What if Britney was British? Decision making by deputies in England and Wales

You can’t help but notice that Britney Spears is splashed across the papers again with dramatic stories about her conservatorship and how little control she has over her own life. With hard hitting headlines and comments, such as: “I want my life back”, and describing the conservatorship as “abusive”, as a Court of Protection solicitor, I find it hard to ignore.

Conservatorship in the UK is called a Deputyship

A conservatorship, like a deputyship in England, is the appointment of a person by a judge to manage the affairs of an individual where they cannot do so themselves. This is usually because an illness, condition or disability results in some mental limitations and means that the individual does not have the necessary capacity to make certain decisions for themselves. In both America and England, people can be appointed to manage either the financial affairs of another person, and/or their daily life. In addition, in England, their health and welfare.

Britney Spears’ father was appointed as her conservator in 2008 after very public issues with her mental health. It is reported that she has recently applied to the court to have the conservatorship removed as she states that she finds it oppressive and controlling. Some of the examples Britney Spears has given to support her views are that: she was forced to do a tour in 2018 against her will; she cannot make any of her own business decisions and she has been made to have an IUD so that she cannot get pregnant on the basis she is not allowed to marry or have children.

If Britney lived in England and Wales, would the situation be any different?

England and Wales – The Mental Capacity Act 2005

The Mental Capacity Act 2005 (the Act) gives us our guidance on decision making for someone else. Our laws are clear that removing someone’s freedom to make their own decisions should very much be a last resort, a principle that is mirrored in America. As part of the application process to be appointed as a deputy on behalf of someone else, you must provide the court with evidence from a relevant professional that the person does not have capacity to manage their own financial affairs, or health and welfare matters. The evidence that is presented will include information as to whether there is a chance that the person may regain capacity in future and the court will take this into account when appointing the deputy. Where the mental impairment is lifelong or likely to deteriorate, then the deputy will usually be appointed to act “until further order”, i.e. until anyone goes back to the court to ask for a change. In cases where the mental impairment may not be permanent, as is suggested in Britney’s case, then the deputy may only be appointed for a limited period so that the matter can be reviewed. Of course, we do not know the exact details of Britney’s mental health at the time of her conservatorship, so cannot comment on that specifically, but the laws in England are designed to protect the individual as far as possible to try to avoid these situations.

Section 1 of the Act sets out the basic principles that everyone must follow. First, and most importantly, it should be assumed that a person has capacity to make a particular decision unless it is shown otherwise. Where a deputy has been appointed to manage the property and financial affairs of a person, there is already evidence presented to the court that the person lacks capacity in this regard, but it is important to remember that this does not necessarily mean they cannot make any financial decisions themselves. Capacity is time and decision specific, so every decision should be considered separately. The Act is also clear that you must take all practicable steps to help the individual make their own decision and that an unwise decision is not evidence of a lack of capacity. Many of the individuals we act for are able to manage aspects of their finances independently, such as a weekly budget, but need support dealing with more complex decisions, such as longer term planning or investing.

Take the example of a young adult who was injured in a car accident. Before her accident, she was working and earning her own money. She was living with her parents and so had most of her income available to spend on what she liked. She enjoyed buying designer clothes and expensive jewellery even though this used up all her income each month. As a result of the accident, there was evidence that she was no longer able to manage all of her property and financial affairs herself. Deputies were appointed to manage her affairs. With the money that she has available to her, she still likes to buy designer clothes and expensive jewellery, spending less on things that do not interest her. Should her deputies step in and take control of her money to prevent her spending money unnecessarily because they would prioritise her spending differently? The answer will depend on whether she has capacity to manage her day to day spending, but if she does, then the deputies have no right to stop this just because they think she is making an unwise decision.

If it is considered that she does not have capacity in relation to this decision, then the deputies can step in. However, they must make the decision on her behalf and in her best interests. Making a decision in someone’s best interests is not the same as making what the deputies consider to be the best decision. What is right for one person is not necessarily right for another. The Act sets out guidance for deputies when making a decision for someone else and what should be considered when thinking about best interests. This includes the individual’s wishes, feelings and beliefs; their individual circumstances and views of others who have an interest in the person’s wellbeing, such as their family.

In the case of the young adult above, the deputies considered that she was not acting any differently to the way she had before the accident. She has the funds available to spend on these things and was not putting herself at any risk, and although her support team all thought that her spending was excessive, her family did not as this was how she had been brought up.

In a separate case of a young male who was also injured in a car accident, the deputies faced a similar decision. In this case, the individual was a family man with three young children and a house with a mortgage. Prior to the accident he was the main earner and dealt with the bills, mortgage and general household finances. As a result of the accident, he sustained a brain injury and he became impulsive, often spending hundreds of pounds online at a time. Once deputies were appointed, they reviewed his spending and determined that this was not in his best interests as it did not leave enough money each month to cover the cost of his bills. Taking into account what they know about him from before the accident and the views of his family, the deputies are now working with his support team and family to create a budget that will benefit the young man whilst ensuring that his household bills and mortgage are paid and his family looked after.

Being a deputy means stepping into someone’s shoes and making the decision that you think they would have made if they remained able to do so. It is sad to hear of Britney being forced to do things against her will as the first impression is almost certainly that she has not been involved in the decision making process. It is impossible to know whether the decisions that she refers to would have been in her best interests without knowing all the facts of the case, but the important thing to remember is that in England, Britney would have been at the heart of the decision and her views should have been taken into account.

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