#FreeBritney and I Care A Lot: How Conservatorships and Guardianships Can Be Used to Protect (and How to Protect Yourself From Needing One).

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The New York Times’ new docuseries episode on Britney Spears, “Framing Britney Spears”, the #FreeBritney movement, and the popularity of Netflix movie “I Care a Lot,” have spotlighted conservatorships and guardianships in mainstream media and culture.  Now more than ever, there is a sudden interest in conservatorships and guardianships, how they work, why they were employed against Britney Spears, and how they are used frequently with the vulnerable or elderly population at large.  While the heightened visibility of the Britney Spears case and the fictionalized events found in the “I Care a Lot” movie may make it seem like something that can only impact the rich or other people of means, conservatorships and guardianships can be both a real consequence or an option for those who have not set into place an appropriate estate plan in the event of incapacity.

Any time a person’s right to care for themselves and their finances are relinquished to the care of another, the facts to substantiate such a great personal intrusion are complex.  These actions require expertise to determine the appropriateness of such a protective arrangement or to fight against one when the circumstances are not appropriate.  The mechanisms to impose a guardianship or conservatorship, or to defend against such an action, vary across states based on each state’s statutes.  In Washington State, Chapter 11.88 and 11.130 RCW house the Uniform Guardianship, Conservatorship, and other Protective Arrangements Act.

Our Trust and Estate Litigation team is recognized amongst our peers for successful advocacy on behalf of their clients in dealing with conservatorships and guardianships. Let our team help you through possible lesser restrictive alternatives to a conservatorship and guardianship and help guide you through a conservatorship or guardianship proceeding if one is being considered for you or a loved one.

What is a Conservatorship or Guardianship and Who Can be Subject to One?
In Washington State, conservatorships and guardianships are currently terms used interchangeably as a form of protective arrangement of an incapacitated person. A guardianship can be established to make decisions over both the financial affairs (the estate) or the personal affairs of an individual subject to a guardianship.  Conservatorships refer to the protections related to financial affairs over the individual, while Guardianships refer to the protections related to the individual’s personal affairs (medical decisions, living placements, etc.).  Starting in 2022 each term will have very specific definitions for what they are, what type of protection they provide, and who may be subject to one.

Generally, a conservatorship or guardianship is intended to protect individuals with incapacities who cannot otherwise exercise their rights or provide for their own basic needs without help or some kind of protection.  An incapacitated person (or “Individual subject to conservatorship or guardianship” starting in 2022) is one who is significantly at risk of personal or financial harm based on a demonstrated inability to adequately to care for themselves or their property and financial affairs.  The most common categories of individuals subject to these protections are minors and vulnerable or elderly individuals.  Other times, like in the case of Britney Spears, guardianships or conservatorships are imposed on adults who have otherwise demonstrated an inability to manage their personal or financial affairs, or is at significant risk of personal or financial harm.  However, age, eccentricity, poverty, or medical diagnosis alone are not enough to justify a finding of incapacity to subject someone to a conservatorship or guardianship.

Courts Will First Look for Ways to Protect the Individual’s Liberty and Autonomy Before Imposing a Conservatorship or Guardianship.
Individuals who may be subject to a protective arrangement, conservatorship, and/or guardianship have constitutional due process rights and civil liberties that are not so easily set aside, despite what viewers might take away from the “Framing Britney Spears” or “I Care a Lot” examples. Because guardianships or conservatorships are extreme restrictions of an individual’s liberty and autonomy, Washington State puts in place many procedural checks to avoid and protect against the abuses that have been sensationalized in the Britney Spears and “I Care A Lot” portrayals of conservatorships and guardianships. The goal is to encroach on an individual’s liberty only to the minimum extent necessary to help the individual provide for his or her own health, safety, and management of financial affairs.

An individual that may be subject to a conservatorship or guardianship has the right to (1) an impartial investigation by a court-appointed guardian ad litem and can request the court to appoint a replacement guardian ad litem under certain circumstances, (2) a medical evaluation from a provider of his or her choice; (3) the appointment of an attorney to represent him or her and at no cost if the individual is indigent or facing a substantial hardship; (4) be present and be heard at all of the court proceedings; (5) a jury trial to contest the recommendation of the conservatorship or guardianship; and (6) other constitutional protections under the U.S. and Washington State Constitutions.

At the same time, a conservator/guardian appointed over an individual has a fiduciary duty to the individual. The court imposes checks and balances by requiring the conservator/guardian to provide annual reporting and accounting of their activities, medical and financial, on behalf of the individual to the court.  Further, Washington State provides for grievance processes in order to protect against abuses.

How is a Conservatorship or Guardianship Established?
While the court looks for lesser restrictive alternatives to ensure as minimal harm to an individual’s liberty as possible before implementing a conservatorship or guardianship, sometimes a conservatorship or guardianship is the only option, especially if the individual does not have any prior estate planning safeguards such as an appropriate power-of-attorney or trust.

In order to begin an action for guardianship or conservatorship, the party wishing to impose such protection over another person must petition the court, detailing the nature and degree of severity of the incapacity, along with descriptions of the individual’s assets, and areas of necessary care.  While the barrier to starting a conservatorship or guardianship petition for someone is low – to make sure that those who truly need help can easily access it – all the proceedings that follow to prove that a conservatorship or guardianship is actually necessary can be challenging. The burden of imposing a conservatorship or guardianship requires clear, cogent, and convincing proof, which is much higher than the standard burden of proof for most civil cases. Some examples of the court’s protections and procedures involved in the proceedings include:

  1. Hearings up to the possibility of a jury trial.  No conservatorship or guardianship can be put in place without prior hearing in front of the court where the alleged incapacitated individual has the opportunity to be heard. If an individual that would be subject to a protective arrangement opposes it, the court may order a trial and specifically, a jury trial, if the individual demands one.
  2. Guardians ad Litem. Special investigatory parties, called Guardians ad Litem, are impartial judicial officers appointed to inform the court about, and to represent, the best interest of the individual potentially subject to conservatorship or guardianship.  This could mean that the Guardian ad Litem conducts interviews and evaluates the individual, evaluates medical records, notes whether the individual is opposed to or supportive of the guardianship, and facilitates legal representation of the individual if he or she wants an attorney. Guardians ad Litem serve as neutral evaluators to inform the judge in deciding whether a conservatorship or guardianship, or other lesser restrictive alternative protections, would be appropriate.
  3. Lesser Restrictive Alternative.  A “lesser restrictive alternative” is any other approach which would restrict fewer rights than would occur under a conservatorship or guardianship. Courts will look for ways where the decision-making ability of the individual could be supported in other ways.  Usually, the court would consider the possibility of appointing a conservator or guardian only if there is no other workable option.  As such, if the individual had previously executed a Durable Power of Attorney designating a person to manage his or her personal, medical, or financial affairs, the court will likely defer to the designated power of attorney.  Another example is if an individual has previously set up a trust over their financial assets. In such cases, the court would defer to the management by the trustee as appointed by the individual, rather than leaving management to a conservator or guardian chosen by the court.  Both methods are less intrusive on personal liberty than a conservatorship or guardianship and preferred by the court, but require preplanning and execution by the individual before he or she may have become incapacitated.
  4. Limited Guardianships and Conservatorships.  Even if the court ultimately decides to impose a conservatorship or guardianship upon the recommendation from the Guardian ad Litem and after assessing that no “lesser restrictive alternatives” exist, the court can still consider whether to implement a full or limited conservatorship or guardianship.  Limited conservatorships or guardianships would restrict the powers of the conservator or guardian based on what the court and the interested parties decide – it might mean only granting some power over certain property rather than the entire financial estate of the individual, or limited power over an individual’s medical decisions.

At Helsell Fetterman LLP, we understand that conservatorships and guardianships are complex and intensely court-involved proceedings which require a high degree of expertise in conservatorship and guardianship statutes and case law. Our Trust and Estate Litigation team have successfully guided hundreds of clients and families through every step of the conservatorship and guardianship process and have the experience you need to assist you through the proceedings.

What Happens Once a Conservatorship or Guardianship is Established?
The Britney Spears conservatorship and the sensationalized fictional events in “I Care a Lot” can understandably intimidate the unaware into believing that all hope is lost once a conservatorship or guardianship is imposed upon a loved one. However, conservators and guardians are required to report annually to the court as to the progress of the individual subject to the conservatorship/guardianship and must meet the burden of proof of showing the continued need for conservatorship/guardianship over the individual. If the court determines that the conservatorship or guardianship is no longer necessary, or that a lesser restrictive alternative applies, the court is dutybound to modify or terminate the guardianship.

Washington State imposes a number of fiduciary duties upon an appointed conservator and/or guardian to protect individuals subject to conservatorships and guardianships. A conservator or guardian who breaches his or her fiduciary duty to the individual in his or her care is subject to removal from the role, court penalties in more serious breaches of duties, and can be subject to state-level investigations and sanctions by the attorney general’s office, adult protective services, or even law enforcement in extreme cases of egregious conduct. In addition, a conservator must post a monetary bond with the court that covers the amount of financial assets under the conservator’s care and management.  In the event of a breach or monetary loss, the conservator forfeits the bond in order to cover the loss in addition to any other penalty the court may impose.

Washington State is also one of few states which requires certification, licensing, and registration of professional conservators and guardians as a matter of state law. Whenever a family member or a friend are unable or unqualified to serve, the court can appoint a certified professional conservator or guardian who serves for a professional fee. A certified professional is subject to review by the state board and have their own complaint/grievance process in addition to the usual oversight and grievance process for regular conservators and guardians. A breach of fiduciary duty by a certified professional could result in revocation of certification/licensing with associated penalties in addition to the punishments that regular conservators and guardians would face.

Our Trust and Estate Litigation team have assisted conservators and guardians through the annual reporting process to ensure compliance with court ordered obligations and upholding the strict fiduciary duties imposed upon our conservator and guardian clients. We have also successfully petitioned on behalf of numerous clients subject to conservatorship or guardianship for modifications into lesser restrictive alternatives or outright termination of the protective arrangements. Let us see how we can help you.

Why are Conservatorships and Guardianships Necessary and Are There Ways to Prevent the Need For One in My Family?
The most common reason why a conservatorship or guardianship may be imposed upon an individual is where he or she can no longer manage his or her personal and/or financial affairs, and did not take the necessary precautions prior to incapacity to appoint an agent and make other appropriate arrangements.

The easiest way to prevent the need for a conservatorship or guardianship is to discuss your plans and wishes with your family and formalize these plans with a trusted estate planning attorney to assist you in executing the appropriate documents to make your plans a reality. Most well-intentioned families have discussed the plans and wishes of a loved one in the event of incapacity or death, but never follow through with the execution of an estate plan to make it official.

While the Britney Spears conservatorship and “I Care a Lot” movie have shined a spotlight on the world of conservatorships and guardianships, circumstances that necessitate a protective arrangement could impact families of all backgrounds and financial circumstances, including your own. In all of these situations, having a proper will and/or revocable trust, appropriate powers of attorney for finances and health care, and a health care directive could help prevent you from being subject to an unwanted guardianship or conservatorship in the future.

If you have not already done so, take some time to discuss your end-of-life plans and wishes in the event of incapacity and death. Then take the needed additional step of actually creating or updating your estate planning with a knowledgeable estate planning attorney in order to formalize the preventative measures that could necessitate a conservatorship or guardianship in the future

At Helsell Fetterman LLP, our nationally and regionally recognized Estate Planning Department can help guide you through the pitfalls and challenges you may face when planning the succession of your estate and personal affairs. If, or when, you find yourself needing to establish a conservatorship or guardianship over a loved one – or to defend yourself or a loved one from a conservatorship or guardianship action – our experienced litigation team will represent your interests in court to make sure you get the protection you need.

Kevin Khong and Victoria Wei are litigators in the trust and estate litigation practice group. They have extensive experience guiding clients through the guardianship/conservatorship process; vulnerable adult protection actions; contesting wills; and through estate and trust disputes under the Trust and Estate Dispute Resolution Act (TEDRA). Learn more about Kevin and Victoria and see how they may assist you or a loved one with these trust and estate issues.

About the Authors

Kevin Khong

Kevin is a Partner with the firm who practices in the trust and estate litigation practice group and who also specializes in civil appeals for a number of different legal practice areas.

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