Is a US conservatorship the same as a UK deputyship? Jade Price, solicitor and specialist on the Court of Protection and Mental Capacity law, with a particular emphasis on Financial Deputyship work and assisting vulnerable clients in the management of their affairs, explains.
The US system of conservatorship became much better known around the world in the wake of the now famous Britney Spears case. After the singer suffered a mental breakdown and subsequent hospitalisation, Spears’ father was given control of her considerable finances and affairs for more than a decade. Her challenge to this control spawned the social media #freebritney movement and eventually saw Spears successfully terminate the conservatorship.
Recently another American star, Amanda Bynes, has filed a petition at the Ventura County Superior Court in California asking to terminate the conservatorship that has controlled her personal and financial affairs since she was placed under it in 2013. (At the time, she had reportedly set a fire outside a home in Thousand Oaks and was hospitalized under a 5150 psychiatric hold). Her mother, Lynn Bynes, has been her conservator. Both parents reportedly support Bynes’ petition to resume control of her affairs.
What system exists in the UK and is it the same as the US?
In England and Wales, if a person has the mental capacity to manage their property and financial affairs, then they are able to make a lasting power of attorney (LPA). This allows them to decide who they would like to deal with their affairs if they were to lose capacity in the future. There are two LPAs that a person can make; one covering their health and welfare and the other covering their property and financial affairs. The person or people that they choose to deal with their affairs are known as attorneys. Attorneys are supervised by the Office of the Public Guardian (OPG)* which has the power to investigate concerns about the actions of attorneys.
*If you have concerns regarding the actions of an attorney, you should contact the OPG and the local authority to raise those concerns.
If, however, a person is found to lack the capacity to deal with either their health and welfare, or their financial affairs, and has not made a lasting power of attorney, the Court of Protection can appoint a deputy to act on their behalf. This is broadly comparable with the United States system of conservatorship.
In England and Wales, the two aspects (property and financial affairs on the one hand; health and welfare matters on the other) are dealt with separately. It is more common for the court to appoint a deputy to look after financial affairs. Only on very rare occasions will the court appoint a deputy for Health and Welfare.
Britney Spears conservatorship
This makes it highly unlikely that Britney Spears would have a health and welfare deputy under the legal system of England and Wales and therefore the restrictions on her, such as inability to marry and to have children, would most likely not be imposed on her. In England and Wales, matters are framed in terms of what a person has got, or not got mental capacity to decide for themselves. The courts in this country cannot give one person the power to decide whether another person should marry, or have children.
Individual rights and freedoms
That is not to say that our courts are not sometimes asked to decide whether a person has capacity to marry. However, decisions such as this touch on fundamentally important individual rights and freedoms. Decisions of this nature are most often taken on an issue by issue basis. Very importantly, powerful legal safeguards exist to promote individual autonomy. The courts will only make restrictive orders as a last resort, if the person cannot be assisted to make their own decision, and if the action proposed is both in that person’s best interests and is the least restrictive step that could be taken. The restrictions that were placed on Britney Spears could not, in my view, ever be consistent with mental capacity law in England and Wales.
Deputies who deal with a person’s property and financial affairs are appointed much more regularly than deputies to made health and welfare decisions. A property and affairs deputy can be a lay person, such as a family member or friend (similar to the legal guardians of both Amanda Bynes and Britney Spears, whose mother and father respectively were appointed). Alternatively, a deputy could also be a professional. In some cases, there could be more than one deputy appointed, and in this scenario there could be a lay deputy acting alongside a professional co-deputy.
The Office of the Public Guardian
The OPG supervises court appointed deputies. If concerns are raised regarding a deputy, the OPG will usually investigate them. The Court of Protection can remove and replace a court appointed deputy if necessary. Similarly, if there has been a breakdown in the relationship between the person and their deputy, the court can remove and replace the deputy.
If the person regains the mental capacity to deal with their property and financial affairs (such as the reported change in Amanda Bynes’ capacity) the court can make an order discharging the deputy and the person would then be recognised as having the right to make their own decisions about their own financial affairs.
In England and Wales, local authorities have a statutory responsibility to safeguard individuals who are at risk of neglect or abuse. The Care Act 2014 sets out the legal framework for how they should do this. This legislation acts as an additional protection for vulnerable individuals who may find themselves in a similar situation to Britney Spears.
The author Jade Price acts on behalf of PSG Trust Corporation Limited which is appointed as financial deputy for many clients across the United Kingdom. She also acts on behalf of lay clients who wish to become appointed as a financial deputy for members of their family or friends. If you have any questions relating to deputyships, please do get in touch today. We are here to help.