In practice, a number of the above legal protections are chimerical. Limited guardianships are vastly under-used. Less restrictive alternatives to guardianship are not explored. Hearings can last a matter of minutes. Periodic reports to the court are reviewed pro forma. “Restoration”—the term for terminating the guardianship—can be almost impossible to obtain, even when all relevant parties and experts agree it is appropriate. Some guardians abuse their authority by taking advantage of the person under guardianship financially and physically. No wonder that Rep. Claude Pepper observed many years ago that a person subject to guardianship had fewer rights than the typical convicted felon, and that many have described guardianship as tantamount to “civil death.”
Given the important interests at stake in guardianship proceedings, the question naturally arises: what is the role of the lawyer for the person subject to guardianship? That should not be a difficult question to answer: the lawyer should zealously represent the expressed interests of his or her client. If the respondent opposes guardianship, or objects to the person seeking to serve as guardian, the lawyer’s role is neither to be the judge, nor to determine what the lawyer thinks is in the client’s best interest, but to present the person’s arguments and evidence in as persuasive a manner as possible. If the court nevertheless orders the guardianship, the lawyer’s role is more complicated, as ABA Model of Professional Conduct Rule 1.14 (which most states have adopted verbatim) urges the lawyer to maintain as normal a client-lawyer relationship with the person as possible. The comments to Rule 1.14 provide inconsistent guidance, suggesting that ordinarily the lawyer would look to the guardian for decisions on behalf of a client (comment 4) while at the same time requiring the lawyer “as far as possible” to accord the person under guardianship the status of a client, especially regarding communications with the individual (comment 2). But as Nina Kohn and Catheryn Koss have written, a person under guardianship at a minimum must be able to retain a lawyer to challenge (1) whether a guardianship should be ordered; (2) the terms of the guardianship; (3) the actions of the guardian; and (4) actions regarding any matters that are outside of the guardianship.
In particular, the lawyer for the person subject to guardianship should explore possible less restrictive alternatives to this modality. Even though the formal legal burden is on the petitioner to demonstrate that there are no such less restrictive alternatives, the reality is that the respondent’s lawyer will need to identify them if the lawyer hopes to prevail in the hearing. Alternatives such as supported decision-making, in which the person can choose one or more persons to assist him or her in decision-making without giving up one’s decision-making authority, are gaining increasing acceptance in a number of states, with support from such entities as the National Council on Disability, the ABA (in Resolution 113, adopted in August 2017), and the Uniform Law Commission (in the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, 2017), among many other authorities.
But before one even gets to the issue of the lawyer’s role in representing a person subject to guardianship there is the prior issue of whether that person is able to retain a lawyer of his or her choosing. If the court determines that the person’s capacity is so diminished that he or she lacks the capacity to hire a lawyer—because, say, the person does not understand the nature of the proceedings or what the role of a lawyer is—the court could appoint a lawyer for the person, negating the person’s choice.
And that’s exactly what Judge Reva Goetz did in the Britney Spears case. Back in 2008, when Jamie and Lynne Spears filed the petition for conservatorship over Britney Spears, the latter retained a lawyer, Adam Streisand (a cousin of the famous actress/singer Barbra Streisand), to represent her. Streisand argued that Britney Spears did not want her father to serve as conservator. But, based on confidential reports from one of the psychiatrists who examined Britney Spears and from a lawyer, Samuel Ingham, whom she appointed as Spears’ “advocate,” the judge decided Spears lacked the mental capacity to retain a lawyer. She also rejected Spears’ efforts to retain another lawyer, Jon Eardley, to file a motion to remove the conservatorship case to federal court. Instead, the judge appointed Ingham as Spears’ lawyer, a position he held until July 2021 when he filed a motion to withdraw as Spears’ counsel. The judge provided neither Britney Spears nor her chosen counsel with the reports on which she relied to determine Spears lacked capacity to hire her own attorney.
We are not privy to the conversations that Britney Spears and Mr. Ingham had between his appointment as her lawyer in 2008 and his withdrawal as counsel in July 2021. We do know, however, that Spears claimed in the summer of 2021 that she did not know that she could have petitioned for the termination of the conservatorship at any time between 2008 and 2021. Perhaps her lawyer advised her that filing such a petition would be inadvisable strategically. Perhaps he counseled her that termination would not be in her best interest, from either a financial or health perspective. Perhaps he did not advise her of this option at all. Farrow and Tolentino report that “Several sources close to the situation felt that Ingham was loyal to the conservatorship and to Jamie [Britney Spears’ father], despite nominally representing Spears. Butcher [a Spears family friend] recalled Jamie saying that Ingham reported to him on Spears’ movements and activities.” (Farrow & Tolentino, supra). But at a minimum, it appears from the public record that until quite recently, Britney Spears’ lawyer was not representing her express interests.
We do not know what information the judge had before her when she determined that Britney Spears lacked the capacity to retain a lawyer. But capacity is a fluid concept. It is both contextual—capacity for what purpose?—and fluid. One can have capacity for some purposes (and at some times)—for example, the capacity to make health-care decisions—and not for others—for example, for financial matters. Moreover, capacity is not an objective concept, and its assessment (often by psychiatrists) is not only imprecise but subject to the moral and ethical values of the evaluator.
Even if Britney Spears did not have capacity to hire a lawyer in 2008, might she not have had capacity at some time between 2008 and 2021 to hire her own attorney? (Even though she did not hire Ingham, her estate paid his attorney’s fees during the conservatorship.) But how would she know she could seek to hire an attorney of her choosing unless her court-appointed attorney advised her of that option, especially considering the extent to which the conservators controlled to whom she had access?
What, then, is the minimum level of capacity that a person should have before being able to retain an attorney in a guardianship matter? Although one would need to consult one’s state law on the subject, I submit that the standard should be quite low, given the importance of the right to legal representation of one’s choice as an expression of client autonomy. It should be sufficient for the person to know that there is a pending legal proceeding and, in broad terms, its nature and potential consequences for the person (your parents are seeking to be appointed as your guardian; here’s what that means); that the person will set out her goals in the case (do you oppose the guardianship? do you oppose the choice of guardian?) and communicate those to the lawyer; and that the lawyer will represent the person in that proceeding and will advocate the client’s position (assuming, of course, there is a legal basis for doing so). The person need not understand all of the intricacies involved in a guardianship case, nor be knowledgeable about the specific means the lawyer would use to achieve those goals. In essence, the standard should be similar to the competency determination in a criminal trial, where the defendant is deemed competent if he or she can understand the nature of the proceedings and work with his or her attorney.
Did Judge Goetz apply this standard, or any articulable standard? Because of the secrecy of the proceedings, we have no way of knowing. Because the court identified the basis of neither her decision nor its underlying rationale or supporting facts, there was no way Britney Spears or the lawyers she wanted to retain could challenge the determination. (It is not clear whether Spears or her lawyers were advised of her right to appeal the decision, either on this determination of her incapacity to hire a lawyer, or regarding imposition of the conservatorship more generally.) We have no reason to doubt that the judge was acting in what she thought would be in Britney Spears’ best interests. Guardianship law and practice are rife with paternalistic and over-protective assumptions about people with disabilities and older persons. But given the significant liberty interests at stake, the failure to deploy two of the standard features of the adversary system—the ability to employ a lawyer of one’s choosing to advocate zealously one’s express interests—is difficult to justify. As more and more of the elements of Britney Spears’ conservatorship come to light, including her conservator’s apparent interference with her communications with her lawyer, it is apparent that justice was not served by this intervention in her life.
At this writing, it is not yet clear whether Judge Brenda Penny (who succeeded Judge Goetz on the case) will terminate Britney Spears’ conservatorship. Now that Spears’ long-time counsel has withdrawn, and Judge Penny has permitted her to retain counsel of her choosing (Matthew Rosengart), one can already see some of the results of having a lawyer as a full-throated advocate. Among other actions, Rosengart filed an extensive petition seeking the removal of Jamie Spears as Britney Spears’ co-conservator and indicating his intention to take Jamie Spears’ deposition to explore various aspects of the conservatorship. Jamie Spears subsequently sought to withdraw as co-conservator, and the court has suspended him from this role. It is hard to believe these events would have occurred had Britney Spears’ lawyer not acted aggressively to challenge Jamie Spears’ authority over his daughter.
Eventually, whatever the result of the current legal proceedings, l’affaire Britney will fade from the scene. Nevertheless, the events of this summer have already served as a catalyst to take a closer look at guardianship systems in this country. On September 28, 2021, the U.S. Senate Judiciary Subcommittee on the Constitution held a hearing with the provocative title of “Toxic Conservatorships: The Need for Reform.” On the same day, Senators Collins and Casey introduced the Guardianship Accountability Act, designed to gather information about guardianships and reform guardianship practices and calling for the creation of a National Resource Center on Guardianship that, among other things, would collect and analyze best practices for “ensuring appropriate representation and legal rights for individuals subject to guardianship and guardianship proceedings.” Let us hope that “appropriate representation” will include the right of a person subject to guardianship to choose his or her own attorney, an attorney who will zealously advocate for his or her client. If so, Britney Spears’ struggles will not have been in vain.
