If Britney were British (or at least English or Welsh)
Britney Spears’ father has stepped down from his role as conservator for the pop star due to his own ill health.
In the United States, a conservator is a person who is appointed by a judge to make decisions about an individual’s day to day life when that person is unable to make the decision themselves due to physical or mental difficulties. The media reports that were two conservatorships in place; one for Britney’s estate (property and finances) and one for Britney herself.
The BBC has reported that after 11 years, Britney Spears’ father has had to step down from his role as conservator for Britney herself due to his own health problems. Britney’s father was appointed in 2008 when Britney was placed in psychiatric care after refusing to relinquish custody of her children. Britney’s father had the power to restrict who Britney had contact with and was also able to communicate with her doctors and access all medical records. The powers have now been transferred to another person to protect Britney. There is conflicting media coverage that her father is still conservator for her estate.
If Britney were British
Strictly speaking, we do not know the specific facts surrounding Britney’s case, however we can provide some useful information on how to protect vulnerable individuals in England and Wales. It is important to note that under English and Welsh law, the Mental Health Act and the Mental Capacity Act are separate.
Under English and Welsh law, an individual can appoint an attorney/attorneys to make health and welfare decisions on their behalf when they are no longer able to make the decision themselves due to lacking capacity. You can appoint an attorney/attorneys to make your health and welfare decisions by creating a Lasting Power of Attorney. Such decisions include where you reside and the treatment you receive. Your attorneys can also liaise with your doctors and access your medical records. You can also appoint an attorney or attorneys to make property and affairs decisions on your behalf, such as investing your money.
It is important that your attorney is someone who knows you well and would be able to make a decision in your best interests, on your behalf, when you are no longer able to make the decision yourself.
A Lasting Power of Attorney for property and affairs can be used as soon as it is registered, depending on how it is drafted and provided the individual consents to the use. Conversely, a Lasting Power of Attorney for health and welfare can only come into force when you lack capacity. Under the Mental Capacity Act, a person is unable to make the decision themselves if they are unable to understand the information relevant to the decision, unable to retain that information, unable to use or weigh that information as part of the process of making the decision, and are unable communicate their decision. Capacity is therefore decision-specific and an individual may have capacity to make certain decisions but not others.
Lasting Power of Attorney
At Coffin Mew we can advise you further if you wish to make a Lasting Power of Attorney for both property and affairs & health and welfare. We can also provide advice and assistance with capacity related matters.
If there is no Lasting Power of Attorney in place and an individual subsequently lacks the necessary mental capacity to make a health and welfare decision, a best interest meeting is held by the relevant professionals and family/friends. If there is dispute as to what is in an individual’s best interest, an application may be made to the Court of Protection to make that specific decision. Such a decision may be who has contact with the vulnerable individual. It may also be appropriate for a Health and Welfare deputy to be appointed where there are a series of complex decisions that need to be made for a person who lacks capacity.
Where a person lacks capacity to manage their property and affairs and there is no Lasting Power of Attorney in place, an application to the Court of Protection is needed to appoint a property and affairs deputy.
Although it is not fully reported, it seems that the conservatorship that Britney’s father has stepped down from, very much relates to Britney’s mental health. It is reported that Britney’s father still retains the conservatorship for Britney’s estate (property and affairs).
Considering Britney’s mental health, under English and Welsh law, compulsory detention under Mental Health Act is entirely separate and being sectioned doesn’t necessarily mean that you lack capacity. Under English and Welsh Law, if an individual is suffering with extreme mental health difficulties and is very unwell, they can be detained under a section of the Mental Health Act 1983 to allow medical staff to examine, assess and treat them without the individual’s consent.
Our decision-specific law under the Mental Capacity Act would still allow Britney to have the career she chooses to, provided she has capacity to make the specific decisions, and English and Welsh case law demonstrates that lacking capacity doesn’t prevent a person from living a full life.
Should you require any further information on the topics raised, please contact a member of the Court of Protection team or fill in the enquiry form.