Britney Spears and capacity: how would her situation be addressed if she were based in England?

A big story in the news recently is the conservatorship order granted to James Spears, the father of the world-famous pop star Britney Spears. This order, made following the US Court’s decision that Britney does not have the physical or mental capacity to manage her own affairs, grants Mr Spears authority to manage his daughter’s financial and health and welfare affairs.

At a conservatorship hearing held on 23 June 2021, it was revealed that Britney is forced to use contraception against her will and has been subjected to gruelling psychological evaluations. Many questions have been raised as to how such an authority can be granted in, what would appear to be against her basic human rights.  

The closest thing to a conservatorship order under English law, is a deputyship order.

Who is a Court of Protection deputy and what can they do?

For a deputy to be appointed on behalf of someone who lacks mental capacity, an application is made to the Court of Protection. People may lack mental capacity because of brain injury, illness, or disability. It may be temporary or permanent and the extent and effects will vary from person to person. The Court of Protection will then appoint a suitable person, whether it be a lay person or a professional deputy.

All deputies must report their decisions annually to the Office of the Public Guardian, the body responsible for the oversight and regulation of deputies.

What is the difference between a deputy and an attorney appointed under a lasting power of attorney?

The role of a deputy is similar to that of an attorney but the main difference between a deputy and an attorney, is that an attorney is chosen and appointed by the ‘donor’ (by means of a lasting power of attorney (“LPA”) before they have lost capacity and a deputy is appointed by the court following a determination by the court that the individual lacks capacity.

There are two types of deputyship. The first and the most common is a deputyship to manage decisions about a person’s property and financial affairs. The second is a deputyship to manage decisions about health and welfare. The Court of Protection is always more cautious when it comes to appointing someone to manage decisions about a person’s health and welfare.

Key differences between the UK and US systems

A conservatorship in the US is complex and the rules can differ from state to state. A key difference between a conservatorship and a deputyship is that a deputy must consider the individual's mental capacity in relation to each of the decisions being made, by acting in accordance with the provisions of the Mental Capacity Act 2005 (MCA) which aims to empower those who lack capacity and keep them at the centre of the decision making process.

There are five key principles within the MCA to which the deputy must adhere:

1. A person must be assumed to have capacity unless it is established that he lacks capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Safeguards

Another key difference between a deputyship and conservatorship is that deputies are required to provide a detailed report to the Office of the Public Guardian every year. This report will record the decisions made in their capacity as deputy and will enable the Office of the Public Guardian to ensure that the deputy is acting in the best interests of the protected party.

In England, non-professional deputies can claim reimbursement for reasonable expenses incurred in their role. This is distinctly different to the way in which Britney Spears’s conservators have reportedly been able to handle her affairs. Under a conservatorship they are able to take a percentage of her income as well as a salary from the affairs they were appointed to manage.

The rules a deputy must follow in the England are in place to prevent full control of a person against their will and without their engagement in the decision-making process, as appears to be the situation in which Britney Spears finds herself in. All decisions taken by the deputy must be in the best interests of the protected party and must take into account their wishes, a safeguard not afforded to those subject to conservatorship in the US and one which may have protected Britney against the apparent abuse of power that she is fighting against at the moment.

Who can be a deputy?

Most recently, Britney’s father has decided to step down as conservator which means that the court will begin the process of finding a new conservator. The US court's first choice as conservator is a close family member, usually a spouse or domestic partner, parent, or adult child. If no close family member is available or suitable, the court will consider other relatives or friends and if no family member or friend is available, the court will usually appoint a neutral, specially trained lawyer who handles these matters on a regular basis.

Similarly, under English law, if a deputy is removed or retires and there is no one suitable to take over the deputyship, the court will usually refer the work to a professional deputy chosen from a specialist list (or panel) of deputies. The so-called ‘panel deputies’ are approved by the Office of the Public Guardian (the body that oversees deputies). Our Court of Protection team at Weightmans is headed up by our own panel deputy, Beverley Beale.

Britney’s father has set out his intention to work with the court in finding a replacement conservator for his daughter and it is to be hoped that his successor will undertake a forensic investigation of his conduct as conservator given the various allegations made as to his conduct of Britney’s affairs. We are likely to hear more about this case as it unfolds. 

Summary

There may come a time in your life when help may be required with the management of your property and finances and/or health and welfare decisions. By planning ahead, you can appoint someone of your choice to assist you with these decisions by executing a LPA.

In cases where there is no LPA in place and a position is reached where a person cannot make these types of decisions for themselves an application would need to be made to the Court of Protection for the appointment of a deputy to manage their affairs. By making a LPA ahead of time you will avoid this application having to be made and you can have the peace of mind that someone who you trust and have chosen to manage your affairs will be doing so.