Over the past few months you have probably heard of the #FreeBritney movement. The public scrutiny of the court proceedings regarding Britney’s conservatorship has brought to light some of the questionable actions taken by Jamie Spears, Britney’s father, as well as Britney’s own attorney and the judge presiding over her case. Join us for a discussion about what the Britney Spears conservatorship would look like under Massachusetts law. We are joined by our guest speakers Attorney Judy Flynn from Falco & Associates, P.C. of Quincy and Leah Strazdes.
In this webinar we will be covering:
– Could what happened to Britney Spears happen to you, and how can you minimize the chances of it happening?
– How do you end a guardianship or conservatorship in Massachusetts?
The opinions expressed in this webinar are the opinions of Attorney Brian Barreira and Attorney Judy Flynn on the law as written as of the date of the webinar recording, September 16, 2021. The information presented in the webinar is for informational purposes only, and is not a substitute for individualized legal advice.
Brian: Okay we’re getting started, Hi this is Brian Barreira, I’m here with Judy Flynn who’s a lawyer in in Quincy she’s a certified elder law attorney and Leah Strazdes from my office. We’re here to talk about the Britney Spears conservatorship and what it would have looked like if it were here and not in California. So we can have Leah started off and just give us a overview of of what happened to Britney and where things stand.
Leah: Yeah, so Britney grew up in the spotlight but in 2007 she sort of came to resent the spotlight. In 2007 she was dealing with some personal problems, she just went through a divorce and had a custody battle for her kids. It was rumored that she had postpartum depression and since she was a media figure, it was all publicized. During her struggles she ended up shaving her head, that’s very publicized by the media and that only fueled the interest in this troubled star. So, in early 2008 she was placed in an involuntary psychiatric hold twice at the request of her father and this led to her being put into a conservatorship. So in the months following her institutionalization, Jamie filed the petition, which is her father, to put her in a conservatorship and by the end of 2008 Britney was in a permanent conservatorship with her father at the helm. So, she was appointed a lawyer that she had to fund and she lost all control over her decision-making capabilities regarding her finances and personal life though she was still expected to fulfill her role as a pop star and keep her vigorous performing schedule. Britney alleged that she faced multiple forms of conservatorship abuse. She alleges that her cell phone was monitored by her lawyer and father, she alleges that she has an IUD that she can’t remove, that she was given lithium for her mental health struggles without her consent and that her father has been using her to enrich himself and his family. So a lot of crazy-
Brian: How did this happen how did this all happen and how did it go on for so long, it’s kind of shocking, I can’t imagine that her lawyer was any good.
Judy: It’s mind-boggling it really is it’s such an extreme case and I think we’re much better in Massachusetts.
Brian: Right, we have a new law, we have the Uniform Probate Code since 2009. But I’m going to give a couple of examples of things that happened before the law came into play. In the prior law, I had one client who, with no advance notice, had a guardianship placed on her. Now in California, they’re referring to conservatorship as both the person and the finances. Here we talk about guardian as being of the person and conservator of the finances, but she had, before our uniform probate code, a guardianship could be both; so what they’re calling conservatorship out there we called guardianship back before 2009. So the sister or the half sister of one of my clients went, took her to a physician at some point, a neurologist, and this neurologist’s attitude about mental capacity was that if you could not remember three words a minute later you’re out of it, you should not be living alone and you can’t take care of yourself. Now, I could say three words right now and then ask a minute later, both of you a minute later, and I bet, I bet you might not get all three. You know, it depends on whether you’re focusing and whether that’s part of the way your your mind works. She failed the three-word test, the doctor scribbled a few words on a medical certificate, ‘has Alzheimer’s, needs care’, I mean something like that it was nothing substantial, it was no explanation. The lawyer didn’t give her any notice, filed a motion for temporary guardianship, immediate guardianship with no notice, and went into court a couple of days later after she had filed it, so she could have given notice, and alleged well we have a bed over in an assisted living facility, not a nursing home an assisted living facility, and you know it’s an it’s urgent we need to be able to move her there right now. And look, this judge just you know, remember judges, probate court judges, probably 90-95 percent of their time is on family law kinds of cases not guardianship not estates and trusts, just awarded immediate guardianship. So now remember my client didn’t know about this, so her sister shows up at her house and says ‘pack some things, you’re coming with me’ and she took her to an assisted living facility and she just plunked her down. Now this woman, our client, was 89 years old, had always lived in this home, her parents and grandparents had lived there and now she’s in a strange place and her friends called me, and I usually don’t go see someone based on friends calling, and I know of I’ve heard of an ethical complaint filed against a lawyer who went to see someone like this who already had a lawyer and it was viewed as solicitation; but I went anyway and we got the judge to throw it out and then we were able to keep this woman at home. She had moderate Alzheimer’s and we were able to keep her home with some home care for a year and a half. You know, it’s just a situation where this guardianship never should have been given, it was based on skimpy evidence and no notice,
and so that could happen to you under the prior law. Have you had anything like that happen any of your clients Judy?
Judy: Sure, but I will say back then the medical certificate that you could get an appointment with sometimes said confused, I mean, and that was it and the appointment was granted that would never fly today. They want detail showing the condition that warrants such an appointment, but that’s outrageous.
Brian: Yeah, so, another example under the prior law, I was an expert witness in a case where dad had married a woman, the children had investigated her and found out that she had a criminal history, specifically in the prostitution area. So, they didn’t go to the wedding and a year later they found out he was in a nursing home the bill hadn’t been paid, they hired a divorce lawyer, a famous Boston divorce lawyer, to get guardianship over dad and to get rid of her. So this lawyer suggested a lawyer from the Cape, this was in Cape Cod, as the guardian, and he had never served. These two guys in 83 days billed over a half million dollars. And what you’re supposed to do when you’re guardian is you’re supposed to advance the wishes of the person if you can determine them, that’s known as substituted judgment. Now, what you think is best for them, what they want, he said I want to be married you know and they didn’t listen to him, they went ahead. By the end, they charge over a half million and I testified that what they did was worth twenty to forty thousand, and the judge threw the book at them, really just hammered them with you know putting money back and paying legal fees and then the board of overseers got involved and the lawyer on the Cape had a year and a day, he was suspended and he still, as I understand it, has not applied for readmission; the other lawyer retired but the court still issued a three-year suspension in case he wanted to come back. But this is an example of something that can happen to you, guardianship is supposed to be about you, not about what other people think you should have.
Judy: Brian, I think, sorry, I think that case highlights you know, being competent to make bad decisions if you will or decisions that people don’t agree with; if he could understand the risks and benefits, she’s a criminal, she’s a prostitute, so what? If he understood it, it’s not up to his kids to decide. Right, and clients coming to us, kids have a hard time understanding, ‘mom’s not safe at home’, well if mom understands the risks and benefits it’s her decision still even if you think it’s a bad decision.
Brian: Right, so those are two examples of prior law, but now we have a better law, possibly, I’ll leave that up to you Judy. If she were here what would what would her conservatorship have looked like?
Judy: Well, so, I think it would be much better here, much, much better, and just as a reminder of what you said, the law is bifurcated here so, used to be guardianship of the person and estate, now we have the guardianship over the personal matters and placement and conservator over the financial, contractual, business affairs. There’s a higher standard to get an appointment, the person has every right to be there. You have to have a risk of imminent harm to get any sort of appointment without notice, advance notice to the person in hand and their right to be there to object. If any person requests counsel for the incapacitated or protected person the court must, according to the code, must appoint counsel for that person. If you go back to like a Britney case, if you don’t know what you don’t know that’s still a shortcoming right, if somebody has nobody to know better then yes it’s still not as good as it could be. There are higher levels of authority, so selling somebody’s home, moving them to a nursing home, treating them with antipsychotic medication or giving them ECT treatments, there’s so many things that even a conservator or guardian does not have the authority to do without another higher level of court involvement, and looking into the substituted judgment, ‘would this person want treatment with antipsychotic medications, understanding the risks of the tremors and the other physical side effects, they you know, would they choose it or or not?’ And so, if you then can’t understand what that person would want or there’s no evidence then it’s what’s in the best interest, but there are many levels I think of protections built in from the beginning of the process. It’s not perfect but it’s certainly, what happened to Britney would not fly here now.
Brian: I believe there’s somewhere in the law, I’ve never used this, that anybody who thinks they have information that could be useful can file it with the court.
Brian: I don’t know what has been going on out there in California, it seems like she was deprived of real legal counsel and the court didn’t really know what was going on, but if this IUD issue was here in Massachusetts, somebody could file that, and I don’t know what the court would do with that information if there’s nothing in front of the court, no proceeding in front of the court at that point.
Judy: Sounds like they wouldn’t have done anything you know when you see some of the other details about the case but-
Leah: Sorry, I’ve read in a few articles-
Brian: Let’s talk for a second about the lawyer, about a lawyer, the court can appoint a lawyer. Now, the lawyers usually are from a list that are trained and they’re trained to oppose your deprivation of rights, supposedly. Go ahead.
Judy: That’s a double-edged sword. So yes, they have some course requirement I wouldn’t say ‘they’re trained’, I think that’s a bit strong, maybe you’d disagree but I’ve seen it go the other way, I’ve seen you know, court appointed counsel, this elder that she represents is clearly incapacitated like calling 9-1-1 every five minutes from the nursing home, ‘I’m a prisoner’, there’s no question there’s no capacity there. But this case pushes on to trial because her duty as court-appointed counsel is to do whatever her client wants. So there’s a balance somewhere in between the two, I think she has to push it the whole way but I don’t see that serving anybody either. Would you agree with that?
Brian: I agree but they certainly would have done more than this lawyer did, Britney’s lawyer did.
Judy: Absolutely and had a duty to and didn’t.
Brian: Right, just because someone is temporarily under guardianship doesn’t mean they need it for the rest of their lives. Now generally speaking, with someone old-
Judy: Who’s elderly, Brian, elderly.
Brian: -very old or very old who doesn’t, they’re not going to come back much from whatever is wrong.
Judy: A progressive disease.
Brian: Right, but someone young, someone middle age you know they could come back from, what I mean, I had one client who I thought he was gone, and he, a few months later he’s sitting in front of me and just talking like a regular person. He was in a nursing home, I guess he was an alcoholic and he had gone into some DT’s or something but he was fine he became fine! Now if we’d given up on him, like apparently the court system did with Britney, he’d still be under guardianship.
Judy: So it’s worth mentioning there are ongoing protections for the incapacitated person under guardianship or the protected person under conservatorship. The fiduciary has to file within 90 days a care plan report or a financial report and an inventory and then annually they have to report and there are a number of criteria that have to be included in the filings and one of those things they’re supposed to report on is there any change, is an ongoing appointment warranted here? Is a change in the scope of the appointment warranted here? But then you get into, so that sounds really great on paper right and that should be what we need but who’s reviewing the accountings? The courts are so backlogged, I know the volunteer lawyers project, I volunteered years ago to help review accountings and things like that, and then you had COVID from the second year of that, so they’re providing these reports but if nobody’s really reviewing them and any action taken it’s not a true protection.
Brian: But when the court, when you, when the petitioner or the the conservator asks for the account to be allowed, to be approved by the court a guardian ad litem is appointed and that’s a lawyer from a list who goes through the whole thing. And that’s the person who should be scrutinizing the finances.
Judy: Yes, but that only happens if the person requests approval right and-
Judy: -and I think if they’re just complying with their duty to file it’s not continuing down that path.
Brian: But then if you don’t ask for it to be allowed, then it’s hanging over your head, anything you did any accusation anyone might have, hanging over your head so it makes sense for a conservative to do that.
Judy: It does and I want to throw one other detail in here, I think my experience and probably yours Brian, is very much with the elderly population in the guardian area, but then you have the younger developmentally disabled and you have a mentally ill component I think everyone’s experience within those three different clienteles is different. So I’m speaking pretty much to the elder, elder and special needs, but I think the the pros and cons of the or the protections can vary somewhat in those areas.
Brian: The problem with someone who’s perhaps mentally ill is when they’re off their meds they may need guardianship, then they take them and then they don’t, and it’s a cycle of when do you, what do you do with people like, that stuff. So Leah, I think you had a question about what happened, you know, some conversation between the judge and a lawyer in Britney’s case.
Leah: I’ve read in a couple articles that her court appointed lawyer and the judge presiding over the case had conversations about Britney’s knowledge of what she can do, including Brittany did not know that she could get married and they discussed that between the judge and the lawyer, and the judge pretty much gave the advice that she doesn’t need to know that she has that right; would that be an appropriate conversation, or one that’s tolerated in the courts of Massachusetts?
Judy: No, Absolutely not, it is outrageous.
Brian: That’s not a judge being a judge that’s-
Brian: -maybe that’s a judge being too judgmental, but the lawyer should not, the lawyer should have-
Judy: That’s almost like, that’s almost like right out of that documentary that was recently out “I Care A Lot”, where they were all in cahoots together, the doctor issuing the medical certificate and that was a dramatization but look at the Britney case, it’s not that far-fetched.
Brian: Yeah so that lawyer should never have had that, that shows the lawyer not representing his client. I mean he should have an ethical complaint filed against him for that.
Judy and Leah: yeah
Brian: So we’ve, already, see these go very quick Judy. This is our second one and we’re 20 minutes into a 30-minute thing. So let’s quickly go through how do you avoid guardianship and conservatorship in Massachusetts or how can you try to avoid?
Judy: Well, while people have the ability they should have a Health Care Proxy executed appointing a surrogate medical decision maker if they’re ever unable to make decisions or communicate decisions for themselves with an appropriate backup, I always tell people. That can avoid a guardianship. The durable power of attorney same thing appointing surrogate decision makers to deal with finances but that’s a little trickier there’s a some of those documents can be very very powerful and they’re the means by which people are exploited sometimes, so you really need the advice of counsel and not getting an online form with that. And then some people choose to put their property in trust which you should speak to because you’re like the trust guru in my mind, which you know appointing somebody to avoid, they wouldn’t need a conservator if they’re probably listening to us-
Brian: if everything’s in there, but you can’t put an IRA retirement plan inside a trust you know. The Health Care Proxy is kind of an interesting way to avoid guardianship but not always because sometimes you have competing Health Care Proxies where you know the child who’s with the parent at that time has them do a new one and it’s bouncing back and forth. The other problem is there’s something in the law that says if the person seems to be disagreeing with the decisions of the health care agent then that might be treated as though it’s being revoked.
Judy: I think that’s the case if somebody’s in a facility and they’re being treated with anti-psychotic medications, if they so much as swipe the nurse’s hand away, that’s a revocation of that extraordinary authority and then a guardianship is needed. Now, some facilities will make the family get it and some will just get the medicine in some other way.
Brian: And there’s a way to go back in the probate court and get it validated.
Judy: I’ve never done that. I’ve always felt that it’s the same amount of time and effort to affirm the Health Care Proxy as opposed to just get the guardianship anti-psychotic authority, Rogers.
Brian: Yeah because you could go back and forth with Health Care Proxy issues and if you get a guardianship that may be permanent in many cases.
Judy: Yeah. One more thing, a pet peeve, I don’t think it’s always the family member, ‘Johnny takes mom to the doctor today’, ‘Mary takes her the next time’, I think it’s the facilities automatically say here sign this and give people a new Health Care Proxy instead of saying wait there’s one in the medical record.
Brian: Right. If they can, if they can find it then it should be valid the old one should, should apply.
Judy: Yeah so we should be instructing our clients to make sure you say, “No I’ve got one already and here you go”.
Brian: I tell my clients to keep copies of theirs and if they’re married, their spouse is in their car, so you know, if your spouse is being rushed to the hospital your instinct is going to be to drive there and not to think. You’re not going to think about, ‘oh I got to go back to the house and get the file’, you’re going to drive there and if you know you got it in the car then-
Judy: Yeah, that’s a good idea.
Brian: -you have it right away. So let’s move on to how do you end a conservatorship in Massachusetts, or a guardianship.
Judy: Petition to terminate. You have to get medical evidence that it’s no longer warranted just to see you have a medical, maybe a medical certificate saying not confused anymore. I’m exaggerating.
Brian: Right, you’re going to file it, you got to give notice you just can’t get rid of it quickly.
Judy: No, no.
Brian: And the conservator is not in charge of the money anymore as soon as it’s over, right. So you’re supposed to get all get all your assets back and I think there’s a duty to let the court know, if you’re the one in charge, I think you have a duty to monitor and determine whether it’s still needed all the time.
Judy: That’s specifically asked for on that annual report that’s filed so-
Brian: Right but that’s annual, so you know
Brian: I think you can report a little quicker if you think there’s no need for it. We only got a few minutes left. So Leah, what’s what’s the Britney situation looking like today?
Leah: Well, in 2020 she was able to get one of her long-term caregivers Jodi Montgomery to become co-conservator with her father, which sort of made the situation better for her given that a lot of the conservative abuse that she alleged was against her father. In 2021, her court-appointed lawyer, her manager and the co-conservator of her finances, all resigned from their positions following her testimony that outlined the abuse she faced. And then in July, she was allowed to appoint her own lawyer and he filed the petition to get Jamie, her father, removed as the conservator, and then in this last month, late July or late August, Jamie reluctantly agreed to step down as conservator and he plans to resign. And then this past weekend she got engaged to her boyfriend of five years Sam Asghari.
Brian: There’s a big difference between planning to resign and resigning and it seems to me his lawyer is trying to get a settlement that he doesn’t get sued so before he steps down he’s probably trying to prevent him from being sued for whatever he did in the past. I just continue to be surprised that somebody who’s a working entertainer had no rights; all her civil rights had been stripped for her for what was that 14 years?
Judy: 2008, the permanent I think?
Brian: 2008, you know-
Judy: That’s crazy.
Judy: And it’s sad, that in this case thank goodness it brought it to light, there’s even federal legislation pending and guardianship as you know it’s a state law but it’s sad there’s so many cases that aren’t highlighted like Britney’s. It happens.
Brian: All right, so it can happen to somebody here but it’s really less likely to have this happen now under the current law with all the things that are required, all the reports, the ability to provide information if you’re an outsider, I just don’t see that happening here even though it happened a client of mine be before the law changed.
Judy: Right the MUPC really toughened things up and provided a lot more protections.
Brian: Right, but so everybody should still make sure they get a Health Care Proxy in place and there are different kinds of powers of attorney, well you know they’re the one that’s effective now one that’s effective in the future and powers of attorney have different powers in them. You can have one power that gives the power to make gifts and you could have another one that doesn’t. You could give, you could have checks and balances in the one that gives powers to make gifts and you can have a lesser power of attorney to somebody who’s handling finances for you because you may not want them to have the unbridled power to give everything you have away.
Judy: One other thing I would say, I would caution people from doing an online power of attorney, they’re not worth the paper they’re written on. I just had another one yesterday and unfortunately this, the principal, the the woman is not competent to sign a new one, so you know they’ll have to go to court to get a conservatorship because the power of attorney was just an online form. So.
Brian: Right, powers of attorney can be broad or they can be narrow and to me one of the bigger issues in the power of attorneys to what extent should you be allowed to make gifts if you’re the one in charge. I see powers of attorney that have severe limitations, that have no applicability to the tax law and I see some that are just broad they can you can give it all to yourself. I try to have the power in the power of attorney, the power to make gifts, match up with the will, so that nobody can take advantage of the situation.
Okay so I guess, I think we covered enough today. We’ll have you back Judy for another, we’ll do another webinar together, if you’ll come back.
Judy: I’ll think about it.
Brian: All right, well thank you for attending and-
Judy: Thanks for having me
Brian: Take care, bye.