#FreeBritney: What are Conservatorships? Does the UK have Conservatorship’s too?
What are conservatorships? Does the UK have them too? A short answer: yes. Yes, we do. However, they are called deputyships and there are some slight differences that will be explained in this blog. This blog will also explore the role of a deputy and investigate alternatives.
What is a conservatorship?
In American law, a conservatorship describes a legal guardianship arrangement where a court-appointed guardian manages the financial affairs or daily life of an individual due to their physical or mental limitations or old age.
In Britney’s case, following hospitalisation in a psychiatric ward in 2008, the singer was put under temporary conservatorship with her father, Jamie Spears, acting as co-conservator alongside attorney Andrew M Wallet. The temporary conservatorship was then extended, and extended again, and was eventually made permanent in October 2008 which gave Jamie indefinite control over his daughter’s estate, which was estimated to be valued at around $59m at the time.
Are there UK parallels?
As aforementioned, we have similar structures in the UK too. You may have heard about Lasting Powers of Attorney or a Court of Protection Deputyship Order, sometimes known as a COP or a deputyship. The most similar arrangement is a deputyship. In order to obtain a deputyship on someone else’s behalf, a deputy would need to apply to the Court of Protection.
Who are the Court of Protection?
The Court of Protection is the body within the courts’ system who,
“Makes decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made (they ‘lack mental capacity’).”
Deputyships are only available when someone lacks mental capacity. For instance, someone with an illness affecting brain function, learning difficulties, or who has experienced a severe brain injury. Dementia and Alzheimer’s are common reasons for deputyship applications.
An application for a UK deputyship is far more restricted than for a US conservatorship; when deciding to grant the application, the court must adhere to stringent rules under the Mental Capacity Act (2005)
Every adult must be assumed to have capacity unless proved otherwise;
An adult must be offered all possible help before they are considered unfit to make decisions;
A person has the right to make unwise decisions and should not lose this right;
Any decisions made under this act must be done in the individual’s best interest;
Anything done for the person should be the least restrictive of their basic rights and freedoms.
Leading with these principles, the legal system attempts to reduce the potential for abuse of the most vulnerable in society.
What do deputies do?
In the UK, there are property and financial affairs deputies and also personal welfare deputies. Essentially, welfare deputies are appointed to make decisions relating to health care, such as hospital treatment and deciding whether or not to place someone into care, while financial deputies are appointed to make decisions relating to money, including selling and acquiring new assets.
What are the differences between deputyships and conservatorships?
While deputies in the UK can be close friends or family, typically, financial deputies for larger estates are professionals who are appointed for their background and experience in managing financial matters. Therefore, if Britney Spears was under a deputyship in the UK, it is likely that an experienced financial professional would have been appointed to manage her estate, as opposed to her inexperienced father, particularly when considering the value of the estate.
Aside from the desired background, a deputy should have, there is a system of checks and balances to ensure deputies cannot abuse their powers. They must send an annual report to the Office of the Public Guardian (OPG) to explain the decisions they have made in relation to their duties throughout the year. Deputies can also be reimbursed for legitimate and reasonable expenses such as travel, but anything exceeding £500 must be accounted for and explained. If an expense is found to be unreasonable, it must be repaid to the OPG and may result in the removal of the deputy. The money exchanged with the guardians is probably the most significant difference between the UK deputyship and the US conservatorship. UK deputies are not entitled to remuneration unless authorised by the OPG, while US conservators are entitled to charge a percentage of the individual’s assets; for example, Britney’s conservators took a percentage of her income in addition to a salary, taking remuneration similarly to how a director-shareholder of a business would.
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So what are Powers of Attorney?
If you haven’t come across a deputyship, you may have at least heard of Powers of Attorney, which you might have thought sounds quite similar to a deputyship and, by extension, a conservatorship. A Power of Attorney can either be a lasting power (LPA) or an enduring power, but it is no longer possible to set up an enduring power of attorney.
Whether you are an attorney, conservator, or deputy, you will be responsible for managing the property and financial affairs or the health and welfare of someone who lacks the capacity to manage these affairs for themselves, however, there are a few differences to consider.
Power of Attorney |
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Capacity
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The LPA is set up by the individual, whose affairs the attorney is responsible for when they still have capacity; It is a precaution taken should they lose capacity in future.
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Process
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Anyone over the age of 18 can be appointed as an attorney and can be registered between 8 and 12 weeks.
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Due diligence/safeguards
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There is no need to report an attorney’s actions each year, moreover, there is no obligation to take out insurance as an attorney. However, you have control over who becomes the attorney, hence it is possible to appoint an insured professional such as a solicitor which can provide another layer of protection.
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Why create an LPA?
Creating an LPA can be a good precaution for anyone to take – it means that you can have complete control in deciding who would take over your affairs should the worst happen and you find yourself lacking capacity following unexpected, life-changing accidents or developments in later life.
LPAs can cover your welfare and financial affairs in multiple ways including your business affairs. For instance, say a businessperson who acts as the chairperson in a company suffers a stroke and no longer has the capacity to make decisions in the business, if they had an LPA in place that deals with who acts on their behalf should this occur, their business would be able to continue functioning with the attorney acting in their stead. Whereas, if no LPA had been executed, a deputyship order would have to be sought which can be expensive and time-consuming, resulting in difficulty, both for the business, for the businessperson, and for their deputy.
At Nicholls Law, we have in-depth experience advising on LPAs & COP and the appointment of attorneys & deputy’s, as well as acting as attorney or deputy for individuals who have executed an LPA. We can help those who want to ensure their affairs are kept in order when life develops in unexpected ways through the implementation of both personal and business LPAs.
Sources
https://blanchardslaw.co.uk/britney-spears/#:~:text=A%20harrowing%20and%20upsetting%20watch,for%20the%20last%20twelve%20years.
https://www.pedestrian.tv/entertainment/britney-spears-net-worth/
https://www.law.ac.uk/about/press-releases/free-britney-conservatorship/
*Notice: This blog does not constitute legal advice*