In a voice trembling with anger and desperation, pop star Britney Spears has repeatedly petitioned in court to be exempt from the conservatory authority that has controlled her money and private life for 13 years. She also asked the judge to break the arrangement without subjecting her to a psychological examination.
It is a requirement that legal experts say cannot be met. The mental health assessment is usually the pole star in a constellation of evidence for a judge to consider when deciding on restoring independence.
Its underlying purpose is to determine whether the conditions that led to the imposition of the restoration have stabilized or resolved.
The evaluation process, which merges mental health criteria with legal standards, shows why the exit from strict supervision is difficult and rare. State laws are often ambiguous. And their application can vary from district to district, judge to judge, case to case.
Isn’t Ms. Spears’ artistic and financial success proof that she is self-sufficient?
Yes and no. A judge looks for what is called “capacity” in the law. The term generally refers to benchmarks of a person’s functional and cognitive skills, as well as their susceptibility to harm or coercion.
Under California law, which governs the case of Ms. Spears, a person deemed legally competent can articulate risks and benefits in making decisions about medical care, wills, marriages, and contracts (such as hiring an attorney), and is self-sufficient in clothing and stay.
Annette Swain, a Los Angeles psychologist who conducts neuropsychological research, said that if someone doesn’t always show good judgment, it doesn’t mean they lack capacity. “We can all make bad choices at many points in our lives,” she said. “But that doesn’t mean that our rights should be taken from us.”
Even so, Ms. Spears’ professional and financial achievements do not speak directly about whether she has regained the “legal sanity” she lacked in 2008 after a series of public breakdowns caught breathlessly by the media. At the time, a judge ruled that Ms. Spears, who failed to appear in court, was so fragile that a conservatory order was warranted.
Judges usually approve conservatories for one of three broad categories: major psychiatric breakdown; a chronic, worsening condition such as dementia; or a mental or physical disability that critically impairs functionality.
Markings that indicate that a person is able to function again seem to set a low bar. In practice, however, the bar can be quite high.
“’Recovered’ before the psychotic break? Or how old is the person now? That phrase is full of value judgments, ”said Robert Dinerstein, professor of disability rights at American University.
The records describing the rationale behind the petition by Ms. Spears’ father, Jamie Spears, to become his daughter’s conservator are sealed. Several factors indicate that the judge initially viewed the situation as serious. She appointed restorers to oversee Ms. Spears’ personal life and finances. She also ruled Ms. Spears couldn’t hire a lawyer of her own, though a lawyer the singer consulted at the time said he believed she could.
Earlier this month, Los Angeles Supreme Court Justice Brenda Penny said Ms. Spears could keep her own attorney.
Does the “capacity” differ between states?
Yes sir. Some states, like California, describe basic functional skills. Others don’t. Colorado recognizes modern advances such as “adequate and appropriately available technological support.” Illinois looks for “mental deterioration, physical incapacity, insanity, developmental disorder, gambling, idleness, debauchery, excessive use of intoxicants or drugs”.
Sally Hurme of the National Guardianship Association commented, “You might be unable to work in one state but not in another.”
Who carries out the psychological assessment?
Ideally a forensic psychiatrist or a psychologist with experience in neuropsychological assessments. But some states only mention “doctor”. Psychiatrists place more emphasis on diagnoses; Psychologists emphasize tests that measure cognitive skills. Everyone reviews medical records and interviews family, friends, and others.
Assessments can extend over several days. They vary in depth and duration.
Eric Freitag, who conducts neuropsychological research in the Bay Area, says he prefers to interview people at home, where they are often more comfortable and where he can assess the surroundings. He asks about financial literacy: paying bills, health insurance, even counting change.
Assessing safety is key. Dr. Friday will ask what the person would do in case of fire. “I would call my daughter,” answered one of his subjects.
Who will choose the reviewer?
Ms. Spears has not been able to select her appraisers in the past as the restorer has the authority to make these decisions. However, if she wishes to dissolve the conservatory, she can choose the reviewer to build her case. If the restorer, her father, opposes her request and disagrees with her selection, he could nominate a candidate for additional evaluation. Ms. Spears would likely cover both tabs as the Conservatory’s expense.
To avoid a fierce expert battle and the appearance that an appraiser hired by either camp would be inherently biased – plus the burden of having two reviews on Ms. Spears – the judge could try to get both sides to get an independent, judicial one ordered to agree doctor.
What influence does a psychological diagnosis have on an evaluation?
Many states specifically state that a diagnosis of severe mental disorder alone is not proof that a person should remain in care.
Stuart Zimring, a Los Angeles County attorney specializing in elder law and special needs trusts, noted that he once represented a doctor with schizophrenia and bipolar disorder who was under a conservatory. The doctor’s rights were eventually restored after demonstrating he attended counseling sessions and was taking medication.
“It was a happy day when the conservatory ended,” said Mr. Zimring. “He was allowed to practice medicine again, under supervision.”
Psychologist Dr. Swain in Los Angeles.
“Whatever you diagnosed with Britney Spears, was it so serious that she didn’t understand the decisions she had to make, that she couldn’t take adequate care of herself?” She asked. “Where do you draw this line? It’s a moving target. “
Does the judge have to accept the findings of an expert?
No, but judges usually do.
What yardstick does a debt restructuring judge use to make a decision?
In most states, when a judge approves a restoration that restricts a person’s autonomy, the evidence needs to be “clear and convincing”, a rigorous standard that is just below the standard of “no reasonable doubt”.
But if a conservative wants to regain those rights, many experts believe that the standard should be more lenient.
Some states actually use a lower standard for finishing a conservatory. In California, a judge can do this by determining that it is more likely (“preponderance of evidence”) that the conserved person is legally competent. However, some states say that in order to get a ticket, the evidence still needs to be “clear and convincing”.
Most states don’t even set a standard.
“The underlying assumption is that if you got the process right, everything would be fine and we wouldn’t be depriving people of any rights,” said Jennifer Mathis, associate director of the Bazelon Center for Mental Health Law. “Our view is that the process is fundamentally broken and in so many cases we should not seek guardianship.”
If someone is fine, is the conservatory no longer necessary?
Yes and no. “Judges are haunted by people who have been released and disaster happens,” said Victoria Haneman, professor of trust and estate law at Creighton University. “So they are pursuing a conservative approach to freedom.”
Zoe Brennan-Krohn, disability rights attorney at the American Civil Liberties Union, described the Kafkaesque riddle of the Restoration: “If she’s doing well, the system works and should be continued. If she makes decisions that others do not agree with, she is unreliable and needs the system. “
Or, as Kristin Booth Glen, a former New York State judge who oversaw such cases and is now working on reforming the system, put it: “Guardianship and guardianship are like cockroach motels: you can check in but not check out.”
Can a reviewer recommend a less restrictive approach than a conservatory?
Once in a while. Judge Glen once approved the termination of the tutelage of a young woman who was originally believed to have the sharpness of a 7-year-old. After three years of deliberate intervention, the woman has been able to fully participate in her life since she was married and raised two children. She relied on an “assisted decision-making” team that Judge Glen described as “a less restrictive alternative to the draconian loss of freedom” of guardianship.
An assisted decision-making approach has been welcomed by the Uniform Law Commission, which drafts model laws. It is said that judges should seek “the least restrictive alternative” to the conservatory.
So far, only Washington and Maine have fully adopted the model recommended by the Commission.
Samantha Stark contributed to the coverage.