When managing someone else’s financial affairs turns “Toxic”

When managing someone else’s financial affairs turns “Toxic”

As the world receives the news today that Britney Spears’ high profile application to remove her father from his role in her conservatorship is denied, we look at what the equivalent of a conservatorship would be in England and how the situation may differ if Britney lived over here and was under the British legal system.

What is a conservatorship?

A conservatorship in the US is granted by a court for individuals who are unable to make their own decisions, like those with a lack of capacity caused by dementia or other mental illnesses. Either an individual or organisation (or both) can be appointed as conservator for someone who is unable to make decisions for themselves. A conservatorship can be split into two parts – dealing with a person’s estate and finances, and dealing with someone’s personal needs and welfare.

What is the UK equivalent to a conservatorship?

In England and Wales, the equivalent of a conservatorship is a deputyship. A deputyship order is made by the Court of Protection to appoint a deputy (or a number of co-deputies) to make decisions for someone who has lost capacity to make decisions regarding their property and affairs or health and welfare.

The Mental Capacity Act (2005) in England and Wales provides that a person is presumed to have mental capacity, unless, following an assessment, it is concluded that they do not. The level of capacity required to do different things also varies. For example, a person may have capacity to choose to get married but not have the necessary level of capacity to handle their property and financial affairs.

As with conservatorships, the appointed deputy or deputies can be individuals, including family members, or professional deputies, including solicitors or court-approved panel deputies. This appears very similar to conservatorships in the US.

Whilst both conservatorships and deputyships are ordered by the court, in England and Wales the court will only make a deputyship order with evidence of a capacity assessment concluding that the person lacks capacity to make those decisions for themselves. Much of the detail in Britney’s recent case remains private (as it should do), however, if the case was to be heard in the Court of Protection here, the court would closely consider whether there have been any changes to Britney’s capacity since the original conservatorship was put in place (back in 2008), particularly where Britney expresses her wishes and argues that she has the required capacity to make those decisions herself.

If the Court of Protection concludes that a person has capacity to make those decisions themselves, there is very little anyone can do to impose decisions on them regarding their health and welfare or property and affairs.

English courts are keen for individuals to retain as much control as possible over their own finances and welfare decisions. Deputyship orders are only put in place for individuals who lack the necessary mental capacity and do not have a valid power of attorney already in place. Deputies are under a duty to consult with the person on decisions wherever possible and always act in their best interests.

If you have any concerns regarding a deputyship order in place that is affecting you or a loved one, or if you are a deputy for someone and a dispute has arisen, please do get in touch with our contentious Court of Protection team at Lime Solicitors for assistance. Call us free on 0808 164 0808 or request a call back, and one of our team will call you.

About the Author

Jemima Barnes

Jemima Barnes

Solicitor - Inheritance Disputes

Jemima is a solicitor in our contentious probate team