Published in WFO Magazine November Issue #1Â
Britney Spears is free! The end of September saw a Judge finally suspend her father as her conservator, 13 years after he was appointed to manage all aspects of her life. There will be so much about this complex legal matter that we will never know, so we are all left wondering:Â How does a talented, world-famous musician end up being totally unable to manage her life? And can the same thing happen here, in Australia?
What is a Conservatorship?
Under Division 4 of the California Probate Code, a conservator can be appointed for a person who is:
- “unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter…”; or
- “substantially unable to manage his or her own financial resources or resist fraud or undue influence…
In California, a Court is only allowed to appoint a conservator if there is “clear and convincing evidence” that the person is unable to do the things noted above for themselves.
We may never know what “clear and convincing” proof the Court had 13 years ago when Britney’s father was appointed as her conservator. We know from media reports that in 2008, Britney was hospitalised and evaluated in a psychiatric facility before the conservatorship was permanently made 8 months later.
We also know that as her conservator, Britney’s father exerted a tremendous amount of power over Britney’s personal liberties and freedoms, as well as her finances (and reportedly being paid to do it!).
Do We Have Conservatorships in Australia?
In a word, yes, but it is not called a conservatorship.
Throughout Australia, all States and Territories have laws that enable a person or organisation to be appointed to manage the affairs of people who do not have capacity to make decisions for themselves.
The powers given to the people or organisations who are appointed to manage someone’s affairs are very broad and, in some cases, will give almost total control over a person’s life to someone else. This can include matters such as managing finances, but can also include decisions about where someone lives, what they eat, what they wear and with whom they socialise.
The person or organisation appointed for property and financial matters is usually called an administrator and a person or organisation appointed for personal and/or health matters is usually called a guardian. However, the technical language can differ between the States and Territories of Australia.
The point at time that someone has lost capacity can be tricky to work out. Broadly speaking, capacity is defined as understanding the nature and effect of decisions, freely and voluntarily making decisions, and communicating the decision in some way. Capacity is also time-specific, decision-specific, and domain-specific.
This means that a person can have capacity, for example, to get married but not have capacity to make a Will!
Before an Australian Court or Tribunal will appoint someone to manage the affairs of a person, it must first be satisfied that the person does not have capacity.
A declaration by a Court of Tribunal that a person does not have capacity is serious. Can you imagine how devastating it must be to have that declaration made about you?
Appearing before a Court or Tribunal, when they are deciding whether you have capacity, is very confronting. The Court or Tribunal will get evidence from many different sources, and hearing your doctor, family members or friends speak about you can be a very difficult experience, especially if you believe that you have not lost capacity to make decisions for yourself.
Who Gets Appointed as a Substituted Decision Maker?
In short, any adult can be appointed as someone’s substituted decision maker. Also, there are organisations such as trustee companies that can be appointed. And often a State or Territory’s Public Institutions (such as Public Guardian, Public Trustee, etc) can be appointed as well.
Do Substituted Decision Makers Get Paid (Like Britney's Father)?
So here comes the standard lawyer answer that everyone hates, “It depends.”
In the author’s experience, it is rare that an individual will be paid for acting as someone’s guardian or administrator. Whether a person can be paid differs throughout Australia depending on which State or Territory you live in.
Trustee companies and Public Institutions are almost always paid for acting as a substituted decision makers.
Any payments that are made are made from the assets of the incapacitated person.
Are There Rules That Attorneys, Guardians, and Administrators Have to Follow?
Absolutely! At a fundamental level, the substituted decision maker is not supposed to impose their will on the person they are looking after. They are supposed to be making decisions for the person they are looking after as if they were that person (when that person had capacity).
This is a critical distinction that many substituted decision makers seem to miss.
Substituted decision makers must act in the best interests of the person they are caring for, and comply with the laws, duties, and responsibilities inherent in the role.
If someone is appointed as your guardian or administrator against your will, can you "fight it"?
Yes, it is possible to have a substituted decision maker removed, either because they are breaching their duties or because you have regained the capacity to make the decisions for yourself.
Like Britney, you would need to prove to the Court or Tribunal that the substituted decision-maker is not acting in your best interests or that you have regained capacity.
Again, appearing in a Court or Tribunal to have it decide whether you have capacity can be extremely stressful!
What can I do to prevent someone I don't want to ever make decisions for me from being appointed as my guardian or administrator?
This is the easy bit! All States and Territories of Australia have laws that allow you to choose who you want to make these types of decisions for you if you lose the ability to make decisions for yourself.
The way that the types of decisions are described, and the names of the forms all differ between the States and Territories (see below table), so if you have ever made one of these documents before, you should not assume that you are covered throughout Australia.
While mutual recognition laws between some States and Territories exist, the best thing to do is ensure that you have a current document made in the State or Territory in which you live. If you have assets and property in other parts of Australia, then it might be necessary to make enduring documents in separate jurisdictions.
The best way to make sure that you get to choose who would make decisions for you is to ensure that you have validly made enduring documents prepared by a lawyer who is qualified in this area of law.
The great thing about being proactive and doing these documents yourself before you lose the capacity to make decisions for yourself is that you get to place limits around the power you give, make very clear expressions of your wishes, and choose the people or organisation that you want to make decisions for you.
Do you insure your house? Your car? Your belongings? Your life? Consider the cost of seeing a lawyer to prepare these documents an insurance premium on the most valuable asset you will ever own – control over your personal freedoms and liberties – your life!
Enduring Documents Table
