#FreeBritney has shone a light worldwide on issues of capacity & control - but are there any greater protections in our legal system?

Lauren Clarke, associate, Charles Russell Speechlys, 22/07/2021

Lauren Clarke, Charles Russell Speechlys

The #FreeBritney campaign has reached a critical point over recent months following a series of court hearings during which US singer Britney Spears gave an impassioned testimony and petitioned the US court to have her father removed as her conservator. 

The issues at hand, which have been widely discussed in the media, have shone a light worldwide on a person's capacity to make decisions, the court's power to grant authority to family members to make those decisions on someone's behalf and how that power has the potential to be abused. 

Observers on this side of the pond have questioned whether our legal system recognises anything similar to the concept of conservatorship in the US. This short article seeks to dispel some of the myths and cut through the mystery and fear surrounding these issues.

1. Conservatorship vs Deputyship: Britney is subject to what is known as a 'voluntary conservatorship' in the US, which granted her father and (until recently) a trust company authority over her estate and health decisions. In England & Wales we instead have the concept of 'deputyship' and the Court of Protection can appoint a deputy for financial decisions and/or health decisions where it is demonstrated that a person lacks the mental capacity to make the particular decision in question for themselves. 

Alternatively, if someone has capacity, they are able to put in place what is known as a Lasting Power of Attorney (LPA) (previously an Enduring Power of Attorney) and within that document name who they would like to appoint to act on their behalf in the event that they were to lose capacity. An LPA is therefore often the preferred method as it avoids the need for a lengthy (and often costly) court process and it gives the individual autonomy over who they wish to appoint.

2. Remuneration: one of the more contentious aspects of the Britney case, which has recently come to light, is that her father draws an allowance (rumoured to be in excess of the allowance Britney receives) for acting as her conservator. In England & Wales, if a family member or friend of the person is appointed as a deputy or attorney they would not be able to draw an income or profit in any way from their role. Indeed one of the primary, overarching duties placed upon a deputy or attorney is to act in the person's best interests at all times and, in the case of financial matters, apply any funds for that person's benefit. 

The inability to profit from the role acts as a protective mechanism against abuse and the Office of the Public Guardian has a supervisory role and the authority to investigate if any concerns are raised. Professional deputies or attorneys are able to charge for any work undertaken in their role but only if specifically authorised within the deputyship order or LPA.

3. Right to object: Britney claims to have only recently become aware that she is subject to a voluntary conservatorship i.e. she has always had the right to petition the court to have the conservatorship set aside. We would hope that these circumstances would not arise in the UK. 

In order to obtain a deputyship order, the proposed deputy (or deputies) need to apply to the court to demonstrate that the person lacks the capacity to make the particular decision in question by way of supporting evidence, including a detailed capacity assessment completed by a medical professional. 

The person who is the subject of the application must be formally notified so that they have the opportunity to be involved in the application and object to it or put forward their views.

Whilst I do not think any private client practitioners would claim the process in England & Wales is perfect, there are many in-built protections in the legal system designed to uphold the rights of the person and ensure that their needs and best interests are put at the centre of any court proceedings involving them. 

The LPA regime in England & Wales also offers an 'easy win' as it is a straightforward alternative way of ensuring a trusted person or team of people could look after your interests in the event of incapacity.

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