When Protection Becomes Control

By Lisa Ann Sharpe, JD

A Cautionary Tale:

For more than a decade, the world watched as Britney Spears — one of the most famous pop stars on the planet—lived under a conservatorship that stripped her of control over her personal life, finances, and career. While conservatorships are intended to protect vulnerable individuals, Britney’s case became a cautionary tale about how these legal arrangements can be misused. The #FreeBritney movement highlighted the potential for abuse, excessive control, and the struggle to regain autonomy, sparking nationwide debates and even prompting legislative reforms.

Her case wasn’t unique — it was just the most public. Across the country, families, attorneys, and courts grapple with the delicate balance between protecting individuals who cannot manage their affairs and respecting their fundamental rights. And yet, despite the increased scrutiny on conservatorships, only one state—Washington State —has fully adopted the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA) to modernize and standardize its laws.

Examples of Situations Where a Conservator or Guardian Might Be Necessary in Family Law

• A 45-year-old business owner suffers a traumatic brain injury in a car crash and is unable to pay family bills or make sound financial or medical decisions.
• A 30-year-old man with schizophrenia refuses medication, stops taking care of himself, and is at risk of self-harm.
• A 65-year-old executive suffers a massive stroke that leaves them unable to speak or make financial decisions.
• A 40-year-old father with a heroin addiction loses his job, stops paying bills, and is at risk of losing the family home.
• A mother in the middle of a divorce suffers a severe psychiatric episode that leaves her unable to care for her children.

Guardian vs. Conservator: What’s the Difference?

The terms guardian and conservator are often used interchangeably, but they refer to different legal roles in managing the affairs of someone who is unable to care for themselves. The key distinction lies in what aspect of a person’s life each role is responsible for:

• A guardian makes personal and healthcare decisions for an incapacitated person.
• A conservator manages financial and legal affairs.
• Some individuals may require both a guardian and a conservator, while others may need only one.

10 Essential Tips for Attorneys in Mental Health and Conservatorships

1. Stay Informed on Legislative and Policy Changes

Conservatorship and guardianship laws are evolving, especially in light of high-profile cases that have sparked reform. Stay up to date on legislative developments and new legal standards that could impact your clients.

2. Assess the True Need

Before seeking a conservatorship or guardianship, explore less restrictive alternatives such as powers of attorney, or supported decision-making agreements. A conservatorship should be a last resort, not a first step. In most states, there is a legal presumption of capacity—meaning that adults are presumed to be capable of making their own decisions unless proven otherwise.

3. Understand the Different Types of Conservatorships

Conservatorship laws in the United States are governed at the state level, leading to significant variations in terminology, procedures, and standards. Know the distinctions between general and limited conservatorships, temporary and permanent ones, and conservatorships of the person versus the estate. Each serves a different purpose and has specific legal requirements. Washington, as the only state to fully adopt the UGCOPAA, explicitly reinforces the presumption of capacity and requires courts to explore less restrictive options before imposing a conservatorship.

4. Prioritize the Conservatee’s Rights

Courts are increasingly scrutinizing conservatorships to prevent unnecessary restrictions on personal freedom. Ensure due process protections, including notice, representation, and the conservatee’s right to contest the appointment.

5. Gather Strong Medical and Expert Evidence

A conservatorship or guardianship often hinges on medical and psychiatric evaluations. Obtain comprehensive reports from treating physicians, mental health professionals, and financial experts to demonstrate the need for a conservatorship.

6. Be Prepared for Family Conflict

Family members may have competing interests, including financial motives, resentment, or disagreements over care. Anticipate disputes and be ready to mediate or litigate issues, as necessary.

7. Monitor

Once appointed, conservators and guardians must act in the best interest of the conservatee. Attorneys should educate clients on their fiduciary duties, reporting requirements, and potential liabilities.

8. Advocate for the Least Restrictive Measures

Courts prefer conservatorships that allow individuals to retain as much independence as possible. Propose tailored solutions that permit autonomy in areas where the conservatee can still make informed decisions. For example, in Washington State, the court must review the demonstrated needs and limitations of the respondent and issue orders that will encourage development of the respondent’s maximum self-determination and independence.

9. Keep an Eye on Financial Mismanagement and Abuse

Conservatorships can be exploited for financial gain. Attorneys must ensure proper oversight, regular accounting, and safeguards to prevent misuse of the conservatee’s assets.

10. Review and Seek Modifications When Needed

Mental health conditions can improve, and some conservatorships or guardianships may no longer be necessary. Periodic reassessments and motions to modify or terminate the conservatorship or guardianship should be considered when appropriate.