When questions were raised on Britney Spears’ mental capacity after she shaved her head and attacked a paparazzi car with an umbrella in 2007, she was not long after placed under a Court sanctioned conservatorship in favour of her father, Jamie Spears. Mr Spears has since been authorised to manage Britney’s personal affairs, including her career, property and medical treatment and general welfare. Although it was meant to be a temporary arrangement, he has been acting as her ‘conservator’ for the last thirteen years.
Questions have been raised on this arrangement because of the age of the popstar and she has been able to record new songs as well as perform on stage during this time. It is queried therefore how she can be unable to make ‘basic decisions’ and whether the conservatorship is necessary. However, given the heavy duty of this role, the Court must take many considerations into account when authorising a conservatorship (known as a ‘Deputyship’ in England and Wales) and we discuss these further below.
There is an assumption that you either have mental capacity or not, however this is not the case. Even where there is a diagnosis of a condition, for example dementia, this does not automatically mean that someone lacks capacity. Some individuals can make basic decisions for example, what do they want to eat, what do they want to wear, do they want to go out etc. It is when matters are complicated, such as making financial investments, where they may have difficulty in making decisions.
In England and Wales, the Mental Capacity Act 2005 confirms the basic position is every adult has the right to make his or her own decisions, even unwise ones. It must be assumed that they have capacity unless it is proved otherwise. The starting point therefore is presumption of capacity.
A person must be supported to make their own decisions and appropriate help should be provided before a determination is made; they do not have the capacity to make a particular decision. Information could be explained or presented in a way that is easier to understand, for example, using simple language, visual aids or maybe asking a third party to help with communication, such as a family member or carer, or even considering particular locations where a person feels more at ease.
You can never assume someone lacks capacity based on their age, appearance, behaviour or assumptions about any medical condition they may have.
Guidance from the Mental Capacity Act provides that a person who lacks capacity cannot do one of more of the following:
- Understand the information relevant to a decision;
- Retain that information;
- Weigh up or use that information as part of the process of making a decision; and
- Communicate their decision (it does not have to be verbally).
We can help you with queries relating to mental capacity, such as determining whether an individual can provide instructions to create a Lasting Power of Attorney (LPA) or whether an application for Deputyship through the Court of Protection is more suitable.
What is an Attorney?
If you are an attorney, you are required to ascertain whether a person you are acting for has the capacity to make a particular decision. If not, any decision you make always has to be in the best interests of the person who is unable to do so for themselves.
An LPA allows an individual to choose their attorney. If no such attorney is appointed as an LPA has not been entered into, the Court can grant a Deputyship order. A Deputy will be appointed to manage the affairs of an individual who is unable to make decisions for themselves.
The key difference between an LPA and a Deputyship, is an LPA is made by the individual before he or she loses capacity. In comparison to a Deputyship application, this is made when individual has lost capacity and does not have an LPA or an Enduring Power of Attorney in place.
An LPA allows a person to have more control and choice. This is more suitable to reflect their wishes before capacity is lost.
What is a Deputy?
Where a person lacks the mental capacity to manage their affair themselves, a Deputy is a person appointed by the Court of Protection.
The Deputy will manage property and affairs and, less frequently the health and welfare of that individual. A Deputy can only act if the Court of Protection makes a Deputyship order. This order will set out the powers and duties of the Deputy.
Once granted, the Deputyship order will enable the individual’s affairs to be managed, such as transferring money to be used to pay care fees.
This can be a complicated process, and if you need help with all or even part of the process, we can assist you.
Who can be a Deputy?
Anyone over the age of 18 years can be a Deputy.
Deputies are usually close relatives, such as a spouse, partner or even friends of the person who needs help making decision. In cases where there is no one willing or able to take on the role, a local authority (in low value estates) or a professional Deputy can be appointed, for example, a solicitor.
It is important to note that a prospective Deputy must declare any bankruptcy arrangements or criminal convictions when making the application to the Court. This could lead to the application being refused.
Types of Deputyship
There are two types of Deputyship and a Court-appointed Deputy can act as:
- A Property and Affairs Deputy – making decisions about property and financial affairs, for example, the sale and purchase of a property; or
- A Personal Welfare Deputy – making decisions about health and personal welfare, including options for treatment. Please note that the Deputy cannot consent to or refuse life sustaining treatment.
What are the Powers and Duties of a Deputy?
The powers of a Deputy are derived from the order sealed by the Court of Protection; an appointed Deputy cannot exceed these powers. The Court of Protection has discretion on the powers which will be appointed, and they can only impose restrictions, for example providing that large values of expenditure must only be carried out with further permission of the court.
The Deputy’s duties are established by the Mental Capacity Act and in particular follow the general principles:
- A presumption of capacity is always assumed for an individual unless it is shown otherwise;
- A person cannot be treated as unable to make a decision until all practicable steps have been taken to help him or her, without success;
- Any decisions made on behalf of a person must always be made in the person’s best interests; and
- Before making a decision, consideration must be given as to whether its purpose can be achieved in a way that is less restrictive of the person’s rights and freedom.
Given the nature of the responsibility, the Court of Protection places numerous obligations on the Deputy as a safeguard to the person who needs decisions to be made for them. These include filling annual reports and accounts, complying with supervision by the court and obtaining a security bond. The Court of Protection will also check there are no objections to the prospective Deputy’s appointment.
Supervision and Termination of Deputyships
The Office of the Public Guardian supervises Deputyship orders.
There may be different levels of supervision. For example, new orders which are sanctioned usually have close supervision for one or two years. This may be later reduced to a ‘minimal’ approach once patterns are established. The level of supervision required will determine the Deputy’s reporting obligations to the Office of the Public Guardian.
A Deputyship order is terminated if the order is time-limited and expires, or if the individual lacking capacity dies or recovers capacity.
It can also be terminated by an order of the Court of Protection or by an application made by the Deputy themselves, if he or she wishes to retire or resign, enabling a new Deputy to be appointed.
Lawyers for Britney Spears have filed for Mr Spears to be removed as a conservator arguing that Britney would not resume her career whilst Mr Spears controlled it. Days after the documentary ‘Framing Britney’ was aired, a Los Angeles judge at hearing on 11 February 2021 denied Mr Spears request to retain some rights over Britney’s estate. The judge concluded that Mr Spears and Bessemer Trust (a corporate fiduciary) would remain co-conservators having equal authority. The next hearing is scheduled for 17 March 2021.
If you require further information, wish to have a Lasting Power of Attorney or an application for Deputyship to be made with the Court of Protection email, get in touch or call our corporate team today.
The contents of this article are intended as a guidance for readers and does not constitute legal advice. KaurMaxwell do not accept responsibility for this information or matters affected by changes in the law or otherwise.