Posted on Mar 05, 2021 in Private Client by Graeme Dickson
Lockdown 2 (or is it now 3?) has certainly increased our viewing of content on streaming platforms and often a theme can develop in documentaries and films which come out around about the same time. The legal concept of Conservatorship, as it is known in the US, has been brought into sharp public focus recently following the release of the New York Times’ documentary “Framing Britney Spears” which, among other topics, details the pop star’s seeming struggles to regain full autonomy of her affairs. “I Care a Lot”, on Netflix and Amazon Prime, touches on the issues surrounding conservatorship, or guardianship, as it is referred to in certain US states, albeit in a far more fictitious manner.
But what would have happened if Britney or Rosamund Pike’s character from “I Care a Lot” had lived in Scotland? In particular what are the safeguards provided for an Adult when they lose the capacity to look after their own affairs?
The Britney Story
As most will remember, Britney Spears rose to superstardom as a teenager with a series of worldwide chart topping hits from the late nineties to the mid noughties. In 2008, her personal life became the subject of intense media scrutiny and following a series of public breakdowns the pop star’s finances and welfare became the subject of court proceedings. Her father, Jamie Spears, was granted legal ‘conservatorship’ of his daughter’s welfare and her estate while she was hospitalised.
‘Conservatorship’, is a US legal concept whereby a conservator or guardian is appointed by a judge to manage the financial and/or personal affairs of a ‘conservatee’ due to the conservatee’s physical or mental limitations.
The media has then reported on the ongoing legal steps that have been undertaken to manage her assets and (largely driven by social media and her fans) the extent to which Ms Spears can be involved in these decisions.
The Scots law equivalent
The closest Scottish equivalent to Conservatorship is known as a Guardianship. As set out in the Adults with Incapacity (Scotland) Act 2000, a Guardian is appointed by the court and this process is used in situations when an adult is unable to make decisions regarding their welfare or financial affairs due to incapacity. Because of the significance of the powers that can be granted under the statute, the Act begins by setting out key principles that govern what can be done. In summary these are that the interests of the Adult are fundamental, that there should only be minimum intervention into their affairs and the Adult’s interests should always (where possible) be taken into consideration.
The concept of incapacity has a wide definition because often these issues are far from black and white. An Adult may be capable of doing some things but not others and this should be the focus of where additional assistance or intervention is needed.
A local authority or anyone claiming an interest in the property, financial or personal welfare of an adult, can apply to the court for a Guardianship Order to be granted. Often but not always,it’s a family member who is appointed as a guardian.
The process for obtaining a Guardianship Order varies in terms of cost and time depending on what type of Order is being sought from the court. For example when seeking an Order including welfare powers, a report from a Mental Health Officer at the relevant local authority is required along with two additional medical practitioner reports. These reports are necessary to assess the individual’s incapacity and the suitability of any proposed guardians.
There are also specific requirements if any Financial Guardians are proposed. A report following an interview by a suitably qualified individual (often an independent solicitor) will need to be completed to assess the suitability of the proposed guardian. Furthermore, after being appointed as a Guardian, an individual will need to provide annual returns to the Office of the Public Guardian (OPG) detailing their management of the adult’s finances. This adds to the burden of the role.
As the cost of obtaining and acting as a Guardian comes from the Adult’s funds, there is considerable oversight from the OPG.
The court has discretion to decide whether to appoint a Guardian or not and indeed the length of any Guardianship before it must be reviewed. It is therefore important that the necessary information is included in any reports and the proposed Guardian can address any questions an inquisitive sheriff might have. When coming to a decision, the Sheriff will take many factors into consideration including any existing relationship between the Adult and the proposed Guardian. In more complex financial matters, it may be that a family member is not always the best person to deal with an Adult’s affairs.
In normal times the process generally takes around four to six months but this is likely to be significantly delayed at present due to Covid-19. There are likely to be significant delays when obtaining the required reports which need to be prepared before you can go to court for example.
What alternatives exist to guardianship orders?
One broadly similar court appointed alternative to a Guardianship Orders is an Intervention Order. This can be used where a more focused or specific action is required such as selling the Adult’s house when they go into care. Its use again goes back to the principle of minimum intervention. Obtaining an Intervention Order is however subject to the same costly and time consuming requirements as obtaining a Guardianship Order and is therefore not the ideal scenario when an individual loses capacity.
Could Britney have done something in advance?
In order to avoid the unpleasantness of court intervention, the “Scottish” Britney could have, while she had capacity, signed a Continuing Power of Attorney. This would have allowed her the flexibility to appoint who she wanted to act if needed and given them a broader range of powers. As noted previously a POA is a much simpler, less expensive and less costly option. She could also have had more ability to revoke the powers if and when her health improved without having to resort to the courts.
An Attorney being in place would have meant that a Guardian would not need to be appointed and unless there were very good reasons the courts will not interfere with the Attorney’s position.
That said I doubt getting a Power of Attorney in place was considered a priority for a young pop star! As such a Guardianship or Intervention Order may well have been an inevitability when Britney’s health failed. But this case highlights that anyone regardless of age or current circumstances should consider having a Power of Attorney in place.
Could “I Care a Lot” happen here?
Any discussion about Guardianships could not be done at the moment without mentioning the Netflix / Amazon Prime film “I Care a Lot”. It is wholly rooted in fiction and portrays a con-artist becoming the court appointed guardian for multiple vulnerable elderly people and then plundering their savings. The robustness and independence inherent in the Guardianship process offers much greater protections to Adults in Scotland than seems apparent in the film’s world. While you can never guarantee a “bad” Guardian could not be appointed, the OPG oversight should ensure such a situation would be caught much more quickly and the exploitation is prevented.
But again the film successfully highlights the importance of individuals planning ahead so that those who could end up controlling your affairs are the people you want and not someone like Rosamund Pike’s character.
How can Thorntons help?
Our experienced team of Solicitors are well equipped to guide you through the process of Guardianship Orders or Powers of Attorney, please contact Graeme on 0131 322 6166, email firstname.lastname@example.org or contact any member of the Private Client Team if you would like to discuss this further.
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