Mikala Bolmer, DRM Intern, Student at University of Maine School of Law
Britney Spears’ high-profile, protracted, legal battle contesting her conservatorship (known as guardianship in Maine) sheds light on the role of conservatorship/guardianship as an excessive limit on people’s individual freedom.
I need to make mistakes just to learn who I am
And I don’t wanna be so damn protected
There must be another way
‘Cause I believe in taking chances
-“Overprotected,” Britney Spears (2001)
In theory, guardianship is meant to legally support and safeguard an individual. It is an extreme option that is designed to be a last resort when all other, less-restrictive options (such as Supported Decision-Making) are not possible. A guardian is a fiduciary, which means the guardian must have the individual’s best interests at heart and help them live a safe, yet fulfilling life. However, guardianship has been overused, and people who are capable of running some or all aspects their own lives have been placed under full guardianship simply because of a developmental disability or mental health diagnosis. As a result, guardianship strips otherwise capable individuals of legal authority, decision-making power over their lives, and the “dignity of risk.” Dignity of risk is the concept that there is dignity gained by people taking reasonable risks and learning from mistakes. Low-level risks are a natural, colorful part of a full life, and without them, people miss crucial character- and independence-building opportunities to navigate issues of consent or to learn decision-making skills. While some individuals may benefit from extra support, in most cases granting full guardianship is not the best option. Unfortunately, obtaining court-granted, full guardianship happens quickly and frequently.
Lately, people got me all tied up
There’s a countdown waiting for me to erupt
Time to blow out
I’ve been told just what to do with it
-“I Wanna Go,” Britney Spears (2011)
Sometimes guardianship is granted in a moment of crisis, as Ms. Spears’ conservators claim was her situation, when an otherwise capable adult needs some temporary support. Sometimes guardianship (or conservatorship) truly is temporary. In far too many cases, though, guardianship turns into a permanent legal arrangement that is nearly impossible to get out of because of financial, administrative, and legal barriers.
Everybody’s talking all this stuff about me
Why don’t they just let me live? . . .
I don’t need permission, make my own decisions
That’s my prerogative
-“My Prerogative,” Britney Spears, originally by Bobby Brown (2004)
Too often, individuals with developmental disabilities go under guardianship as the “logical” next step when they reach 18, the age of legal majority. Youths with developmental disabilities are regularly funneled by schools and other providers into guardianship as they become adults. Individuals are consistently not given full explanations of what guardianship is, and they are not presented with less restrictive alternatives. As a result, guardianship is usually “agreed upon by everyone” including the individual who will be under guardianship. When “everyone is in complete agreement,” petitions for guardianship are uncontested, meaning the people who will be under guardianship are likely unrepresented by legal counsel for the court proceeding, and the courts routinely grant guardianship. Typically, as Ms. Spear’s case illustrates, getting courts to order guardianship into existence is far easier than getting courts to terminate one.
I’ll tell ’em what I like, what I want, and what I don’t
But every time I do, I stand corrected
-“Overprotected,” Britney Spears (2001)
In Maine, there are significant barriers to termination. Often, the person under guardianship receives conflicting information or are drastically underinformed about their rights and legal options. Not to mention the power the guardians themselves have over the person and process: the guardians have all legal, medical, and financial authority over the person under guardianship. Guardians can control an individual’s access to medical records, which the person under guardianship must present to argue the case for termination. Ironically, individuals who have been denied the opportunity to make their own decisions bear the burden of proving in court that they are capable of making their own decisions in order to end guardianship. Although Ms. Spears’ case is extreme, unusual and out of state, it serves as a stark example of how backwards and unfair the system can be: because she is contesting her father’s “management” of her finances (among other things,) she pays for her own attorney as well as her father’s. Many guardianships involve some complex tangle of legal, medical, and financial interests that obstruct or stagnate attempts to terminate.
She’s gonna pack her bags
She’s gonna find her way
She’s gonna get right out of this
-“Brave New Girl,” Britney Spears (2003)
Therefore, once guardianship is granted, it’s common for individuals to find themselves in Ms. Spears’ situation of petitioning for termination for years without recognition, sometimes despite gross violations and abuses perpetrated by the guardians. Some individuals are able to work with legal organizations, such as Disability Rights Maine, who are willing to help. However, those legal organizations have limited resources and so are not able to help with as many termination cases as they would like.
I am better off without you
Stronger than ever and I
I’m telling you now
-“Don’t Go Knocking on My Door,” Britney Spears (2000)
In most cases, obtaining full guardianship is like using a sledgehammer on a thumbtack – excessive and not the best option. Meaning, full guardianship is not the only way to support people with decision-making challenges. There are several less-restrictive alternatives to full guardianship for individuals and their families to consider, such as a Supported Decision-Making (SDM), assistive technology, powers of attorney, or limited guardianships. SDM is a model to support people with decision-making challenges in making and communicating their own decisions about their lives. SDM and other alternatives to full guardianship give individuals more control, freedom, and life experience to make their own decisions.
She needs to really, really find what she wants
She lands on both feet, won’t take a back seat
There’s a brave new girl, and she’s coming out tonight
-“Brave New Girl,” Britney Spears (2003)
As Ms. Spears’ case highlights, using guardianship as the sole tool to support people in making decisions is too frequently “not that innocent.” For more information on Supported Decision-Making and other alternatives to guardianship, please see www.supportmydecision.org.