The #FreeBritney Movement: When Conservatorships Turn ‘Toxic’

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Transcript

Alyssa Hurst:

You're listening to RadioEd.

Lorne Fultonberg:

A University of Denver podcast.

Nicole Militello:

We're your hosts, Nicole Militello.

Lorne Fultonberg:

Lorne Fultonberg.

Alyssa Hurst:

And I'm Alyssa Hurst. I remember where I was the first time I heard Britney Spears' iconic hit, Baby One More Time. One of the older kids at my daycare had bought Spears' debut album, and was passing around her walkman with its flimsy foam headphones, so everyone could get a taste of Britney. Since then, the world's appetite for Britney Spears has been insatiable, and she's proven to be a fixture, not only in pop music, but also in the headlines. Most recently, it's not her music drawing attention, but a legal battle she's been waging against the conservatorship, that has given her father the power to make key decisions for her, for more than a decade. Spears spoke up last month, alleging that the conservatorship has been a tool of abuse, and pushing for the arrangement to come to an end. That left us wondering, what exactly does a conservatorship typically look like? And in Spears' experience living under one, the norm? Tammy Kuennen, a professor in the Sturm College of Law, who has litigated conservatorships in the past, shares her insights.

Alyssa Hurst:

So, one of the questions I've had, and then I'm sure many other people have, is, what exactly is a conservatorship? What is its intended purpose? And in what situations do we typically see these kind of arrangements?

Tammy Kuennen:

Great. So, a conservatorship is one type of legal intervention, that is used with the goal in mind of trying to protect people. It's typically used when people, because of injury or illness or incapacity, are unable to make decisions for themselves. With conservatorships, it's usually limited to financial sorts of decisions. So that's an interesting point about Britney's case that I'll get back to. But just generally, a court has to actually appoint a conservator. It doesn't just happen because someone signs papers. So, it's only by court order. But I actually want to back up for a second, and say that, most of us, as human beings, can anticipate that there will be a time in our lives when we are incapacitated for some reason. Either we get into an accident or we become ill. Typically, we start thinking about this when we get older. So, you and I today, being of sound mind and body, could execute a power of attorney to give an additional person, in addition to ourselves, some authority to make decisions for us. So, it's a really normal and it's a really healthy and good way to plan for the future.

Tammy Kuennen:

A conservatorship is really different. So first of all, it's not something that you or I can just do. It has to, as I mentioned, be put in place by a court, and it's an intervention that's used when a person has not, when they are of sound mind, put into place a power of attorney. So, it's far more restrictive. It doesn't give the other person, the agent, it doesn't give them merely agency, but it actually takes away the agency of the person who's the subject of the conservatorship. And as I said, typically, they're financial. But I've read enough to know that this conservatorship sounds a lot more like a guardianship, which is a different, even more restrictive, legal intervention, that doesn't limit itself to financial decisions. But really, a guardian can make decisions about any aspect of someone's personal life, whatever the guardian thinks is in the person's best interest. And so, that's really different. And so, there's something very different about Britney's... So you and I will call Britney's conservatorship a conservatorship, because that's legally what it's called in California, but I think it's far more restrictive.

Alyssa Hurst:

Can each conservatorship look different? Can a judge set different parameters for different people under different circumstances?

Tammy Kuennen:

Yes. And we don't know. We don't know with Britney, what the judge has put into place here.

Alyssa Hurst:

Very interesting. And will it be the same judge, typically, that oversees the conservatorship through the life of it?

Tammy Kuennen:

Typically, it is. And I think this judge, I feel like... This is Judge Brenda Penny, in Los Angeles. I think she's been on the case for many years, if not right from the start. I think from the very start, in 2008.

Alyssa Hurst:

So, Britney Spears' conservatorship arrangement went into place after a few really public incidents back in 2008, in 2007. So, on two occasions because of those, she underwent mental health evaluations in a psychiatric hospital. Are these the typical conditions under which a conservatorship might be put into place?

Tammy Kuennen:

I mean, the typical conditions are the mental health evaluations in the psych hospital. Not typical are public incidents for a celebrity. I mean, I think here about a contemporary of Britney's, maybe a little younger, but is Miley Cyrus. She's done really controversial things, and yet with Miley Cyrus, I think that most people think of that as, whether they like what she does or not, or think it's tasteful or not. I think they attribute that to her artistic license. Not so with Britney. There's a different scrutiny of Britney here, it does seem to me. However, having said that, the psych evaluations and also her substance abuse issues are typical reasons. Yes, [inaudible 00:05:26] conservatorship.

Alyssa Hurst:

Okay. So, as you mentioned before, Britney's conservatorship seems a little bit different, and it seems a little bit more restrictive. So, she recently said that, under her conservatorship, she's not allowed to have children or get married. She's been forced to work with a temperature of 104 degrees. So, are these things that are allowed under most conservatorships? And what power does someone in charge of, I guess, a typical conservatorship have over its subject?

Tammy Kuennen:

Yeah. So, that's an important point, because I was going to say, it's for sure not in conservatorships would these things be typical. In a guardianship, more so, it would be more typical. But even under a guardianship, these allegations, if true, are not typically allowed, in any kind of formal way. Anyway, so specifically, if it is true that Britney was forced to work, for example, when she had a temperature of 104 degrees, I mean, that's blatantly counter, to what is in her best interests and her personal care. So, that's not... What I think maybe Judge Penny has done is not been quite so specific in the restrictions that she's placed. So, something like that is certainly not in writing in this conservatorship anywhere, but I think that, generally speaking, conservators and guardians are given very wide latitude and a lot of discretion to act in, what is called, the person's best interest, and it's a legal standard, and it can be very, very subjective.

Tammy Kuennen:

And so I think that, that's where that comes into play. And I'll just... Let me try to give you another example. I was thinking about this. So, I'm not a conservator or a guardian right now, but I am... I do have power of attorney for my grandmother, who's 89. And so, I have the power to make some decisions on her behalf, but really what I'm doing is acting as her agent, and trying to execute documents that she wants me to, like signing her lease for her, things like that. So, I happen to feel very strongly about the issue of autonomy. And I think that I would say that autonomy is one of my most highly cherished values as a person. So, I'm not going to act on my grandma's behalf. I'm not going to do something that she doesn't want to have done, even if I think it's in her best interest.

Tammy Kuennen:

Now, my mother, my grandmother's daughter, my mother, she and I disagree all the time, about what's in my grandmother's best interest. I'm bringing this up because I think it sort of starts to highlight some of the... There's a lot of gray area here, in the sense that, if both my mom and I were appointed as conservators or guardians for my grandma, as a legal matter, we could both be right. Just pointing out, this is a very amorphous legal standard, and there's just a ton of discretion, and I think even reasonable people can disagree about what's in someone's best interest.

Alyssa Hurst:

So, given that, given the amount of leeway there seems to be, in terms of the conditions of a conservatorship, how easy is it for this sort of arrangement to become abusive or to be misused?

Tammy Kuennen:

I think it's pretty easy. I think it's pretty easy. And I don't think we have a very robust system of review in probate courts. I think even the ACLU, on behalf of many, many people under conservatorships, have called for the reform of probate courts.

Alyssa Hurst:

So, this is something that has been an issue before, is something that people have thought about before, and has been a concern?

Tammy Kuennen:

Absolutely. Anyone concerned with civil liberties has thought about this. Anyone concerned with disability rights has thought a lot about this. And I think more progressive minds would argue that this guardianship and conservatorship, these kinds of legal interventions are patronizing and really don't facilitate the most liberty that people could have.

Alyssa Hurst:

So, back to Britney, her father was put in charge of her conservatorship in 2008, and at this time, it was considered temporary. So, what would be the logic of continuously renewing this arrangement?

Tammy Kuennen:

So I think the way to think about that is that... I know that her fans and media, and the freeing Britney sort of movement talk about this continuing temporary conservatorship as if that's really restrictive. But I think actually, the judge had probably, if it's like most states, the judge had discretion to go ahead and put in place a permanent conservatorship. So I actually think the judge has done something good, in the sense that it's temporary. I think the logic behind a temporary is so that the court can monitor and revisit. In California, maybe this judge doesn't typically put in permanent conservatorships for people as young as Britney was when this was put in place. Or maybe, Jamie, the conservator, her father, maybe he didn't have a lot of evidence of very harmful things that were going on against her own best interest. It's a little bit hard to know. The continuous renewal of this gives me pause.

Alyssa Hurst:

So I think something that's really interesting about this conservatorship is that Britney Spears has been very successful over the last decade of her career. She's put out music that has been really popular. She had her really successful run in Las Vegas. So, this seems like kind of counter to what you would think would be the circumstances of a conservatorship. So, you kind of talked about this a little bit, but what processes are typically put in place, or might be put in place to reevaluate a conservatorship and determine whether or not it is still necessary?

Tammy Kuennen:

So as you're, I think, probably gleaning, it's a bit of an uphill battle, and that's part of what's not robust about our system and where I think there really does need to be reformed. So, the person under the conservatorship, who's called a conservatee, can contact the court and ask the court to revisit, to revisit the need for the conservatorship. And generally, that person has to prove that there is no longer a need, and this is why I call it an uphill battle. Suddenly, the person who's the subject of the conservatorship has the burden of proof. And proving a negative is not so easy. Proving that something is not needed is not so easy. And so, I think that's where the real danger lies in conservatorships.

Tammy Kuennen:

So generally, the person is going to have to prove that they're capable. For sure, obviously, they're capable of making their own decisions in their best interest, but they also could try to prove that the conservator, so Jamie Spears here, hasn't exercised reasonable care or diligence. It's not a very high standard for conservators. We have many more, much stronger, higher burdens in the law that could be imposed on conservators that's not very high. Or the other big way to try to end a conservatorship is to say that this conservator has a conflict of interest somehow. And I wouldn't be surprised if that's not something that Britney's attorney, at least in the... Probably as an alternative to, first of all, it's just not necessary anymore, but secondly, it shouldn't be Jamie Spears.

Alyssa Hurst:

Right. Right. And that has certainly been a point of conversation over the last year or so. So, going back a little bit more to what somebody would need to do in order to end a conservatorship against them, what are the avenues there? What does the law look like, in terms of getting that removed?

Tammy Kuennen:

It's hard. So, for someone like Britney, who's got power, who's got so many resources in addition to financial, so for someone like her, it is not hard for her to get an attorney, even though she doesn't have control over her money. Right? So, an attorney is going to take her case, and there's going to be so much publicity involved. There's just no question that, not only is an attorney going to take her case, but probably a good attorney, someone who's experienced in this area of law. At the outset, she is able to get representation and get counsel and be shepherded through the process and have arguments made on her behalf. Most people can't. So, most people, as a general matter, are not... Most of us, generally, are not remotely as well-resourced as Britney in any way.

Tammy Kuennen:

So, she's really extraordinary, outside the bell curve here. But when you add to that, that these are people who are under someone's power, so the power of the conservator or guardian it is hard to imagine. I mean, it just, to me, seems so incredibly difficult that, that person would be able to access the court, because they probably would not be able to hire an attorney, because they wouldn't have any money to get an attorney. And I think attorneys know that these are uphill battles also. So, as a practical matter, I think it's a real access to justice issue.

Alyssa Hurst:

As we've discussed, Britney Spears' conservatorship, her whole situation, has been quite different from other folks, especially in the aspect that it's happening in the public eye. So, what role could the media play, and the fact that this is so public, play in the court's decision regarding whether or not this conservatorship should continue?

Tammy Kuennen:

I am sure that the media and the public opinion are influencing Judge Penny heavily. I do not envy her position right now. And, in some ways, it's great. It's great. In the best of circumstances, it will, if I were the judge, it would make me want to be very careful, meticulous, about following the law and doing a very diligent investigation, making sure to appoint experts who are incredible and experienced to help me. I do also wonder if, and again, this is if I were the judge, I would be very worried that it is possible that Britney is doing so well, that she's turned things around because she's had this structure in her life.

Tammy Kuennen:

I would worry, and I think judges do worry. I think one thing we know judges worry about is bad press. And so, I do wonder a little bit if Judge Penny also is wondering to herself, "What if I remove this conservatorship and Britney spirals?" All fingers will be pointed on her, if that happens. So, I think that the media and public attention has an enormous impact on decision-makers. I don't know how that will actually pan out.

Alyssa Hurst:

So you've kind of alluded to this a few times, but how could a conservator, or does a conservator benefit from keeping a conservatorship in place? Can they be paid for their role as a conservator? And what rights does the person under the conservatorship actually retain? I know that's a lot of questions, so.

Tammy Kuennen:

That's okay. Generally speaking, conservators are paid. They are paid for their service. Colorado will pay a conservator $35,000 a year. So, people are paid. People who are conservators in estates the size of Britney's could be paid more, based on state law and based on the terms of that specific conservatorship. So, there is a financial incentive, certainly. When conservators have control over finances though, there is an obligation for them to at least try to accommodate the conservatee's stated, expressed sorts of wishes, and to do so, unless they feel as though those wishes really are not in the best interest. But again, that standard is just so and so subjective. But I think it's just hard to... I can see why there are a lot of barriers to removing it.

Alyssa Hurst:

So, in this case, Britney Spears' father is the conservator, and that, for the bulk of it, at least, he's been the conservative. There was a brief period where a third party has been in charge. It also sounds like there's been a company involved, helping to make decisions on Britney's behalf. So, I'm curious how common it is for family members to be conservators. Is it common for team to be involved, or a third party to be involved, and how might family dynamics play into this conversation?

Tammy Kuennen:

Yeah. I mean, most typically, it will be a family member who's a conservator. In the ideal situation, it's a person who loves the conservatee. I'm saying that because, in my experience, and I've represented some people trying to dissolve a conservatorship, and I've learned the hard way, and I've only worked on a handful of cases, but in four out of five of those cases, the conservator was doing their best. They had the right intentions. So, I think these things are complicated, and there's a lot of gray area. But it is very common for family members to do it. In a typical case, I don't really hear about teams, necessarily. A team of people would be a little less typical, I think. But I also happen to work with clients. I work with lower-income clients. And so I think there just aren't the resources for teams, but it's also perfectly common for a public or private agency to be appointed.

Tammy Kuennen:

So, that all leads me to think, why would Judge Penny not appoint somebody else, given these allegations? Something else that I've been thinking about, in thinking about her case is, along the vein of "there's more than meets the eye". So Britney's had this conservatorship in place. She's also in a separate court, separate case, lost custody of her children and had pretty restricted, at least for a while, very restrictive parenting time, right? So we see that other, the family law case, the divorce and child custody case, and then we see Judge Penny reviewing this conservatorship multiple times and still keeping it in place.

Tammy Kuennen:

And this all leads me to believe that there are facts that are really influential to this judge, and that there's not nothing here, from a neutral point of view, as someone who thinks Britney is... I think she's a really interesting person, a really strong woman, a really talented person, but not a true diehard fan of hers. I think that there are facts that her fans don't know, that just make it more complicated.

Alyssa Hurst:

So, Britney Spears just gave her first real statement on this conservatorship very recently. So, is there a likely a legal reason she hasn't spoken up about her experiences, given that it sounds like, from her perspective, it's been really difficult?

Tammy Kuennen:

I cannot think of a legal reason. I mean, possibly. So I just mentioned the divorce and child custody decision in a different court. Every once in a while, those kinds of cases have privacy clauses, that I could see that maybe there are some facts in that case that overlap with some of the facts in this case. So that is the only legal reason, some kind of gag order in a different case, possibly. I know Britney's made a lot of allegations. I'm not going to speak to whether those are true or not. But one thing that I found compelling and rings true for me, based on my experience, is that she has been in denial and has been scared. So, in the disability rights movement, one reason that activists are very opposed to things as restrictive as conservatorships is, because it doesn't...

Tammy Kuennen:

When you don't have the power to make your own decisions, then you also don't have the power to learn from your own bad decisions. So, you're not making bad decisions anymore, so you're not facing the consequences. And, failure and making bad decisions is how we all grow. It's how we become braver. It's how we do things differently. I would suspect, rather than a legal reason for her not speaking up, it is exactly what she said, which is just being in denial and being fearful and not having had opportunities to learn, since decision-making has been taken away from her.

Alyssa Hurst:

Yeah. That's a great point, that decision-making and being in control of our own successes and failures is something that is pretty central to being human and to how we learn and grow. Not having access to that, whether it's for good reasons or bad reasons, it just can do something to a person. So, the last question I have for you, I just kind of want to broaden the scope of this a little bit. There are a lot of celebrities who are coming up in this time, and who came up at the same time as Britney, who have been under this intense scrutiny, who had public moments where they're not as clean and glossy as we expect them to be. Are there other circumstances or other people that you might compare Britney's situation to?

Tammy Kuennen:

You know I have been thinking a lot about Amy Winehouse this month. This month will be the 10th anniversary of her death. And I was a huge, I am, a huge Amy Winehouse fan, and she became famous a little later, than Britney did. But Amy Winehouse won her first Grammy in 2008, and that's the same year that this conservatorship was put into place for Britney. So, Amy died of alcohol poisoning. So, she essentially OD'ed on alcohol. And in the years preceding her death, we watched her, almost, march her way to her death. We saw her on stage. We saw her addiction. She drank and used onstage, while she was performing. In her most famous song called Rehab, she talks about... One of the lines from that song alludes to how people are trying to get her to go to rehab.

Tammy Kuennen:

Her friends and her manager had done an intervention and actually got her to go. And she checked out, because her dad didn't think she needed to be there. So, Amy Winehouse, she comes to mind because it's such a sad, it's such a tragic case. And she strikes me as someone who, on the other end of the continuum, had family who knew that she has pretty serious problems and decided not to do anything, decided not to intervene in any way to help her, not even in a conservatorship way, but not even to intervene to get her into treatment. They didn't even support her.

Tammy Kuennen:

Her dad didn't even support her going to treatment. And instead, actually, just pushed her to keep going, keep touring, keep touring. And so, I'm thinking a lot about Amy, because... Again, I'm not a fan of conservatorships. I think they should be the least, they should be a last resort, or guardianships for that matter. But, there are cases where these kinds of legal interventions are necessary. It was definitely foreseeable, and possibly, I don't, we can't, who knows, but it possibly was preventable. And that hers was the kind of case where some kind of intervention would have been helpful, not harmful.

Alyssa Hurst:

Right. It just illustrates how complicated and complex this whole arena of law can be.

Tammy Kuennen:

It's exactly right.

Alyssa Hurst:

To learn more about both Britney Spears' plight and Tammy Kuennen's work, visit du.edu/radioed. Tamara Chapman is our managing editor. James Swearingen arranged our theme. I'm Alyssa Hurst, today's host and executive producer. This is RadioEd.