by Franca Tavella

Controversy regarding Britney Spears’ conservatorship continues to make headlines as Britney’s court-appointed attorney, Samuel D. Ingham, III, resigns after thirteen years.  On July 14th, the Los Angeles County Superior Court Judge overseeing the case, approved Mr. Ingham’s resignation and ruled that Britney could select her own attorney to represent her moving forward. Although considered a win for #FreeBritney supporters, it seems obvious that Spears should have been awarded this right long ago.  Guardianships can present complexities for all parties involved, and as a result, it is important for Pennsylvania residents (and anyone following the #FreeBritney movement) to understand these arrangements and the essential rights of incapacitated persons.

A conservatorship, or guardianship as it is known in Pennsylvania, is a legal structure in which the court appoints an individual or an organization (the “conservator” or “guardian”) to handle another individual’s (the “conservatee” or “incapacited person”) personal and financial affairs due to his or her physical or mental impairments, whether caused by age or otherwise.  The terms “conservatorship” and “guardianship” are often used interchangeably, and the laws governing them vary from state to state.  In Pennsylvania, there are two types of guardianships –  guardianships of minors and guardianships of incapacitated persons – both of which are governed by Pennsylvania’s Probate, Estates and Fiduciaries Code (the “PEF Code”).  The procedure for seeking either type of guardianship is further prescribed by State and Local Rules.

Under Chapter 55 of the PEF code, the court, upon petition and hearing, may adjudicate a person incapacitated and appoint a guardian(s) of his or her person if it is established by clear and convincing evidence that the alleged incapacitated person is unable to effectively receive and evaluate information and to communicate decisions relating to his or her physical health and safety.  Similarly, a guardian(s) of the estate may be appointed if it is established by clear and convincing evidence that the alleged incapacitated person is unable to manage his or her financial affairs and to make and communicate responsible decisions relating thereto.  A guardianship of the person and/or of the estate may be temporary (i.e., in the case of emergency guardianships which have a set duration), limited, or plenary in nature.  Regardless of the type of guardianship being sought, the alleged incapacitated person (“AIP”) is entitled to the following rights:

  • At least twenty days before the hearing, the AIP must be personally served with written notice of the proceedings, including the date, time and location of the hearing, along with a copy of the underlying petition. This notice must also explain, in language the AIP is most likely to understand, the seriousness of the proceedings and how the AIP’s rights will be impacted.
  • The AIP has the right to request counsel. The AIP also has the right to have counsel appointed by the court and to have such counsel paid for if the AIP cannot afford it.
  • The AIP, or his or her counsel, may request that the hearing proceed with or without a jury. It can also be requested that the hearing be closed to the public.
  • The AIP may petition, for cause shown, that an independent evaluation be obtained in the determination of capacity.
  • The AIP must be present at the hearing unless a physician or licensed psychologist states that the AIP’s physical or mental condition would be harmed by attending.
  • After the hearing, if the AIP is adjudicated incapacitated, he or she must be informed, within ten days, of his or her right to appeal the decision, and to petition to modify or terminate the guardianship.
  • An incapacitated person has the right to petition the court for a review hearing at any time during the guardianship, but especially if there has been a significant change in the person’s capacity, or the guardian has failed to perform his or her duties in accordance with the law or to act in the best interests of the incapacitated person.

Although the ultimate outcome of Britney’s conservatorship dispute remains unclear, it is anticipated that her new attorney, and former federal prosecutor, Mathew S. Rosengart, will waste no time filing a petition to terminate the thirteen-year long conservatorship, or in the very least, petition for the removal of Britney’s father, Jamie Spears, who continues to serve as the conservator of his daughter’s $60M estate. As allegations of “conservatorship abuse” continue to emanate from both sides, and with Rosengart now acting as Britney’s advocate, there is little doubt that we will continue to be hit with developments in this case more than one more time.

Kleinbard’s Franca Tavella is the author of this blog and is a member of the Firm’s Trusts and Estates practice. Franca has a special focus on limited and plenary guardianships and regularly oversees various aspects of guardianship proceedings.