AB-1663: Reforming California Probate Conservatorship Law

/ Conservatorship Law / By

Danielle Barber*1

I. Introduction

“I’ve been in shock. I am traumatized. . . . I’m not lying. I just want my life back.”2 In recent years, under the microscope of social media, conservatorship law has become a popular point of public discourse. Probate conservatorship laws have been facing greater scrutiny, with many questioning present loopholes that leave room for abuse within state legal systems.3 Furthermore, the start of the Coronavirus pandemic in 2020 sparked delays and cancellations for in-person court hearings, raising concern for those petitioning for the reevaluation and termination of their conservatorships. Highly publicized instances of probate conservatorships, most notably the case of pop star Britney Spears, have been used as primary examples of the existing flaws in California conservatorship law. Spears’ experience within the California court system has received widespread media attention, with many accusing her father, Jamie Spears, of abusing his rights as a conservator.4 Beginning in 2008, her thirteen-year-long conservatorship was catapulted into the spotlight once again, after many began to call for its termination under the #FreeBritney social media movement. Spears’ conservatorship was terminated in November of 2021. As a result, Spears has since regained control of many personal and financial freedoms within her life from which she had been previously barred while under her conservatorship.5

This Note will analyze different forms of legal guardianships and conservatorships, present California conservatorship law, and the case of Britney Spears’s conservatorship, which has sparked national conversation about what can be done in the face of legal negligence.6 In the wake of Ms. Spears’s terminated probate conservatorship, lawmakers such as California’s Brian Maienschein have been inspired to take action. On January 29, 2022, Maienschein proposed Assembly Bill 1663, or The Probate Conservatorship Reform and Supported Decision-Making Act.7 This bill aims to prioritize less severe alternative routes when dealing with probate conservatorships and their case-by-case provisions.8 Additionally, the bill will attempt to aid conservatees in having more autonomy and a greater say in personal and financial matters.9 Ultimately, this Note will argue for the passage of the proposed Probate Conservatorship Reform and Supported Decision-Making Act, as it offers a more comprehensive and logical approach to the problem of conservatees losing their individual rights within the California State Legislature and on a national scale.

On the technical side of this issue, ‘guardianship’ is the legal process by which the court appoints a third party to become the primary decision-maker for an individual who has been deemed incapable of managing their own personal matters.10 Guardianships are put in place as a means of protecting an individual from making decisions that would be considered harmful to themselves or others.11 Conservatorships are similar to guardianships, but traditionally, an individual that is appointed as a ‘conservator’ monitors the financial affairs of the subject of the conservatorship, or the conservatee.12 It is common in certain states, including California, for the terms “conservator” and “guardian” to be used interchangeably.13 Currently (2022), there are loopholes present in California’s conservatorship law which have, in some cases, enabled financial or personal abuse of conservatees. Some may argue that an individual’s right to due process can be impeded while under a conservatorship.14

If an individual is placed under a conservatorship, it is most likely a probate conservatorship. Common circumstances under which an individual is placed under a probate conservatorship include elderly citizens no longer being capable of making personal or financial decisions due to cognitive or physical decline or younger individuals being physically or mentally impaired to a degree that requires intensive supervision. The ultimate goal of placing an individual in a conservatorship is to ensure that healthy and responsible choices are being made on their behalf.15 Additionally, probate conservatorships are often approved by the court for individuals who qualify for ‘limited conservatorships,’ those who are determined to be intellectually or developmentally disabled, and those who are put under ‘temporary conservatorships.’16 When under a probate conservatorship, the appointed conservator can determine where the conservatee lives, where and how much they are able to work, how they must allocate their financial resources, and with whom they can maintain personal relationships (visitation).17

If a conservatorship is not probate, it is a Lanterman-Petris-Short (LPS) conservatorship. When an individual is under a LPS conservatorship, they are most likely deemed incapable of managing their personal or financial affairs due to a mental health-related crisis.18 In this case, a conservator can require the conservatee to be admitted to a psychiatric hospital or institution of the like, without the consent of the conservatee if necessary.19 Under this form of legal framework, and when examining law that deals with an impaired or disabled party, there is a heightened potential for individuals to be neglected, or for fraudulent behavior to occur. When dealing with a party that may be incapable of defending their own rights within a conservatorship, it is imperative that they are protected by the courts, and by proper legislation, without any forms of legal lacunae.

II. Present Conservatorship Law

California’s current conservatorship laws are quite uniform in relation to other states. First, when requesting a conservatorship be put in place, the courts must be provided with substantial evidence, not solely isolated instances of personal or financial neglect, in order for it to be approved.20 Though the courts place an individual in a conservatorship solely with the conservatee’s well-being in mind, the relinquishment of personal liberties to some degree is implicated through the process. The courts attempt to recognize this sacrifice and only grant conservatorships when necessary. When a case is presented before the California courts, it is required that alternative routes are explored before an individual is placed in a conservatorship.21 Generally, the potential conservatee is evaluated to determine the extent of their decision-making abilities.22 Should this individual be deemed able, they are subject to alternate forms of assistance, such as joint financial accounts, direct or automatic forms of payment/deposit, or shared email addresses.23 With these modes of financial assistance in place, an individual can be an active participant in their monetary affairs, yet also receive any form of assistance necessary for their specific situation. These scenarios are ideal examples of how conservatorship policies should be helping disabled citizens.

Though many cases pertaining to conservatorship law work in favor of the conservatee, there are frequent instances of maltreatment and abuse within the system. Most cases of abuse in conservatorships or guardianships go unnoticed and unreported, since they are not often high-profile like Spears’ case. Very commonly, though there are proper court processes that are meant to take place before an individual is placed in a conservatorship, these can be rushed under particular circumstances, leaving room for error. Emergency conservatorships are put into place––along with temporary conservatorships––in which the consent of the conservatee and the means of evaluating their decision-making capacity may have been unclear: “sufficient data are not available to determine the incidence of abuse of incapacitated people by guardians . . . nor the extent to which guardians . . . are protecting incapacitated people from abuse.”24 

Once in such a situation, a conservator could potentially influence a vulnerable or disabled conservatee to make financial decisions that are beneficial for the conservator. If a conservatee is impaired, a conservator has a far greater ability to make financial decisions without the knowledge of the conservatee. Along with these financial abuses, conservatees may not be properly taken care of when placed in a conservatorship. This leads many to believe, both within the legal world and society as a whole, that there is much room for improvement within this field. State legislators are being urged to take preventative action against situations such as these.25 

One example of the failure of California conservatorship law is the case of Britney Spears. Following a public mental health episode in 2007, Spears’s case was brought before the courts in early 2008.26 It was determined that Spears was unable to participate in the legal proceedings or give informed consent.27 Furthermore, her capacity to make stable financial choices, retain counsel, and make responsible decisions in relation to her personal and medical affairs was also evaluated.28 Following these steps, James Spears was appointed as the temporary conservator of Ms. Spears and co-conservator of her estate.29 Though Ms. Spears was not barred from meeting with her court-appointed attorney, James Spears reserved the right to approve or deny the location of these meetings, and appoint proper security, under the premise of protecting the conservatee.30 Additionally, Mr. Spears was granted the power to be present at these meetings with his personal attorneys.31 He also reserved the ability to limit visitation in any capacity, appoint Ms. Spears caretakers, who could be present up to twenty four hours a day, seven days a week,32 and to make medical decisions on the behalf of the conservatee.33

Though these amendments were deemed necessary for the personal case of Britney Spears, there were many flaws to this arrangement, demonstrated throughout the course of the conservatorship. In 2019, her finances were evaluated by the court, due to growing suspicion that Mr. Spears spent her money without the consent of Ms. Spears, both for personal uses and to pay legal fees, which were supposedly authorized by the court for him to spend.34 Along with this, she announced an indefinite period of break from her work around this time.35 Ms. Spears began to garner concern from others, posting strange photos and videos on her Instagram platform of around 40 million followers. The posts show the pop star pacing back and forth in varying outfits, coupled with cryptic captions insinuating her discomfort.36 The pop star’s social media platforms seemed to be her only outlet that didn’t go through serious vetting from her public relations team; her strange behavior resonated with many as a call for help.37 

The culmination of these events sparked much public speculation about her health, and whether her conservatorship was conducive to her well-being and serving its intended purpose. Many began to criticize James Spears, accusing him of keeping his daughter under such conditions in order to maintain control of her financial assets.38 Fans were prompted to spread awareness about Spears’s case, and advocate for her liberation under the hashtag #FreeBritney. Within this movement, activists aimed to highlight the flaws of the conservatorship system, more specifically the inability of many conservatees to voice their displeasure with the progress of their conservatorship. Large protests were organized in Los Angeles, most commonly outside of the Stanley Mosk Courthouse, where the majority of the recent proceedings occurred.39 Seemingly after the newfound popularity of her cause, Britney’s case was reintroduced into the courts for re-evaluation.40 In June of 2022, Ms. Spears appeared in court via telephone. She testified, publicly sharing her experiences throughout the conservatorship. Explaining how she felt “traumatized” to Judge Brenda Penny, she emphasized her desire for the testimony to be “open,” and for her words to not be filtered or her hearing to be cut short. Ms. Spears’s testimony continued; her speech was rushed, as Judge Penny requested for her to slow down multiple times.41 Her language indicated that coercion and intimidation were used to ensure her complacency throughout the course of her conservatorship. Spears also directly criticized the California court system, stating, “I don’t think how the state of California can have all this written in the court documents from the time I showed up, and do absolutely nothing.”42

A case such as this is a product of flaws present in California conservatorship law.43 Due to the public status of Ms. Spears’s life and eventually her conservatorship, those who followed the proceedings used her situation to highlight the possible consequences of legal inaction. More often than not, conservatorships and guardianships are effective in providing protection of an individual and their assets while they are in an impaired state, whether temporarily or indefinitely.44 Although this is true, the margin of error that pervades this field of law is far too large; within these legally approved arrangements, there are substantial instances of physical abuse, medical negligence, and financial manipulation. According to the United States Government Accountability Office, roughly 5.4 million dollars were stolen from conservatees over the course of twenty years, between 1990 and 2010.45 Statistics such as these may remain unreliable, as abuse such as this is rarely reported or documented.46 These flaws in the legal system may raise larger, constitutional questions, including whether present conservatorship and guardianship law infringes upon the right to due process.47 

III. Current Changes

In January of 2022, motivated by Ms. Spears’ case and the long-term history of abuse within the system, law-makers sought to reform conservatorship and guardianship policy. California State Assemblyman Brian Maienschein proposed Assembly Bill 1663, known as The Probate Conservatorship Reform and Supported Decision-Making Act.48 Though it is reminiscent of pre-existing conservatorship law, it intends to strengthen or clarify certain legal gray areas that may result in abuse or neglect. First, it would ensure that the Director of Developmental Services is appointed via the court on a case-by-case basis, given the observation of the previously established order of preference.49 The proposal inhibits a regional center from stepping in as a designee of the director, but prohibits them from stepping in as a conservator themselves.50 The only plausible circumstance under which the director would be appointed as conservator would be if the conservatee in question had no preference or previously identified an individual that they would prefer as conservator.51 Assembly Bill 1663 would require the court to procure a list of rights and viable options available to the conservatee.52 Another provision of this law would require court investigators to more frequently conduct assessments of the conservatee’s condition and to reevaluate the effectiveness of the conservatorship.53 Furthermore, the courts would be required to grant any uncontested petitions for termination, under certain circumstances, without needing to hold a hearing.54

Along with these specific enumerated amendments and provisions, the Judicial Council will be required to establish alternatives to a conservatorship, including specific programs that promote options like “supported decision-making” for able individuals.55 Supported decision-making is a process in which an individual is largely incorporated in the process of making personal and financial decisions, with the assistance of trusted adults of their choice.56 This arrangement could be actualized in written form or under less formal circumstances.57 The individual in question reserves the right to terminate the arrangement, including in instances of suspected abuse or neglect.58 With the passage of this bill, a centralized Supported Decision Making Technical Assistance Program would be necessary. This program would offer education, support, and many forms of assistance in relation to the supported decision-making process.59

IV. Conclusion

Passage of Assembly Bill 1663 would serve as a major advancement in the field of conservatorship and guardianship law. Before high-profile cases were given media attention, these laws were more or less stagnant. The prospect of re-evaluating cases of conservatorship may seem daunting for conservatees; Assembly Bill 1663 would provide alternative, less invasive pathways for those in need of assistance, and it would aid those who desire for their case to be re-examined. Though conservatorships are largely helpful in the world of elder and disability law, current legislation permits far too many opportunities for disabled individuals to be taken advantage of.

On a larger scale, the implementation of legislative change and reform within the state court systems will contribute to the prevention of conservatorship abuse. Through processing these cases and petitions for termination more closely, spreading awareness of conservatorship abuse and neglect, and raising concerns about the loopholes still present in the law today, conservatees will be able to advocate for their own decision-making abilities with greater ease. Looking forward, the potential for a comprehensive and inclusive approach is substantial. Implementing plans such as the Supported Decision Making Technical Assistance Program will help conservatees retain their personal rights and set a precedent for conservatorship law throughout the country.

  1. *B.A. Candidate for Political Science and Spanish, Fordham College at Rose Hill, Class of 2025. Thank you to the FULR Editorial Board, my friends and family, and most importantly my Dad.
  2. Reporter’s Transcript of Proceedings 14:8–9, 16:26, In re the Conservatorship of Britney Jean Spears, Conservatee, No. BP 108870 (Sup. Ct. of CA for L.A. County June 23, 2021) (wherein Britney Spears addresses the court and Judge Brenda Penny, sharing her personal experiences throughout her conservatorship).
  3. Griff White & Mark Berman, Long after the courts shut down for covid, the pain of delayed justice lingers. The Washington Post (Dec. 19, 2021), https://www.washingtonpost.com/national/covid-court-backlog-justice -delayed/2021/12/18/212c16bc-5948-11ec-a219-9b4ae96da3b7_story.html.
  4. Tomás Mier, They Helped Free Britney. Now They Want Justice., Rolling Stone (Jan. 28, 2022), https://www.rollingstone.com/music/music-features/freebritney-whats-next-1291469/.
  5. Id.
  6. Id.
  7. Cal. Legis. Assemb. Bill 1663, § 2.416.9 (2022).
  8. Id.
  9. Cal. Legis. Assemb. Bill 1663, § 16.10.3950.a (2022).
  10. Guardianship, New York State Unified Court System (Oct. 13, 2021), https://nycourts.gov/courthelp/Guardianship/index.shtml.
  11. David Godfrey, Using Alternatives to Guardianship to Defend Against or Terminate Guardianship, National Center on Law & Elder Rights (Dec. 2021), https://ncler.acl.gov/getattachment/Legal-Training/ upcoming_event/Alternatives-to-Guardianship- Ch-Summary.pdf.aspx?lang=en-US.
  12. Mier, supra note 3.
  13. Godfrey, supra note 10, at 1.
  14. Susan G. Haines & John J. Campbell, Defects, Due Process, and Protective Proceedings, 2 Marquette Elder’s Advisor 13, 20 (2000).
  15. Cal. Prob. Code § 3.1.1003 (1990), ​​https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=4.&title=&part=3.&chapter=1.&article=1.
  16. Id.
  17. Id.
  18. Id.
  19. Id.
  20. David Godfrey, Assessing Legal Capacity: Strategies For an Elder-Rights-Centered Approach, National Center on Law & Elder Rights (Apr. 2021), https://ncler.acl.gov/getattachment/legal-training/upcomin g_event/Capacity-Assessment-Ch-Summary.pdf.aspx?lang=en-US.
  21. Godfrey, supra note 10, at 1.
  22. Cal Prob. Code § 2.17.810-313 (1996), https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=810.
  23. Godfrey, supra note 10, at 3.
  24. U.S. Gov’t Accountability Off., GAO-04-655, Guardianships: Collaboration Needed to Protect Incapacitated Elderly People 30 (2004).
  25. Erika F. Wood, State-Level Adult Guardianship Data: An Exploratory Survey, American Bar Association Commission on Law and Aging 6 (Aug. 2006), https://ncea.acl.gov/NCEA/media/docs/archive/State-Level-Guardianship-Data-2006.pdf.
  26. Spears’ case was brought before the Honorable Reva Goetz in the Superior Court of California for the County of Los Angeles. The case was filed on February 4, 2008 with the case number BP-108870.
  27. Upon evaluation by J. Edward Spar, M.D., Ms. Spears was unable to retain counsel and therefore unable to participate in court proceedings. Order Extending Temporary Letters of Conservatorship of the Person at 3-6, In re the Conservatorship of the Person of Britney Jean Spears, Case No. BP 108870 (Sup. Ct. of CA for L.A. County Feb. 6, 2088).
  28. Id. James P. Spears was granted specific and additional powers.
  29. Petition for Appointment of Temporary Conservator of the Person and the State at 1-2, In re the Conservatorship of the Person of Britney Jean Spears, Case No. BP 108870 (Sup. Ct. of CA for L.A. County Feb. 4, 2008).
  30. Order Extending Temporary Letters of Conservatorship of the Person at 3-6, In re the Conservatorship of the Person of Britney Jean Spears, Case No. BP 108870 (Sup. Ct. of CA for L.A. County Feb. 6, 2088).
  31. Id.
  32. Id.
  33. Petition for Appointment of Temporary Conservator of the Person and the State at 1-2, In re the Conservatorship of the Person of Britney Jean Spears, Case No. BP 108870 (Sup. Ct. of CA for L.A. County Feb. 4, 2008).
  34. Eleventh Account Current: Report of James P. Spears, Conservator of the Estate: Petition for its Settlement and for Approval Thereof, In re the Conservatorship of the Person of Britney Jean Spears, Case No. BP 108870 (Sup. Ct. of CA for L.A. County Oct. 7, 2020).
  35. See Timeline, FreeBritney.net (2021), https://www.freebritney.net/timeline (providing a timeline of Britney Spears’ public mental health struggles and conservatorship); Britney Spears Announces ‘Indefinite Work Hiatus,’ Cancels Las Vegas Residency, N.Y. Times (Jan. 4, 2019), https://www.nytimes.com/2019/01/04/arts/music/britney-spears-cancels-vegas-residency.html.
  36. Eileen Reslen, 10 clues Britney Spears posted that fans thought were a cry for help, Page Six (Jun. 25, 2021), https://pagesix.com/article/10-posts-britney-spears-fans-thought-were-a-cry-for-help/.
  37. A video of Britney Spears pacing in front of a camera, modeling different outfits, with the caption “this is my favorite song off of @billieeilish’s album !!!! Towards the end of this video I’m wearing the same white and blue checkered top as I did riding my bike at the park last week . . . I shot this two weeks ago because I was proud and feeling good . . . check the date on my story and Snapchat . . . reminds me of another song I love by @madonna . . . SHINE YOUR LIGHT NOW . . . !!!!! PS don’t believe everything you read, hear, or see . . . follow your heart . . . remain open to change and educate yourself . . . !!!!!”; Britney Spears, @britneyspears (Jun. 22, 2020), https://www.instagram.com/britneyspears/.
  38. See Timeline, supra note 34; Britney Spears Announces ‘Indefinite Work Hiatus,’ supra note 34.
  39. Britney Spears fans and supporters protest singer’s conservatorship hearing in LA, DC, USA Today (Sep. 29, 2021), https://www.usatoday.com/picture-gallery/entertainment/celebrities/2021/06/24/supporters-britney-spears-protest-outside-singers-conservatorship-hearing/5335949001/.
  40. Jem Aswad, Read Britney Spears’ Full Statement Against Conservatorship: ‘I Am Traumatized,’ Variety (Jun. 23, 2021), https://variety.com/2021/music/news/britney-spears-full-statement-conservatorship-1235003940/.
  41. Reporter’s Transcript of Proceedings 14:8–9, 16:26, In re the Conservatorship of Britney Jean Spears, Conservatee, No. BP 108870 (Sup. Ct. of CA for L.A. County June 23, 2021).
  42. Id.
  43. Eva Lopez, How Conservatorship Threatens Britney Spears’ Civil Rights, ACLU (Aug. 20, 2020) https://www.aclu.org/news/disability-rights/how-conservatorship-threatens-britney-spears-civil-rights/.
  44. Godfrey, supra note 10, at 3.
  45. U.S. Gov’t Accountability Off., GAO-10-1046, Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors 7 (2010).
  46. U.S. Gov’t Accountability Off., GAO-04-655, Guardianships: Collaboration Needed to Protect Incapacitated Elderly People 30 (2004).
  47. Marissa Cohen, #FreeBritney: Why Indefinite Conservatorships are Unconstitutional (Jun. 24, 2021).
  48. Cal. Legis. Assemb. Bill 1663 (2022).
  49. Cal. Legis. Assemb. Bill 1663, § 1.416.9 (2022).
  50. Id. § 4.4.1.2104.
  51. Id. § 1.416.9.
  52. Id. § 8.1835.a.
  53. Brian Maienschein, AB 1663: The Probate Conservatorship Reform and Supported Decision-Making Act, California State Assembly Democratic Caucus (2022), https://a77.asmdc.org/ab-1663- probate-conservatorship-reform-and-supported-decision-making-act.
  54. Cal. Legis. Assemb. Bill 1663, § 8.1835.b.8 (2022)
  55. Id. § 2.416.17 (2022)
  56. Id.
  57. Id.
  58. Id.
  59. Maienschein, supra note 52.
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