The recent media attention to pop star, Britney Spears’ conservatorship has painted a dismal picture of arrangements whereby a court-appointed individual has authority to control various aspects of another individual’s finances and personal decisions. Public opinion has been harshly critical of the long-running conservatorship, fueled by Spears’ claims that her conservators are not just overstepping their authority, but that they are abusive and exploitive.

Spears’ pleas to end her conservatorship have caught the attention of not only her fans and the Hollywood elite, but of legal and mental health professionals who are interested in legislative reform to conservatorship arrangements. Conservatorships (called “guardianships” in Wisconsin) are meant to protect vulnerable individuals by placing their decision-making rights in someone else’s hands. If the decision-making authority is in the hands of someone who is abusive or exploitive, an individual under conservatorship is particularly unable to defend themselves given their incapacities. This is where court oversight becomes a necessity.

Importantly, as with most areas of the law, the legal rules differ from state to state. In Wisconsin, there are two arrangements whereby a court-appointed individual controls another person’s finances or their personal/health care. The first arrangement is called “guardianship,” which is an involuntary appointment of a responsible person (called the guardian) for someone who the court has determined cannot care for himself or herself, or who cannot manage his or her own finances (called the ward). The court can appoint a guardian of estate (finances) or a guardian of person, or both. The second arrangement, called “conservatorship” is a voluntary arrangement whereby an individual (called the conservatee) asks the court to appoint a conservator to handle their finances. The voluntary conservatorship can be terminated by the conservatee at any time upon request. In many states, including California where the Spears case is being addressed, a conservatorship is an involuntary procedure.

Guardianship and conservatorships are often used for people who have severe cognitive impairment that renders them substantially incapable of receiving and evaluating information necessary to make appropriate financial, personal and health care decisions. The impairment may be the result of conditions such as dementia, developmental disabilities, mental illness or brain injuries, for instance.

In Wisconsin, guardianship is considered an extreme step used as a last resort and when there are no other less restrictive options. A ward has the right to their own attorney, the right to present medical evidence that their incapacities are not sufficient to require guardianship, and a say in who becomes their guardian. In addition, the court is required to appoint an independent attorney, called a Guardian ad Litem, whose role is to evaluate whether guardianship is in the proposed ward’s best interests.

Wisconsin’s guardianship laws have already been reformed to provide that a ward’s rights are only removed if absolutely necessary. A ward should retain the right to make all decisions he or she is capable of making with appropriate supports in place. The authority of a guardian in Wisconsin only extends to those areas of functioning that a person cannot manage on their own (or on their own with support). It is not intended to be used to protect someone from making “bad” decisions. The court is required to evaluate whether a ward should lose their right to take part in all areas of decision making, or whether the ward should retain rights in certain areas.

Ending a guardianship can be difficult if the ward cannot demonstrate by medical or other evidence that the condition resulting in their incapacity has improved, or that other supports have allowed appropriate functioning to resume, but the law is clear that a ward may request (petition) to end their guardianship. Further, if the law is intended to be less restrictive to the individual, it stands to reason that the conservatorship should be terminated if the individual no longer meets the standards.

In Spears’ case, it is impossible to speculate whether the conservatorship should be terminated without knowing all the facts. Persons under guardianships and conservatorships often have improved functioning in many personal and financial aspects of their lives simply because they are benefiting from assisted decision making, medication management and are free from outside exploitation. Under appropriate review and oversight, the conservatorship or guardianship should nonetheless be terminated if the standard for incapacity is no longer met. This can be a hard pill to swallow for concerned family members who believe – often correctly – that once assisted decision making is over, the dysfunctional behavior will resume.

Either way, it is important to remember that although the case of a famous pop star might bring about legislative reform, when handled properly, conservatorships and guardianships play an important role in protecting elderly, disabled and mentally ill adults from abuse, exploitation and the harm that could result from the inability to make effective decisions. If you are concerned about a loved one with impaired decision making, it is important to talk to an attorney who specializes in guardianship and conservator arrangements regarding appropriate options.

Having adult children provide care and support to an aging or ill parent can be very helpful, but in some cases, can be a cause of stress and family conflict.  Caregiving can bring families closer as they provide mutual support, but in some situations, the stress and pressure of caregiving leads to strained relationships.  This strain may be caused by old patterns of family dynamics involving unresolved past wounds or childhood rivalry or, in some cases, because one or more children are unable to accept the reality of the parent’s illness and eventual death.

Often, conflict is caused by an unequal division of caregiving duties. A parent will typically name one child as agent to make health care and financial decisions in the event of incapacity by completing health care and financial powers of attorney.  The parent will usually choose the person they believe to be the most responsible, the most available or the closest in proximity.  Regardless of the reason, choosing one sibling over another sometimes leads to the caregiving child feeling overburdened with shouldering all of the caregiving duties while the other siblings feel resentful, left out and sometimes suspicious of the caregiving child’s actions.  These feelings often lead to individuals seeking the advice of an elder law attorney regarding the designation of one of the children as agent in a power of attorney. The advice that is most typically sought includes: the validity of the Power of Attorney, agent decision making, financial feuds and the mistreatment of the parent(s).

Questioning the Validity of the Power of Attorney.

Since a person must be competent in order to appoint an agent under a power of attorney, accusations are often made that the parent did not understand the documents or was unduly influenced to sign a power of attorney.  If the parent truly was not competent, Adult Protective Services can step in or the power of attorney can be invalidated.   However, if the accusations are more related to the dissention between family members, the result can often entail an investigation into the agent’s actions that ultimately only results in more family tension and unnecessary legal costs on both sides.

Agent Decision Making.

If siblings do not trust the child who is named as agent, it can cause ongoing questioning of every detail related to the agent’s decisions.  Sometimes, siblings challenge legitimate decisions made by the agent child because they are not as informed or do not understand, which results in continuing resentment and exhaustion on the part of the caregiver.  If an agent is actually making questionable decisions, Wis. Stat. s. 244.16 provides for the actions of a financial agent to be reviewed by the court and Wis. Stat. s. 155.60(4) provides for the actions of the health care agent to be reviewed by the court.

Financial Feuds. 

Finances are a huge source of dissention between family members.  Using a parent’s funds to provide for long-term care will likely reduce potential inheritance, leading to discord between siblings who are not supportive of the type of care being provided.  Also, a caregiving child will sometimes request compensation for caregiving services.  Although such payments are allowed by law, the caregiver’s siblings might object to such payments.   Potential heirs can bring a legal action to review the financial conduct of an agent who has acted illegally or unethically, or petition the court for guardianship to allow for court oversight of the actions of the person in charge.

Abuse, Neglect and Financial Exploitation.

In some cases, the caregiver may be accused of elder abuse, neglect or exploiting the finances of the parent.  These concerns can be reported to Adult Protective Services.  If necessary, a concerned family member can obtain an injunction under Wis. Stat. s. 813.123, to restrain the caregiver from further abuse or financial exploitation.

While an elder law attorney can help with legal remedies for agents who are abusive or exploitative, in most cases the emotional issues are better addressed by opening the lines of communication on both sides.  The following are potential actions that the caregiver and siblings can respectively take to open the lines of communication.

For the caregiver

• Communicate with family members. Even if you do not all get along, let everyone know what is happening with their parent, both personally and financially.
• Initiate family meetings, even if everyone will not participate. Discuss the current health and financial status and the next steps.
• Make a list and prioritize the types of services and support that the parent needs now and may need in the future.
• Identify what support can be provided by the caregiver, other family members or outside services.
• Ask for help, and delegate appropriate responsibility to willing family members.
• Remember that as caregiver, you may end up carrying a heavier load than your siblings and some may not help at all. Having more responsibility may not feel “fair,” but the more important issue is to make sure your parent is receiving appropriate care.

For the siblings of the caregiver

• Accept that the caregiver child has likely been chosen by the parent because of the trust your parent had in him or her, and not because your parent did not want you to act.
• Attend family meetings and ask questions about status, next steps and services needed.
• Be clear about what help, if any, you are willing and able to provide so that the caregiver’s expectations of you are appropriate. Caregiving can be exhausting and emotionally draining.  If you cannot take on specific responsibilities, offer to be a sounding board or a listening ear when the caregiver needs to vent.
• Consider using outside sources to work through family issues such as mediators, counselors or social workers. A third party can be valuable in providing perspective without taking sides.

Since everyone’s situation is different, there is no solution that will work for every family in terms of dealing with caregiving and family conflict.  Open and honest communication, focused on the needs of the parent, however, can eliminate some of the tension and hard feelings, resulting in better help for the parent and better help for each other.