As pop culture aficionados and #FreeBritney sympathizers everywhere watch Britney Spears’ conservatorship case unravel, many clients may wonder if establishing a guardianship (the name for conservatorships in Florida) is ever advisable. It’s the Britney effect: Ever since the pop star told a Los Angeles judge in 2019 that she was being abused by her conservators, including her father Jamie Spears, her case has put a spotlight on the need for meaningful protections for the most vulnerable. It has also introduced a lot of confusion for trust and estate law clients across the country, including in Florida.

Under Florida law, as in many other states, a guardian is a court-appointed surrogate who can make financial and other decisions for a minor or for an adult ward with mental or physical disabilities. The law allows for both voluntary and involuntary guardianships, and both are subject to court oversight. Some activists and lawmakers argue that current laws across the United States can enable unnecessary or exploitive guardianships, and that reforms are needed to protect people with disabilities from abuse.

What does this mean for trust and estate practitioners? Some may have clients, particularly older people experiencing the onset of cognitive decline, who seek counsel out of concern that a potential guardian may strip them of their civil rights. Others may have clients trying to determine whether a guardianship is an appropriate way to support a loved one who is no longer able to make decisions independently.

The Spears’ case, although unusual due to its high financial stakes and Britney’s pop-star visibility, underscores the challenges and questions that arise in everyday guardianship matters, such as the following:

My client’s elderly father tends to wander off and refuses to take his medicine. Can my client tap into his funds to pay the legal fees involved in setting up guardianship?
Seeking a guardianship can be an expensive proposition. The petitioner bears the legal costs of the claim and proceedings whether they win or not. If they are successful, they must then petition the court to approve the use of the ward’s funds to cover the associated legal fees. In this hypothetical case, if the father contests guardianship, the case could essentially become a mini-trial with witnesses, and the petitioner would be on the hook financially.

How does an individual avoid unwanted guardianship?
The Spears case is anything but typical. Britney’s conservatorship was initially voluntary—it’s generally difficult to establish an unwanted guardianship over an individual if they are not incapacitated or in a psychiatric hold. For example, families seeking guardianship to protect a loved one with mental health issues from becoming financially destitute may fail to do so if the person convinces the court that they can make their own decisions. In general, Florida courts favor the least restrictive arrangements, and, if a healthcare directive and power of attorney will suffice, courts consider guardianships unnecessary (as long as everyone named in the documents complies with the directives).

What about the cost of caring for a ward? In the Spears case, the court approved millions of dollars in fees for Britney’s co-conservators. 
You can’t spend a ward’s money without the court’s approval. Under Florida law, a guardian is entitled to reasonable fees for their services. In determining what is reasonable, the court considers the typical fees associated with providing a particular service as well as how novel or difficult the service is to perform. Part of the reason the Spears case has caused such a stir is because Jamie Spears’ court-approved fees include a six-figure salary and compensation for negotiating Britney’s concert tours and other business dealings. More typically, guardians are compensated for services like driving their wards to medical appointments.

When should my client volunteer to enter guardianship? 
An individual who experiences and recognizes signs of cognitive decline may consider a guardianship for many reasons, such as feeling vulnerable to predators. Because wards cannot enter into legal contracts without the permission of their guardians, guardianships may help them avoid being exploited by scammers.

Is it hard to get out of guardianship?
Guardianships are intended to be closely monitored by courts, with wards having ready access to lawyers or caseworkers to help them get out of unfavorable situations. This system of protections is critical to protecting the civil rights of people with disabilities.

No matter what the outcome of the Spears’ case—the next hearing, which will consider Jamie Spears’ petition asking the court to consider whether the conservatorship is no longer required, is scheduled for Sept. 29—it’s clear that guardianships should have structures in place to safeguard freedoms for the most vulnerable in our communities. In July, Congress introduced a bipartisan bill called the Freedom and Right to Emancipate from Exploitation Act (FREE Act) that would make it easier for wards to replace their guardians or conservators. This legislation could be a positive step toward exposing abuse in guardianships and protecting those who need it most. People must have a clear path out of unwarranted conservatorships.

Reprinted with permission from the September 29 issue of the Daily Business Review. (c) 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.