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Conservatorship is a last resort
A Last Resort
It exists for people with some form of dementia who lack any capacity to take care of themselves. The conservator, who controls either the estate on the financial side or the person on the individual side, is supposed to continually look for an exit plan. In Britney Spears' case that was not done, and she stayed in the conservatorship for 13 years.
Weak Court Oversight
Beyond her case, there is a cottage industry of people throughout the country placed into guardianships or conservatorships and losing control. The people who run them theoretically report to a court but do not really report to anybody, and courts are often more passive than they should be.
Restoring Dignity of Risk
Her case raised basic questions: whether someone under a conservatorship can date who they want, eat what they want, and spend money how they want, and whether she would have been kept there for 13 years if she were a man. Her lawyer, Mathew Rosengart, frames the answer as restoring what he calls the dignity of risk to people called wards in New York and conservatees in California. Disability Voices United asked him to advocate for that, and he worked on legislation with them.
Shortly after the case was won, Governor Gavin Newsom passed legislation changing the law and empowering conservatees.
Why do conservators often escape real oversight?
A conservator reports to a judge, but the court often learns what is happening only through the conservator's own periodic accountings. Courts have limited staff to audit them, so problems can go unnoticed for years. In 2010, the United States Government Accountability Office documented cases in several states where guardians stole from or neglected the people in their care. The same report found that no federal agency collected national data on how many adults are under guardianship.
Where does the phrase dignity of risk come from?
The phrase comes from an article by Robert Perske, published in 1972, about people with intellectual disabilities. Perske argued that shielding a person from every risk also takes away chances to grow and to live as others do. Disability advocates later adopted the phrase for adults of all kinds who are under protective arrangements. It now appears in guidance for supported decision-making, an approach in which a person gets help making choices instead of having them made for them.
What changed in California after the case?
In 2022, California enacted Assembly Bill 1663, a conservatorship reform measure signed by Governor Gavin Newsom. Among other changes, it required courts to consider less restrictive alternatives, including supported decision-making, before imposing a conservatorship. The law took effect on January 1, 2023.
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