Spears case raises questions on guardianship
For nearly 13 years, Ryan King was under a guardianship not unlike the legal conservatorship that controls Britney Spears’ life and finances.
King, who works at a Washington, D.C., grocery store, has cerebral palsy, sickle cell disease, a spatial relationship deficit and an intellectual disability. He also has held his job for years, manages his own money, loves sports and cooks dinner for his family three days a week.
Revelations about Spears’ wish to end the conservatorship that has bound her decision-making and finances since 2008 have drawn new attention to legal mechanisms known in many states as guardianships. These arrangements are intended to support people who are incapacitated and incapable of making decisions, and some families say guardianships have protected their loved ones, including relatives in comas or with severe disabilities.
“It is a safety net for those who are both susceptible to financial exploitation and other harm that could come to them,” said Sally Hurme, a board member for the National Guardianship Association, which represents guardians.
But advocates for people with disabilities say guardianships have been used too broadly, including in cases of individuals with psychiatric disorders and developmental or intellectual disabilities who do not require such intense or continuous oversight.
“I should have never been under guardianship, because I was always independent,” said King, 38. “Don’t judge me before you get to know me. Everyone needs help sometimes.”
Once a guardianship has been imposed, it can be difficult to undo. King’s parents, who say they reluctantly sought a guardianship for him in 2003 after being urged to do so by social services workers, attempted to have a judge rescind it in 2007. They say they faced barriers for years, including opposition from a court-appointed lawyer for King in the case.
“Judges are used to putting people in guardianships; they’re not used to letting them out,” said Jonathan Martinis, a lawyer the family eventually hired. The guardianship was finally revoked in 2016.
In Spears’ conservatorship, under which her father and others have overseen her life for the past 13 years, much is in flux: A lawyer representing her asked Tuesday to be allowed to step down, the latest party to resign from the arrangement after Spears called it abusive in a hearing last month.
About 1.3 million people live under guardianships in America, according to a 2018 estimate from the National Council on Disability. They include older Americans who can no longer manage their affairs, but also many younger people, including some with intellectual or developmental disabilities. Studies suggest that the number of people under such arrangements has more than tripled in the past three decades.
Guardianships are often permanent, and are often poorly understood, even by the people who are subject to them. Some states make a distinction between guardianship, with control over all aspects of a person’s life, and conservatorship, with control mainly of financial matters; either type of arrangement can involve a range of levels of control. Under some guardianships, people can lose the right to marry, vote, drive, or seek and retain employment.
Most states require guardianships to be reviewed annually, but critics said those reviews are often superficial and fall short in protecting those under guardianship.
Guardians are selected by the court, not by the person under guardianship. In a majority of cases, family members are appointed to serve as guardians, according to Hurme.
Only 14 states require guardians to obtain some sort of credential for the role, with a majority requiring certification from a nonprofit organization called the Center for Guardianship Certification.
This certification requires guardians to pass a background check, complete up to 30 hours of training, pass an exam and renew their certification every two years, according to Angie Troutman, the center’s certification director, who said the center has certified about 15,000 guardians. A vast majority of them are well meaning, she said.
According to many states’ laws, guardianships are meant to be last resorts after other options have failed. In practice, advocates for people with disabilities say, they are imposed without considering other options.
“It’s a really big deal,” Zoe Brennan-Krohn, a lawyer with the American Civil Liberties Union’s Disability Rights Program, said of imposing guardianship. “But in reality, judges don’t tend to look at it that way. Courts don’t tend to look at it with the care and the scrutiny that you would want.”
Ending a guardianship is extremely difficult in many places, experts said. The process can be expensive and time-consuming, and many people do not know where to begin — nor are they empowered to hire their own lawyer while under a guardianship, according to Morgan Whitlatch, legal director for the nonprofit Quality Trust for Individuals With Disabilities.
Experts say there are less restrictive arrangements that can be used instead of guardianship, including what is known as supported decision-making, in which individuals select trusted advisers to help them understand their decisions.
Some advocates view supported decision-making as a preferable option that protects civil rights while also allowing doctors, bankers and lawyers to accept the decisions of people with disabilities without fear of lawsuits or malpractice claims.
Other less restrictive alternatives to guardianship include a power of attorney, which authorize someone to make certain choices on a person’s behalf for a certain period of time. Another alternative is an advanced medical directive, in which a person lays out a plan for what they want to be done if they should become incapacitated in the future; these are commonly used to create medical treatment plans, and can be helpful for people who experience recurring psychiatric episodes.
A growing number of states have passed laws in recent years that expressly recognize or require supported decision-making as an alternative to guardianship when applicable. Twelve states and the District of Columbia now have such laws, and seven more states have recognized some aspect of supported decision-making.
“I should have never been under guardianship, because I was always independent. Don’t judge me before you get to know me. Everyone needs help sometimes.”
– RYAN KING, WHO WAS UNDER A GUARDIANSHIP FOR 12 YEARS