Free Britney? Better to Reform Conservatorship for Everyone.

Thanks to a wave of recent publicity, the “Free Britney Spears” movement is creating momentum to free some of the 1.3 million Americans under legal guardianship. Guardianships—or “conservatorships” in California—allow a court to designate a third party to control someone’s finances, make medical decisions on their behalf, and decide where they live; the ACLU calls the “greatest deprivation of civil liberties aside from the death penalty.” As a sociologist studying California’s broken mental health system, though, I’ve spent the last three years hearing a different story—about a conservatorship system that makes it too difficult for parents to intervene in the lives of family members with debilitating illness. This year, California has a chance to address both problems, creating a robust public guardianship system that better protects the rights of some and the health of others.

For good reason, it is very difficult to conserve a person living with a severe mental illness. I’ve spoken to a mother who couldn’t get a conservatorship for a son with schizophrenia who lost 100 pounds starving himself. I’ve interviewed another who wasn’t able to keep her son in the hospital even after, in a manic episode, he broke into her home and cut himself out of every family photo. One let her homeless son steal a car so she could have him arrested and get treatment in California’s most accessible mental health facility, jail. Parents like these are behind several bills that will be discussed in the legislature this year to make it easier to place people with psychiatric disabilities on conservatorship.

How did Spears’ father Jamie do what these families found impossible? He took advantage of California’s two-track conservatorship system, half of which is being left out of discussions for reform. In 2008, Spears had a very public psychological breakdown in response to the crushing scrutiny of tabloids and paparazzi. Police placed her on a 72-hour involuntary mental health hold, which is the first step to getting onto a conservatorship through the Lanterman-Petris-Short Act (LPS). The act covers people whose mental illness makes them “gravely disabled.” Over 100,000 Californians are placed on these holds and transported to hospitals for evaluation every year.

Fewer than two thousand people per year hospitalized through LPS make it onto a LPS conservatorship. Spears would never have qualified because the LPS standard, “Grave disability,” is exceedingly strict. It requires that someone on conservatorship be unable to provide for food, clothing, and shelter despite intensive treatment. As one clinician told me, someone who is gravely disabled could not eat an apple you put in front of them if they were starving or put on a coat in sub-freezing weather. In California, if you can pitch your tent outside of a roadway, you are meeting your need for shelter. Spears certainly has not been meeting this standard over the last decade while she was performing in Vegas and producing multi-platinum albums.

Instead, at some point Spears moved from the LPS to the Probate Conservatorship system. The “Free Britney” activists who have been protesting outside her court hearings are right to be concerned about the move. While Spears’ problems have almost always been described as originating in a mental health crisis, probate conservatorships are typically for people with impaired decision-making capacity as a result of developmental disabilities or dementia. The bar for proving someone needs a probate conservatorship is lower, the oversight is less intense, and probate conservatorships are permanent. LPS conservatorships have to be renewed yearly.

Spears’ case reveals clearly the flaws in both conservatorship system. The strict definition of “grave disability” made it impossible for her to have a shorter-term conservatorship focused on getting her intensive treatment and getting her off conservatorship. But the looser rules for Probate Conservatorships are what keep her—and an unknown number of conservatees around the state—from regaining control of her life even after her crisis has clearly passed. California can tackle both these issues simultaneously by broadening the reforms currently being discussed beyond simply revising the “grave disability” standard.

First, the state needs to strengthen legal representation for all potential conservatees. As the recent New York Times documentary showed, even Britney Spears was not able to get the lawyer of her choice when faced with conservatorship. Indigent conservatees are usually represented by Public Defenders who have, as one told me, “absolutely zero” prior training in such cases. Many people I spoke to think that Public Defenders are doing a difficult job phenomenally well. But California might be better off establishing a body modeled on New York’s Mental Hygiene Legal Services to guarantee specialized representation to all conservatees. It would ensure there’s a lawyer ready to advocate when someone is ready to leave conservatorship.

Second, the state needs to strengthen the mandate to consider alternatives to conservatorship. Some have argued Spear’s conservatorship is not concerning because, until recently, she wasn’t objecting to it. Indeed, in my research, I found that as many as three-fourths of LPS conservatees do not contest their conservatorship, even though they frequently involve forced medication and months spent in a locked psychiatric facility.

But it’s hard to know whether people consent to conservatorship because they actually accept curtailing their rights, or just because they know they need help. It takes a dedicated, trained, and independent lawyer to assess this and to consider if that help could instead come through a less-restrictive Psychiatric Advance Directive or Shared Decision-Making framework. We should remember that the most important alternative for many non-celebrity conservatees would be a robust public system of voluntary mental health services and supported housing.

Finally, reforms to conservatorship should strengthen independent oversight of the system. State government used to have an office in charge of regulating conservatorship and other kinds of involuntary mental health treatment. It closed in 2012. Now we don’t even have reliable data on how many people are conserved, for how long, and with what results.

Conservatees need another layer of protection beyond the courts. Multiple judges and conservators I spoke to were bewildered at how the court investigator in Spears’ case determined she lacked capacity to manage her affairs. Probate investigations should be conducted by the county Public Guardian, an agency independent of the courts which already handles LPS cases. A better-funded Public Guardian’s office could also proactively seek conservatorships for people in the public mental health system for whom all other options have been tried—like the children of the families I interviewed.

Britney Spears’ case has brought welcome attention to problems in California’s conservatorship system. Would the reforms I am proposing “Free Britney”? Maybe not. But it would give us confidence that the system is operating in her best interest—and the best interests of the thousands of extremely vulnerable Californians who don’t have a movement protesting for them.

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