Considering the recent trending #FreeBritney movement that caused global debate around individual rights and legal responsibility, this article discusses conservatorships in Scotland, known as guardianships, and the legalities you can put in place to pre-empt unforeseen circumstances.

In case you are unfamiliar with the controversy that has taken social media by storm: pop singer Britney Spears has been under a conservatorship helmed by her father, Jamie Spears, since 2008. This legal binding was implemented by the Court who deemed Spears unfit to care for herself nor manage her own finances, which consequently saw all control handed to Britney’s father, who has been responsible for dictating pivotal aspects of the singer’s life ever since.

Now, 12 years later, fans are advocating for Britney’s freedom with the #FreeBritney movement in hopes that it will end the pop star’s conservatorship.

What is a Conservatorship?

A conservatorship, as it is called in the United States, is a legally binding mechanism by which the Court appoints a chosen individual to take legal responsibility of an adult who is incapable of managing their own affairs. What this really means, is that the ‘Conservator’ has authorised power over the ‘Conservatee’ regarding financial and medical decisions. It is therefore imperative that the elected individual is a trustworthy aid to the vulnerable adult, and acts in the best interest on their behalf.

Unlike the case of Britney Spears, conservatorships were introduced and designed to benefit the conservatee. Conservatorships (and guardianships) are usually implemented and used for people who have suffered severe cognitive impairment or for people who are older and develop severe dementia. Leslie Salzman, Clinical Professor of Law in New York, states:

“They’re (Vulnerable Adults) suffering harm as a result of their inability, and they’re unable to understand and appreciate the nature and consequences of their inability to manage their affairs”.

What is a Guardianship?

In Scotland, anyone with interest can apply for a guardianship order, the equivalent of a conservatorship. Similarly, a guardianship allows someone to make ongoing decisions on behalf of a vulnerable adult.

In order to obtain a guardianship, you must make an application to the Sheriff Court, which is usually done by your solicitor. The application must also be supported by two medical reports from registered practitioners who can confirm that the adult in question cannot manage their own affairs. After this a further report is required and the guardian/conservator must obtain a ‘Bond of Caution’ – an insurance policy that ensures the vulnerable person is protected financially should the guardian act dishonestly and take advantage of their access to someone else’s finances.

Once the guardianship order is granted, the court will impose very strict timescales and most arrangements are reviewed every 2-5 years.

Is there any legislation to prevent a case like Britney Spears’?

 To avoid a situation in which you have no influence on the Court appointing someone else to manage your affairs, you can arrange for a Power of Attorney to be put in place.

What is a Power of Attorney?

 Power of Attorney is a legal document which gives other people, identified by you, the authority to make decisions on your behalf if you are incapable, ensuring that all decisions made are by someone you trust and who has intent to act in your best interest.

If you are aged 16 or over and have the mental ability to make financial, business, and medical decisions for yourself, you can arrange for someone else to make these decisions for you in the future.

 What do I need to put a Power of Attorney in place?

 At Frazer Coogans, our experienced team make the process straightforward and easy. From you, we will need you to:

  • Select the chosen individual(s) you want to act on your behalf
  • Establish what PoA it is that you need. Find out the different types of PoA here.
  • Agree definitions and powers
  • Define a start date for PoA
  • Attend a quick and simple interview with one of our solicitors

Generally, most people do not consider a Power of Attorney arrangement until they are middle-aged or retired and although the pop singer’s case is an unlikely circumstance in Scotland, it serves as a reminder to anyone that making such arrangements, like POA, whenever you find the time, will protect you in the future.

To find out more information about this service or to get started, contact us on 01292 280499.