US singer and entertainer Britney Spears has been in the news recently in regard to the management of her business and personal affairs, which have been in the hands of her father, Jamie Spears and lawyer, Andrew Wallet. Mr Spears and Mr Wallet had been Britney’s legal guardian in an arrangement known as conservatorship since 2008 when the court ordered they temporarily act as conservators. After the court ruled Britney was unable to manage her own estate and affairs, this arrangement was made permanent.
In 2019 Mr Wallet removed himself as conservator and was replaced by Britney’s manager, Jodi Montgomery.
Britney’s conservatorship still remains in place which means that she is unable to make personal, financial or lifestyle decisions and she has sought to dismiss her father from his role as conservator. This has led to the #FreeBritney campaign led by her fans calling for her to regain autonomy over her affairs.
What is conservatorship?
In the US, a conservatorship is an order made by the court which appoints a ‘guardian’ who will take control and manage an individual’s financial and lifestyle affairs. This is usually due to physical or mental incapacity such as old age, mental disability such as dementia or mental health concerns.
Britney’s conservatorship is divided into two branches, one for her estate and financial affairs and the other is for her as a person. Because of the conservatorship, Britney has not had control over her finances or assets for 13 years.
While Britney has sought to have her father dismissed from his role as conservator and has claimed conservator abuse involving financial exploitation and excessive personal restrictions but to date, she has been unsuccessful.
Could his happen in Australia?
Conservatorship does not exist in Australia however in its place there are administrative and guardianship orders which are similar in that they provide authority to a representative/s to make decisions on behalf of others.
In Victoria, the Victorian Civil and Administrative Tribunal (VCAT) can appoint a representative as administrator and/or guardian for a person living with a disability. However, they will only be appointed if VCAT rules that the person they will represent has a disability and are not able to make financial and/or lifestyle decisions. There is a requirement that this incapacity be proven with medical evidence.
If incapacity is proven, the court will take the individuals wishes into account when making a guardianship or administration order for their affairs. There orders are never permanent, as is the case with Britney and it is common practice that these orders are frequently reassessed by VCAT.
What is an administrator?
An administrator is a representative who manages the financial and legal affairs of an individual who is unable to make those decision on their own behalf due to disability. An administrator is usually a friend or relative of the individual with the disability or an accountant ore solicitor however, should there be no suitable person available, VCAT may appoint the State Trustees to act.
An administrator will make decisions regarding things such as managing their property, paying bills and the purchase of items that the individual wants or needs. VCAT can also provide them with other powers such as, they can receive income on behalf of the individual, invest their money, manage their business or enter into contracts.
What is a guardian?
A guardian is a representative who makes personal lifestyle decisions for an individual who is unable to make those decision on their own behalf due to disability. A guardian is usually a friend or relative of the individual with the disability however, should there be no suitable person available, VCAT may appoint the Public Advocate to act.
A guardian is to made decisions regarding living and working arrangements and medical treatment and must:
- be an advocate for the person they are representing;
- encourage the person to develop their capacity to make personal decisions
- protect them from neglect, abuse and/or exploitation;
- act with honesty, diligence and always in good faith;
- use reasonable skill and care;
- not use the position for gain or profit;
- avoid conflicts of interest; and
- ensure confidentiality.
A guardian must also follow the general principles found in section 8 of the Guardianship and Administration Act 2019.
If a guardian is given the power to make medical treatment decisions for the person, they must do so in accordance with the Medical Treatment Planning and Decisions Act 2016.
How can Nevett Ford assist you?
Given the media attention the #FreeBritney campaign has caused, there are increasing concerns regarding conservatorship and administrative and guardianship orders. If you have any queries, contact our Wills and Estates Team on 03 9614 7111 or email firstname.lastname@example.org.