duty to act in good faith and for the benefit of the protected person.  If they breach that fiduciary duty, they can be removed and, in some cases, face criminal prosecution.

In some situations, the conservator or guardian exerts so much control over the protected person, they feel trapped, confused, frustrated, and become depressed or act out irrationally.  This in turn can exasperate the issues in that if the protected person petitions the Court to terminate the conservatorship, the conservator will use the protected person’s depression, irrational behavior, and frustration against them, pointing out that the protected person still does not have the mental capacity to manage their affairs.  This is why some “temporary” conservatorships seem to linger on for an extended period, beyond what the Court may initially have anticipated.  Also, it is extremely rare, that a Court will terminate a conservatorship or guardianship on its own, someone has to petition the court to do so.  If the protected individual does not know their rights and does not petition the Court, the conservatorship could go on indefinitely.  This becomes more prevalent if the conservator or guardian is telling the protected individual they cannot petition the Court, which seems to happen in overly controlling situations.

Contact Our Experienced Family Law Attorneys Today

If you have a conservator or guardian appointed for you or know someone that does, it would be wise to have an experienced attorney review the annual accountings, interview the persons involved, and give an opinion as to whether there needs to be a change.  This is especially true, if the illness or circumstances that the conservatorship was created upon, no longer exists.

Relevant Legislation

Estates and Protected Individuals Code (EPIC), MCL 700.1101

Act 386 of 1998 Estates And Protected Individuals Code

AN ACT to codify, revise, consolidate, and classify aspects of the law relating to wills and intestacy, relating to the administration and distribution of estates of certain individuals, relating to trusts, and relating to the affairs of certain individuals under legal incapacity; to provide for the powers and procedures of the court that has jurisdiction over these matters; to provide for the validity and effect of certain transfers, contracts, and deposits that relate to death; to provide procedures to facilitate enforcement of certain trusts; and to repeal acts and parts of acts.

1998 Mi. ALS 386, 1998 Mi. P.A. 386, 1997 Mi. SB 209, 1998 Mi. ALS 386, 1998 Mi. P.A. 386, 1997 Mi. SB 209

Sec. 1103. As used in this act:

(g) "Conservator" means a person appointed by a court to manage a protected individual's estate.

Sec. 1104. As used in this act:

(e) "Fiduciary" includes, but is not limited to, a personal representative, guardian, conservator, trustee, plenary or partial guardian appointed as provided in chapter 6 of the mental health code, 1974 PA 258, MCL 330.1600 to 330.1644, and successor fiduciary.

(k) "Guardian" means a person who has qualified as a guardian of a minor or incapacitated individual under a parental or spousal nomination or a court appointment and includes a limites guardian as described in sections 5205, 5206, and 5306. Guardian does not include guardian ad litem.

Sec. 1105. As used in this act:

(a) "Incapacitated individual" means an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.

(c) "Interested person" includes, but is not limited to, an heir, devisee, child, spouse, creditor, and beneficiary and any other person that has a property right in or claim against a trust estate or the estate of a decedent, ward, or protected individual; a person that has priority for appointment as personal representative; and a fiduciary representing an interested person. Identification of interested persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, a proceeding, and by the supreme court rules.

Sec. 1106. As used in this act:

(p) "Protected individual" means a minor or other individual for whom a conservator has been appointed or other protective order has been made as provided in part 4 of article V.

Sec. 1108. As used in this act:

(a) "Ward" means an individual for whom a guardian is appointed.

Sec. 1212. (1) A fiduciary stands in a position of confidence and trust with respect to each heir, devisee, beneficiary, or ward for whom the person is a fiduciary. A fiduciary shall observe the standard of care described in section 7302 and shall discharge all of the duties and obligations of a confidential and fiduciary relationship, including the duties of undivided loyalty; impartiality between heirs, devisees, and beneficiaries; care and prudence in actions; and segregation of assets held in the fiduciary capacity. With respect to investments, a fiduciary shall conform to the Michigan prudent investor rule.

DUTIES AND LIABILITIES OF TRUSTEES

Sec. 7301 . Except as specifically provided, the general duty of a trustee to administer a trust expeditiously for the benefit of the beneficiaries is not altered by this act.

Sec. 7302. Except as otherwise provided by the terms of the trust, the trustee shall act as would a prudent person in dealing with the property of another, including following the standards of the Michigan prudent investor rule. If the trustee has special skills or is named trustee on the basis of representation of special skills or expertise, the trustee is under a duty to use those skills.

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