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What Can Britney Spears Do Next?

A legal expert explains why Britney Spears’ case is so unusual—and what her next steps should be.

People in a crowd hold various signs, many of which are pink, calling for Britney's freedom from the conservatorship.
#FreeBritney activists protest at Los Angeles Grand Park during a conservatorship hearing for Britney Spears on Wednesday. Rich Fury/Getty Images

Britney Spears, who has lived under a conservatorship that controls her finances and personal affairs for more than a decade, spoke out publicly on Wednesday for the first time about the daily humiliations and abuses she said she experienced under the arrangement. At a court appearance, Spears, who has continued to produce music and perform, spoke bitterly of a life that she did not feel was hers: one in which she could not see friends without permission and was forced to perform against her will. She spoke of living on a limited stipend, despite being worth some $60 million, and of being unable to stain her kitchen cabinets. She claimed that she had been forced to undergo psychiatric evaluations, as well as rehab and drug tests. Most disturbingly, she said she was not allowed to have her IUD removed in order to have children. “I want to be able to get married and have a baby,” she said. “I was told right now in the conservatorship I am not able to get married and have a baby.”

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Spears’ father, who serves as her conservator—known as a guardian in other states—has maintained that the arrangement is in her best interest, based on her occasional drug use and other alleged factors that have not been disclosed. But Spears, who has said she did not know until recently that she could petition to end the conservatorship, has accused her father of being abusive and overly controlling. Spears’ obvious distress launched the #FreeBritney movement, which drew wider attention to her situation and led fans from all over to gather at the courthouse to express their support.

To get a sense of just how typical Spears’ case really is, Slate spoke with David English, a professor of law at the University of Missouri who specializes in guardianship law. This interview has been condensed and edited for clarity.

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Slate: Could you describe a typical conservatorship case?

David English: What is unusual about this case is that Britney Spears is in no way the typical individual. The typical individual for a guardian or conservator is an elderly person with dementia who is declining and is no longer mentally capable of making decisions for themselves. Or the second common category is an individual with a severe developmental or intellectual disability. A third category where we sometimes see conservatorships are individuals with schizophrenia, which is disabling. So she is not the typical person at all.

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How does the court typically establish that someone is a good fit for a conservatorship?

The court is not supposed to appoint a conservator unless she lacks capacity to make her own decisions and unless there are no alternatives. Obviously, I don’t know her. But I don’t see how she lacks capacity, based, at least, on informal observation. In a typical case, the patient no longer has capacity to direct their funds to be used to pay the nursing home bill. For developmentally disabled adults, it’s often the school district: The child reaches age 18, and the school district is concerned that the child cannot make decisions for themselves. And so they request the appointment of a guardian, who is typically a parent, to act.

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Spears has made it clear she is miserable and that she doesn’t trust her father. What do you think will happen from here?

There are two avenues. One is to petition to terminate the conservatorship, and the other is to request a different conservator. My understanding is the judge suggested that she file a petition to terminate a conservatorship. And that could be by her [court-appointed] attorney, but she’s in a position, I think, to hire her own attorney. With terminating, it really comes down to: Does she still need a conservator? If this appointment was made in a crisis situation, there may have been a need for intervention at the time the crisis occurred. If that crisis has passed, does she still lack capacity? That’s ultimately the question.

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How does she establish that she has decision-making capacity?

You get a doctor’s report. I would recommend in this case that there be a psychological assessment. That’s not a psychological assessment of mental illness—it’s just the ability to function on a daily basis. And you present that to the court. I don’t have the legal standard in California in front of me, but there is a standard test of capacity. And I have a question in my mind whether she met that test. Or, if she may have met that test then, that doesn’t mean she’s incapacitated currently.

Is there more or less a universal standard of what being capable is?

It varies a little bit state to state, but essentially what it comes down to is your ability to make decisions with respect to daily activities of living.

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Her lawyer did not advise her to speak publicly. She insisted on that herself. Do you think it was a good idea for her to speak out like she did?

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I think that allows the court to see the individual, and the court to make its own assessment of capacity. There may be reasons here it wasn’t a good idea, but as a general matter, I think it’s a good idea.

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There are a few really startling details in this, but the most upsetting one is that she wasn’t allowed to have her IUD taken out. Is it normal for such an arrangement to extend to reproductive issues?

That’s certainly not a normal thing for an adult who appears to have capacity. Someone who might have a severe developmental disability, who’s vulnerable—that might be a different issue. And we only think about that if there is a specific court order authorizing it. But yes, we were surprised, and we are trying to track down if there’s a Missouri law on that subject. It’s beyond the normal conservator’s decisions. There’s a constitutional dimension to this, in controlling someone’s reproductive freedom.

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She also talked of very small things that she had no control over, such as whether she could hang out with a friend. Is that normal?

For some conservators, yes. For many, no. But based on what she said, that’s not a usual case.

Are there other ways the conservatorship varies, other than by the individual guardian?

She has a full conservator, meaning the conservator has all power. There’s also a limited conservatorship, where the conservator would only have some powers. When you’re dealing with wealthy individuals, sometimes the way that breaks down is that the individual retains the ability to make certain decisions, but other decisions, such as managing her bookings or licenses and so on, would be held by the conservator. So that’s another issue: Even if conservatorship is appropriate, why was it a full conservator and not a limited conservator?

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She’s been working all through this conservatorship. Is that common?

Usually they’re not working. They might have inherited family money. And so the conservator is managing the family inheritance.

Is it correct to assume, then, that if you are working, that’s an indication that you are capable enough?

Yes. You’re able to engage in the activities of daily living. We all have the right to make foolish decisions now and then. Otherwise, we should all have conservators. So I don’t know if she’s mismanaged money or what, but she’s got the money, so it doesn’t matter. It’s her money.

At court, she did say that she wanted to sue her family. Is that something she could actually do?

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She’d have to demonstrate some kind of intentional harm against her, or negligence. And, of course, the court-appointed conservator’s actions up to now were approved, so I think that would be difficult for her to do.

When it comes to people who have significant wealth, are there any specific provisions in place? What happens when the person is wealthy?

Usually they’re older, and they plan in advance for possible incapacity. So they have their assets in a trust, and they sign a power of attorney for someone to step in if they can’t make decisions. One of the things a court is supposed to consider is if there are any alternatives before appointing a conservator. And so among the very wealthy, conservatorships are not all that common, because usually the person has planned in advance. So she’s unusual. I mean, she was in her late 20s when this happened.

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What could she have done to avoid this situation?

It’s hard to get people to do estate planning when they’re 75, much less 25. But probably the best thing for her to have done would be to put her assets in a trust and have signed power of attorney in advance to somebody you can trust. For some individuals, family members are the worst choice. But in a conservatorship, it ends up being the court that decides.

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Is it common to have cases like these where the person claims the arrangement is abused?

It happens. If you were to speak to protection and advocacy agencies, they could give you stories about individuals with developmental disabilities. If you speak to an ombudsman at a nursing home, they could give you stories about nursing home patients whose lives are controlled in great respect by the guardian or conservator.

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What are advocates pushing for to protect against abuse?

Their major issue is the courts need to pay more attention to the issue. And probably better funding at the court level. We can modernize the law and improve protections, but then there’s often a gap between the law and reality. And conservatorships are often appointed when they really aren’t necessary. Or maybe they didn’t look closely enough at alternatives, or didn’t take the position that conservatorship should be a last resort. And that’s one of the concerns I have here. Was this the only option? Was it a temporary crisis for which a permanent solution was used?

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You would think that someone famous and well-connected could avoid abuse. Is it harder for people who don’t have her kind of resources?

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We’ve had discussions in Missouri about this. You do have cases where perhaps the original conservatorship appointment was appropriate, but the person recovered—people with brain injuries, for example. Yes, the law gives the individual the right to petition to terminate the conservatorship. But unless the conservator agrees to go along, it’s a real challenge. They don’t have control over their own buying. They don’t have funds to hire an attorney. Say you’re in a facility, or in rural Missouri. Where do you find an attorney? It does require an attorney. So, as a practical matter, it’s almost impossible for some people to file a petition.

Do you have any final thoughts on Spears’ situation?

This case goes back almost 10 years. I was surprised by the original appointment. I couldn’t understand why it was made. That was 10 years ago. And I’m surprised today why it’s still in force.

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