Guardianship proceedings – learn the facts and the Florida laws

In November 2021, after Britney Spears’ father, Jamie Spears, was suspended as conservator of his daughter’s conservatorship, a judge finally ruled to end the conservatorship. This decision signaled the end for the restrictive supervision that had been in place since 2008. Back in June 2021, Britney Spears made headlines as she gave an emotional testimony pleading for her conservatorship to be lifted, echoing the online social media movement #FreeBritney. After nearly fourteen years, Ms. Spears is finally poised to assume complete autonomy of her life and regain many of her most fundamental individual rights.

What is a conservatorship?

Under California law, where Ms. Spears resides, “[a] conservatorship is 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 state declares one to be a conservatee if he or she is intellectually incapacitated and unable to make independent decisions, usually involving ailments such as dementia, serious mental illness, or other metal disabilities. Once the court establishes the conservatorship, the conservatee loses the right to make certain decisions, such as deciding medical treatment, controlling financial assets, marrying, and signing contracts, to name a few.

Ms. Spears lost her ability to make all of these decisions, unwillingly relinquishing this control to her father as conservator. Ms. Spears has even alleged that her mandated forced contraceptive devices and secretly installed listening devices to surveil all conversations and eliminate any privacy, both sparking controversy as a potential moral and constitutional violations of basic privacy rights.

They can still have a good purpose

Ms. Spears’ case and its alarming details of alleged abuse have certainly sparked debate about the ethics and morality of conservatorships. Despite this particular experience, it should be noted that conservatorships and their corresponding institutions in other states can serve an important role and, when used appropriately, can provide an important legal tool to care for a vulnerable individual at risk.

In Florida, this process is called “guardianship,” and functions primarily the same way as conservatorships in California, despite some minor procedural differences. Guardianships similarly offer protection for elderly, mentally ill, or otherwise incapacitated people, and give financial control to family members and other qualified individuals. Once an alleged incapacitated person is adjudicated to be incapacitated, he or she is referred to as a “ward.” Subsequently, the court will determine to what extent the ward’s rights are to be stripped and surrendered to the “guardian.”

In Florida, Guardianship has gained notoriety for its issues. It has been called a “broken system,” rife with abuse. Countless investigative stories have exposed guardians that exploit seniors under the guardianship system and steal money for their own personal gain. At times, abusive guardians face criminal repercussions for their abuse, and wards escape from excessive control. But other times, unfortunately, abusive guardians evade accountability. This process is further complicated by the lack of an objective system for determining incapacity; instead, a three-person examining committee makes subjective determinations of incapacity after a short interview. Fla. Stat.§ 744.331(3). This lack of an objective system subjects alleged incapacitated people, potentially with similar or analogous deficiencies, to inconsistent results or guardianship terms. Most professionals familiar with the system agree that it needs a massive overhauling, and efforts may already be in place.

Given these systemic problems and the ward’s potential for losing fundamental civil rights, guardianship should only be used in those extreme cases where a person is truly incapacitated and is truly unable to function properly in society. There is a plethora of alternative arrangements to consider before initiating guardianship proceedings, such as creating a durable power of attorney or a living trust. Ms. Spears’ case serves as an example and a warning of the dangers of guardianship and potential for abuse, reminding us that it should only be used in the most necessary circumstances and under the most transparent conditions.

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The skilled attorneys at Chepenik Trushin LLP can assess your circumstances and work with you to create a plan that best fits your needs. Contact Bart Chepenik at 305-613-3548, or Brad Trushin at 305-981-8889. We’re ready, willing and able to assist you with your probate and guardianship needs.

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