Planning for Incapacity: Lessons Learned from Britney Spears

My last newsletter detailed the trials and tribulations of Britney Spears who testified in a court hearing a shocking pattern of abuse and exploitation at the hands of her father and others involved with the conservatorship for the past 13 years. Also known as “adult guardianship,” a conservatorship is a legal structure in which the court grantedBritney’s father, Jaime Spears, and other individuals nearly complete control over Britney’s legal, financial, and personal decisions. I also discussed how confidential court records obtained by the New York Times provided support for Britney’s claims and showed that the pop icon had expressed serious opposition to her conservatorship as early as 2014, and tried unsuccessfully on multiple occasions to have her father removed from his position. If you missed that newsletter, you can read it here.

This week let’s dive into how Britney could have been saved through proper estate planning.

What Could Britney Have Done Differently?

Had Britney done some estate planning, she could have chosen the person, or persons, who would be in charge of making decisions on her behalf during any period when her incapacity was at issue. With the right planning, Britney could have even spelled out the specific conditions that must be met for her to be deemed incapacitated in the first place. 

Many People Wait Until it’s too Late  

Many people tell me that they intend to plan for incapacity when they start to lose their way; when incapacity is at their doorstep. What they fail to recognize is that strategy doesn’t work! Your incapacity plan must be created well before you become incapacitated when you can clearly express your wishes and consent to the plan for it to be valid. Even slight levels of mental illness or dementia are problematic and could get the plan thrown out of court. 

Although laws differ by state, in the absence of any estate planning, if you become incapacitated, the court will typically appoint a conservator and/or a guardian to make life care, financial and legal decisions on your behalf. As with Britney, this person could be a family member that you would NEVER want managing your affairs, or it could be a professional guardian who charges exorbitant fees, or one who is difficult, abusive, or is out to exploit you for their own financial gain.

What most people don’t realize is, like most court proceedings, the process of naming a guardian can be quite lengthy, costly, and emotionally draining for your family; even if your family members agree about what’s in your best interest. Matters are much worse if your family members disagree about your care, treatment, or managing your finances, and can lead to ugly court battles between your loved ones. Court battles and conflicts can tear families apart and drain whatever money you have available.

A Comprehensive Incapacity Plan 

Fortunately, such turmoil can be avoided through proper estate planning. Determining which estate planning strategies you should use is something you should ultimately decide after consulting with an experienced lawyer because there are many considerations.

Unfortunately, people think that if they have a will that they have done their estate planning. Au contraire! Your will is completely worthless when it comes to your incapacity. A will only goes into effect upon your death and then it merely governs how your assets should be distributed. Your will has no bearing on what happens to you while you are alive and does nothing to keep your family out of court and out of conflict in the event of your incapacity. When it comes to creating your incapacity plan, your best bet is to put in place an array of different planning tools, rather than a single document. To this end, your plan should include the following: 

Durable financial power of attorney:  to grant individuals you choose to have the immediate authority and make decisions related to the management of your financial, business, and legal affairs. 

Revocable living trust:  to immediately transfer control of your assets held by the trust to a person you choose to be used for your care in the event of your incapacity. The trust can also spell out specific conditions that must be met for you to be deemed incapacitated.

Medical power of attorney: to allow individuals you choose the immediate legal authority to make decisions about your medical treatment in the event you are unable to make decisions for yourself. 

Advanced Health Care Directives (also called a Living Will): provides specific guidance of the medical decisions you want to make during your incapacity, including who should be able to see you and what care you want to have.

Documents Aren’t Enough 

In the end, there’s one thing to remember about all of these documents—they are just documents. Documents are only the starting point. Documents don’t provide your loved ones with a trusted advisor to navigate the legal system on your behalf. If you want to keep your family out of court and out of conflict, your planning documents should be created by a lawyer who knows you, your wishes, and will be there for you throughout the many stages of life—and ultimately be there for your family when you can’t be. 

Finally, it’s vital that you regularly review and update your estate plan to keep pace with changes to your life, family dynamics, the law, and medical protocol. Before Covid, many people had selected as part of their medical directives that they did not want to be placed on a ventilator viewing ventilators as a treatment that would sustain life without regard for the quality of life. During Covid, ventilators were deemed necessary life-giving devices and people’s views shifted and their directives needed to be redone to reflect that shift. A change needs to be made to your power of attorney documents when any of the individuals you’ve named to make decisions becomes unable or unwilling to serve for whatever reason. We can help with that, too.  

Can You Learn from Britney’s Lesson? 

Although Britney’s story is certainly tragic, as Massachusetts’s Congresswoman, Rep. Lori Trahan told Politico, “If this could happen to someone who is as famous as Britney Spears, I mean, think about what’s happening to regular Americans.”

By the same token, Britney’s story could serve as the inspiration for you to make certain that you and your loved ones have the proper estate planning strategies in place to prevent the loss of autonomy, family conflict, and potential for abuse that comes with court-ordered conservatorships and guardianships.  If you have not yet planned for incapacity, schedule a consultation with us right away. We can advise you on the most suitable estate plan to put in place. If you already have done some estate planning—even a plan created by another lawyer, let’s review it so you can be sure it’s been properly set up, maintained, and is up to