Conservatorship Dispute Of Britney Spears
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Under
U.S. law The law of the United States comprises many levels of codified and uncodified forms of law, of which the supreme law is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as va ...
, a conservatorship results from the appointment of a guardian or a protector by a judge to manage the personal or financial affairs of another person who is incapable of fully managing their own affairs due to age or physical or mental limitations. A person under conservatorship is a "conservatee", a term that can refer to an adult. A person under guardianship is a "ward", a term that can also refer to a minor child. Conservatorship may also apply to
corporations A corporation or body corporate is an individual or a group of people, such as an association or company, that has been authorized by the State (polity), state to act as a single entity (a legal entity recognized by private and public law as ...
and
organization An organization or organisation (English in the Commonwealth of Nations, Commonwealth English; American and British English spelling differences#-ise, -ize (-isation, -ization), see spelling differences) is an legal entity, entity—such as ...
s. The conservator may be only of the "estate" (financial affairs) but may be also of the "person", wherein the conservator takes charge of overseeing the daily activities, such as healthcare or living arrangements of the conservatee. A conservator of the person is more typically called a
legal guardian A legal guardian is a person who has been appointed by a court or otherwise has the legal authority (and the corresponding duty) to make decisions relevant to the personal and property interests of another person who is deemed incompetent, ca ...
. In 2021, an estimated 1.3 million people in the U.S. were under conservatorship.


Terminology

A person appointed to manage affairs is a conservator. A person under conservatorship is a conservatee. Under a guardianship, the appointed person is a guardian and subject person is a ward. When referring to government control of private corporations, conservatorship implies a more temporary control than does
nationalisation Nationalization (nationalisation in British English) is the process of transforming privately owned assets into public assets by bringing them under the public ownership of a national government or state. Nationalization contrasts with priv ...
. Some jurisdictions, such as
California California () is a U.S. state, state in the Western United States that lies on the West Coast of the United States, Pacific Coast. It borders Oregon to the north, Nevada and Arizona to the east, and shares Mexico–United States border, an ...
, distinguish between conservatorship of an adult as compared to an unemancipated minor. Within such a jurisdiction, a person who is under what is more typically described as a guardianship may be described as a "conservator of the person". Other jurisdictions, such as
New York New York most commonly refers to: * New York (state), a state in the northeastern United States * New York City, the most populous city in the United States, located in the state of New York New York may also refer to: Places United Kingdom * ...
, use the term guardianship in both contexts. A "limited conservatorship" usually refers to the limited legal responsibilities of a conservator over the affairs of an individual who is developmentally disabled, but still capable of making important decisions for themselves. In these cases, the conservatee to whom the limited conservatorship applies can retain more control over their personal affairs than other conservatees can; for example, they may retain their right to decide where they may live.


Appointment

Conservatorship is established either by
court order A court order is an official proclamation by a judge (or panel of judges) that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying o ...
(with regard to individuals) or via a statutory or regulatory authority (with regard to organizations such as business entities). In other legal terms, a conservatorship may refer to the legal responsibilities over a person who has a
mental illness A mental disorder, also referred to as a mental illness, a mental health condition, or a psychiatric disability, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. A mental disorder is ...
, including individuals who are
psychotic In psychopathology, psychosis is a condition in which a person is unable to distinguish, in their experience of life, between what is and is not real. Examples of psychotic symptoms are delusions, hallucinations, and disorganized or incoher ...
,
suicidal Suicide is the act of intentionally causing one's own death. Risk factors for suicide include mental disorders, physical disorders, and substance abuse. Some suicides are impulsive acts driven by stress (such as from financial or acad ...
, demented, incapacitated, or in some other way unable to make legal, medical or financial decisions on behalf of themselves.


Role and duties

Conservatorship is a legal term referring to the legal responsibilities of a conservator over the affairs of a person who has been deemed
gravely disabled Grave disability or gravely disabled is a legal status used as a criterion in addition to danger to self or others as the basis for involuntary commitment in only 9 of 50 states of the United States. It is not a criterion in Washington, D.C. In C ...
by the court and unable to meet their basic needs of food, clothing, and shelter. They are governed by the state's individual laws. Terminology varies, and some states or jurisdictions may refer to a conservator as a guardian of the estate or as a trustee. Conservatorships are generally put in place for people who are significantly disabled by mental illness, elderly individuals who lack mental capacity due to medical conditions such as dementia, or individuals with developmental disabilities who lack the capacity to manage their own affairs. In typical conservatorship proceedings, an allegedly mentally incapacitated person must be evaluated by a qualified physician or psychiatrist who prepares a report documenting the person's mental capacity that is provided to the court and may be used as evidence. An example of a conservator's duties includes: locating and marshalling assets, such as property and money, which belong to the conservatee; using the assets to buy food for the conservatee, secure and pay for placement in a facility which would take care of the conservatee or treat a mental illness, pay bills for the conservatee, manage property by paying for property insurance, mortgage payments or rent, property clean-up, or pay for a property management company to rent the property. An example of a conservator or guardian's medical responsibilities would be the court granting medical authority to the conservator or guardian, and the conservator or guardian authorising a physician to place a feeding tube to provide nourishment into the protected person's stomach if they are in medical need of it. It is not uncommon for one person to hold both offices and be referred to as the "guardian and conservator" of the conservatee, even though a conservator or guardian can be appointed over the person only, the estate only, or both. Generally, a conservator or guardian over the estate is only appointed if the conservatee has assets that need to be protected, marshalled, and managed. These terms may be found in use in
Uniform Probate Code The Uniform Probate Code ( commonly abbreviated UPC) is a uniform act drafted by National Conference of Commissioners on Uniform State Laws (NCCUSL) governing inheritance and the decedents' estates in the United States. The primary purposes of ...
(UPC) jurisdictions, even though the UPC uses the term "protected person" in either case. In most states, an outside party or agency must review the facts of the case and submit a report, usually required to be in writing, to the court before the court makes a decision on the request to establish a conservatorship or guardianship. Usually the outside party is a local county mental health representative called an investigator. They are often required to be experts in some appropriate field, such as social work, mental health, a medical field, or law. Procedures for conservatorship of an adult are often different from those for minors. The court may appoint an attorney to represent the proposed conservatee or ward. If the proposed conservatee or ward is unable to have an attorney-client relationship because of some impairment, the court may appoint a guardian-ad-litem (who is often also an attorney). A guardian-ad-litem does not take instruction from the client, but rather acts on their behalf and tells the court what they think is in the best interests of the proposed conservatee or ward, whether or not that is what the proposed conservatee or ward wants. The conservatee has the right to be represented by an attorney, and if they cannot afford a private attorney, they are appointed a public defender that will represent them free of cost.


California

In the state of California there are two types of conservatorships: Lanterman–Petris–Short (
Lanterman–Petris–Short Act The Lanterman–Petris–Short (LPS) ActChapter 1667of the 1967 California Statutes, codified aCal. Welf & Inst. Code sec. 5000 et seq.) regulates involuntary civil commitment to a mental health institution in the state of California. The act set ...
of 1967, referred to as LPS) and Probate conservatorships. These forms of conservatorship are governed by the California Probate Code, and Welfare and Institutions Codes. LPS conservatorships begin with a temporary 30-day conservatorship, and if the conservatee remains gravely disabled, the conservator is reappointed for a year; the LPS conservatorship can be renewed annually, or terminated if no longer needed. Probate conservatorships are referred to as "general conservatorships", and typically do not have a temporary period unless an urgent emergency exists that is creating risk to the person or their estate. Probate conservatorship do not automatically expire as LPS conservatorships do if they are not renewed by the conservator. In an LPS conservatorship, a court-appointed conservator over the person is responsible for managing the conservatee's placement, medical decisions, and mental health treatment. A conservator over the estate is responsible for marshalling, protecting, and managing the conservatee's assets that remain in their estate. A conservator reports to the court that appointed them, and is monitored by the supervising judicial court in the county in which the conservatee permanently resides. LPS conservatorships usually begin in the county mental health system and are referred from acute psychiatric hospitals, where Probate conservatorships can result from any referral source if validated with proper medical documentation. Mental Health consumers have the right to a Patient's Rights advocate, and are taken through a series of hearings while they are in the acute hospital before they reach the point of needing a conservator. In 2022, a law was enacted requiring judges in California to document all alternatives to a conservatorship before granting one, giving potential conservatees in California preference in selecting a conservator, and making it easier to end probate conservatorships in California.


International equivalents

Conservatorship for individuals is called " deputyship" in England, Wales and in Switzerland (formerly "guardianship"), "guardianship" in Scotland, "controllership" in Northern Ireland, " guardianship" in
India India, officially the Republic of India, is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area; the List of countries by population (United Nations), most populous country since ...
and " guardianship and administration" in
Australia Australia, officially the Commonwealth of Australia, is a country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...
.


South Korea

In the Republic of Korea (South Korea) a Conservatorship is called a Guardianship. Types of Guardians under Korean Guardianship Law Adult guardian (성년후견인): If an adult chronically lacks the mental competence to manage their own matters due to illness, disability, old age, or other conditions, a Korean court may appoint an adult guardian. This type of guardianship in Korea gives near total power over the ward to the Adult Guardian. Limited guardian (한정후견인): A person may also be designated as a "special guardian," entrusted with restricted authority over the ward's interests. For example, a special guardian may be granted the legal authority in Korea to decide how to handle the ward's assets without being granted any control over the ward's person. Specified guardian (특정후견인): A specified guardian is a person appointed to represent a person's interests in relation to a particular court proceeding or process.


The process of appointing a guardian through Korean courts

The Korean Family Courts, typically, has the authority to appoint a guardian in Korea. A general adult guardian is one who is in charge of both the ward's financial interests and personal welfare. The Korean family court, or one of its branches, has authority over the ward's address and will hear the guardianship case. When the Family Court is not present in the ward's address, typically, a district court or a branch court has jurisdiction over the matter. Typically, after an evaluation of the ward's health by a doctor, the court proceedings begin. The court will often question the ward and hear his/her testimony regarding the guardianship. So that the ward can make the most use of his or her remaining capacity and choose a suitable guardian. The court has the power to decide the beginning of guardianship, the choice of a guardian, change of guardian, cessation of guardianship, the extent of the legal representative's authority, etc.


Conservatorship of organizations

In the United States, in some states, corporations can be placed under conservatorship, as a less extreme alternative to
receivership In law, receivership is a situation in which an institution or enterprise is held by a receiver – a person "placed in the custodial responsibility for the property of others, including tangible and intangible assets and rights" – especia ...
. Whereas a receiver is expected to terminate the rights of shareholders and managers, a conservator is expected merely to assume those rights, with the prospect that they will be relinquished. Robert Ramsey and John Head, law professors who both specialise in financial issues, suggest that an
insolvent In accounting, insolvency is the state of being unable to pay the debts, by a person or company ( debtor), at maturity; those in a state of insolvency are said to be ''insolvent''. There are two forms: cash-flow insolvency and balance-sheet in ...
bank should go into receivership rather than conservatorship to guard against false hope and
moral hazard In economics, a moral hazard is a situation where an economic actor has an incentive to increase its exposure to risk because it does not bear the full costs associated with that risk, should things go wrong. For example, when a corporation i ...
. At the federal government level in the United States, in July 2008, the failing
IndyMac Bank IndyMac, a contraction of Independent National Mortgage Corporation, was an American bank based in California that failed in 2008 and was seized by the United States Federal Deposit Insurance Corporation (FDIC). Before its failure, IndyMac Bank ...
was taken into
administrative receivership In law, receivership is a situation in which an institution or enterprise is held by a receiver – a person "placed in the custodial responsibility for the property of others, including tangible and intangible assets and rights" – especiall ...
by the
Federal Deposit Insurance Corporation The Federal Deposit Insurance Corporation (FDIC) is a State-owned enterprises of the United States, United States government corporation supplying deposit insurance to depositors in American commercial banks and savings banks. The FDIC was cr ...
(FDIC) and its assets and secured liabilities transferred to a specially established
bridge bank A bridge bank is an institution created by a national regulator or central bank to operate a failed bank until a buyer can be found. While national laws vary, the bridge bank is usually established by a publicly backed deposit insurance organis ...
called
IndyMac Federal Bank, FSB IndyMac, a contraction of Independent National Mortgage Corporation, was an American bank based in California that failed in 2008 and was seized by the United States Federal Deposit Insurance Corporation (FDIC). Before its failure, IndyMac Bank ...
which was placed into conservatorship, also by the FDIC. Again, in the U.S. at the federal level, in September 2008, the chief executive officers and board of directors of
Fannie Mae The Federal National Mortgage Association (FNMA), commonly known as Fannie Mae, is a United States government-sponsored enterprise (GSE) and, since 1968, a publicly traded company. Founded in 1938 during the Great Depression as part of the New ...
and of
Freddie Mac The Federal Home Loan Mortgage Corporation (FHLMC), commonly known as Freddie Mac, is an American publicly traded, government-sponsored enterprise (GSE), headquartered in Tysons, Virginia.Federal Housing Finance Agency The Federal Housing Finance Agency (FHFA) is an independent federal agency in the United States created as the successor regulatory agency of the Federal Housing Finance Board (FHFB), the Office of Federal Housing Enterprise Oversight (OFHEO), ...
(FHFA) via the determination of its director
James B. Lockhart III James B. Lockhart III (born 1946) is an American U.S. Navy officer, business executive, and, since September 2009, Vice Chairman of WL Ross & Co, which manages $9 billion of private equity investments, a hedge fund and a Mortgage Recovery Fund. I ...
, with the support and financial backing of U.S. Treasury via Treasury secretary
Hank Paulson Henry "Hank" Merritt Paulson Jr. (born March 28, 1946) is an American investment banker and financier who served as the 74th United States secretary of the treasury from 2006 to 2009. Prior to his role in the Department of the Treasury, Paulson ...
's commitment to keep the corporations
solvent A solvent (from the Latin language, Latin ''wikt:solvo#Latin, solvō'', "loosen, untie, solve") is a substance that dissolves a solute, resulting in a Solution (chemistry), solution. A solvent is usually a liquid but can also be a solid, a gas ...
. The intervention leading to the conservatorship of these two entities has become the largest in government history, and was justified as necessary step to prevent the damage to the financial system that would have been caused by their failure. Entities like this are considered "
too big to fail "Too big to fail" (TBTF) is a theory in banking and finance that asserts that certain corporations, particularly financial institutions, are so large and so interconnected with an economy that their failure would be disastrous to the greater e ...
". An even more ambitious use of the conservatorship model has been proposed by Duke University professors Lawrence Baxter, Bill Brown, and Jim Cox. They suggest that the troubled U.S. banks be placed in conservatorship, that some of their "good assets" be dropped into newly created "good bank" subsidiaries (presumably under new management), and the remaining "bad assets" be left to be managed under the supervision of a conservatorship structure.


See also

*
Legal guardian A legal guardian is a person who has been appointed by a court or otherwise has the legal authority (and the corresponding duty) to make decisions relevant to the personal and property interests of another person who is deemed incompetent, ca ...
*
Power of attorney A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs (which may be financial or regarding health and welfare), business, or some other legal matter. The person auth ...
*
Receivership In law, receivership is a situation in which an institution or enterprise is held by a receiver – a person "placed in the custodial responsibility for the property of others, including tangible and intangible assets and rights" – especia ...
*
Custodial account A custodial account is a financial account (such as a bank account, a trust fund or a brokerage account) set up for the benefit of a beneficiary, and administered by a responsible person, known as a legal guardian or custodian, who has a fiduci ...
*
Britney Spears conservatorship case On February 1, 2008, American musician Britney Spears was involuntarily placed under a conservatorship by Judge Reva Goetz, with her father, Jamie Spears, James "Jamie" Spears, and attorney Andrew M. Wallet, as conservators. The conservatorshi ...


References


Further reading

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External links


Montana Code Annotated 72-1-103(8) (2005)
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