Lawmakers are paying too much attention to an atypical case, which then distracts them from all that should be done to secure rights for everyday people.
By: Michael Dolce, Lawyer Representing Victims of Sexual Abuse, Sex Trafficking and Domestic Violence
NBC THINK asked Cohen Milstein’s Michael Dolce to write an editorial addressing the conservatorship/guardianship issues in the Britney Spears case and issues and proposed legislation which has arisen as a result.
In what's probably the most watched conservatorship case in history, the yearslong controversy over music superstar Britney Spears' lack of control over her own life has taken center stage as she has appeared in court to plead for her freedom in recent weeks.
While Spears has the support of a self-proclaimed "army" of thousands of fans who want her freed from the conservatorship, and while her case has united the fiercest of national political adversaries to clamor to #FreeBritney, including the likes of Sens. Chuck Schumer, D-N.Y., and Ted Cruz, R-Texas, it's important to understand that Spears' case is unique. Her exploitation shouldn't be used as an indictment of the system as a whole — or as ammunition to scrap it entirely — but as an opportunity to take steps to improve its application and defend against abuses.
What Spears described in her recent court appearances isn't the legitimate administration of a conservatorship. She described horrific abuse, sexism and exploitation under the guise of a conservatorship for the undue enrichment of others, not due care for her personal and financial well-being. She even describes enduring de facto forced sterilization. As a lawyer who advocates for developmentally disabled and mentally ill clients, I can't imagine the justification for that humiliating violation of human rights.
The California court system describes a conservatorship as "a court case where a judge appoints a responsible person or organization (called the 'conservator') to care for another adult (called the 'conservatee') who cannot care for himself or herself or manage his or her own finances." The law limits a conservatorship to "a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter" or "a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence."
But doing away with conservatorships or substantially watering them down in the cry to "free Britney" could make matters significantly worse for many. The disabled deserve as much liberty and freedom as adults as they can handle, as I know from raising a son with a mental health disability. But those who are mentally disabled or ill need help and legal protection, too, because it is all too easy for many of them to be taken advantage of for their money, their bodies, their labor or otherwise.
And the important changes to conservatorship law that are needed mostly aren't reflected in the legislation inspired by Spears' case. Instead, the bills are unfortunate illustrations of the danger of crafting reform based on an atypical conservatee: inadequate steps that apply to too few cases, which then distract from all that can and should be done in more typical cases.
Federal lawmakers have introduced a bill that would prohibit health care providers that receive federal funds from requiring conservators' consent to remove birth control devices or provide birth control without conservatees' consent. It's a great initiative but too limited in its scope, and it would waste the energy that could be used for more substantial changes. At the same time, Congress can only do so much — more important reform will have to come on the state level. But here, the bill California legislators have introduced also falls short.
The pending legislation in California purports to provide comprehensive reform, aspiring to target those who "take advantage of people who are vulnerable to abuse" in conservatorships. But it would actually do little to protect the typical conservatee, focusing on safeguards that would benefit only those in cases involving large sums of money, such as regulating licensing of professional fiduciaries (those who oversee the financial affairs of others) and guaranteeing that conservatees could choose their own attorneys. It would otherwise codify due process rights that are already constitutionally guaranteed.
The legislation also omits what in my professional view is the most important safeguard against abuses, the requirement that each civil and human right be separately considered and granted by a court to a conservator if warranted in a particular case, rather than that a conservator be given wholesale grants of power "over the person" or the "financial affairs" of the conservatee — broad authority that invites and empowers abuse. For example, the court would have to decide specifically whether taking away employment decisions and choosing medical sterilization procedures is warranted for the particular conservatee.
I try to avoid having family members serve as trustees based on the inherent risk that even the well-intentioned can lose objectivity and look to gain personally from those funds, like one parent who wanted to build a swimming pool in the backyard for not just my client but also everyone in the house. Yet another parent wanted to invest my client's money in the family business, believing that was an appropriate way to control the funds and benefit the whole family, not appreciating how that would place the revenue necessary for the child's future care at risk should the business fail.
What Spears described in her recent court appearances isn't the legitimate administration of a conservatorship. She described horrific abuse, sexism and exploitation.
Based on my experience as a state legislative aide and then as a lobbyist for abuse survivors, I believe the lost opportunity to pass truly comprehensive reform with a bill of rights that would apply to all could cripple the chance of doing so any time soon. It is, in fact, more than a lost opportunity; it is a serious setback. The political reality it that it's very hard to return attention to an issue on behalf of people of modest means once the monied interests have already obtained what benefits them.