Washington Lawyer - November/December 2021 - 10

FEATURE
REFORMING
CONSERVATORSHIP
A Battle Over Best Interests
By Jeremy Conrad
T
hirteen years ago, few blinked an eye when
Britney Spears was placed in a conservatorship
that effectively stripped her of the ability to
make decisions about her finances and health.
In early 2021, following the release of the documentary
Framing Britney Spears and Spears's June testimony
alleging abuse, the pop icon has brought to
national attention the legal process by which an individual
deemed incapable of handling one's own
affairs is placed under the responsibility of another.
" Britney Spears's story highlights a number of serious human and civil
rights that guardianship and conservatorship can negatively impact,
including the right to control your own reproductive rights and your
own body; what kind of medical, psychiatric, and psychological treatment
you receive and who you receive it from; how you get to spend
your own money; where you can go; and even with whom you can
spend time, " says Morgan K. Whitlatch, legal director of Quality Trust
for Individuals With Disabilities.
Whitlatch, who is also legal project director of the National Resource
Center for Supported Decision-Making, has been at the forefront of a
movement seeking to address the systemic issues implicated by Spears's
complaints, issues that impact many people with disabilities and the
elderly. Disability rights advocates like her have promoted the creation
and implementation of less restrictive alternatives to conservatorship or
guardianship, as it is called in the District of Columbia and elsewhere.
In a conservatorship and guardianship, the authority to make many basic
life decisions is transferred from a person found incapable of doing so to
10 WASHINGTON LAWYER * NOVEMBER/DECEMBER 2021
an individual appointed by the court. Although these systems may be
appropriate in some instances, Whitlatch and others point out how the
arrangements could operate as a blunt instrument, summarily removing
rights from individuals when alternatives could provide the necessary
support without an attendant loss of agency.
Less restrictive alternatives do exist. There are guardianships of the estate
for managing the ward's property and assets, and guardianships of the
person to make decisions relating to the well-being and care of the ward.
Guardianships may also be limited in time, covering the duration of a
temporary disability, or limited to a particular issue. Limited power of
attorney is another option that may be appropriate, permitting the
management of specific aspects of an individual's life, such as finances,
without impacting the person's right to make other basic life decisions.
The newest alternative to guardianship is supported decision-making,
a system that permits individuals to retain their decision-making rights
by choosing a network of supporters to render advice. The American
Bar Association Commission on Law and Aging describes supported
Illustrations: iStock
Washington Lawyer - November/December 2021

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