"Ma'am, I didn't know I could petition the conservatorship to end it. I'm sorry for my ignorance, but I honestly didn't know that," she told the judge.
She can, and in fact, so can other people on her behalf. California Probate Code Section 1861 states that a petition to end a conservatorship may be filed by the conservator, the conservatee, or "The spouse, or domestic partner, or any relative or friend of the conservatee or other interested person."
("Interested person" is a bit of a squishy term. Kohn says that any fan couldn't necessarily file a petition on Spears' behalf, but it's meant to recognize diverse family and friendship connections that don't require blood or any time of formal recognition.)
From there, Spears would have to show proof that she can take care of herself both personally and financially. Which is the hard part — for instance, how do you show you've been able to pay your bills when you haven't been allowed to pay your bills? Kohn says that states like California put the burden of proof on the individual. "And that's especially a problem because the person subject to conservatorship or guardianship is already disadvantaged by the bias and stigma created by the initial determination that they lack capacity," she said.
The court can give the conservatee more power ... if it chooses
But even if the court was uncertain about Spears' capacity, it does have the ability to grant her back some power over her money, says Ken Heisz, a partner at Gorman & Miller, who's written about the opportunities for financial abuse in conservatorships. This wouldn't terminate the conservatorship, but it would give the conservatee more opportunities and authority to make decisions.
And those decisions can "be submitted to the court for the court to view," says Heisz. That way a conservatee can start to prove that they're able to take care of themselves.
The court actually has a lot of power in these situations. Kohn says that even if Spears never files any petition to end the conservatorship the court has the power to do so itself.
California also has probate court investigators, says Heisz. And their job is to periodically go out and visit with the conservatees, spend time with them, and submit a report to the court. While these reports are sealed, The New York Times has reported that Spears told a court investigator back in 2016, that the conservatorship had "too much control" over her life.
An opportunity for broader change?
While Spears' remote appearance in front of the court was a turning point in her case, Heisz hopes that this option could be used more widely in other guardianship or conservatorship cases. Conservatees are often infirm or frail, making public appearances in front of a judge difficult and burdensome.
"But the pandemic has made judges and attorneys more comfortable with Zoom-type hearings," says Heisz. "And requiring such would be a safeguard against the occasional rogue attorney or conservator who are telling the court something different than what the conservatee wants."
Kohn also hopes the attention to the Spears case will bring momentum into changing current guardianship and conservatorship laws nationwide. Kohn had a hand in drafting model legislation by the Uniform Law Commission that would reform laws to make it harder to impose guardianships and conservatorships, and easier to modify or end them.
While Spears' case might seem odd and outrageous, Kohn says for people working on these issues every day, "it's really just showcasing problems that are very familiar and very well known."
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