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Britney Spears Conservatorship Teaches Importance of Safeguarding Your Autonomy and Assets

The case of singer and performer Britney Spears has thrust the issue of conservatorships into the spotlight, revealing the complexities and potential pitfalls of these legal tools meant to protect individuals. As an elder law firm, our goal is to work with both the family and aging, disabled, or special needs loved ones to set up frameworks for decision-making that respect the individuals’ rights and apply the appropriate safeguards based on the individual’s capacity. Outlined in Kiplinger’s recent article, Lessons Learned From Britney Spears’ Financial Conservatorship, are key lessons from Spears’ experience with an involuntary conservatorship that can inform how we approach and manage such legal arrangements. This article examines how conservatorships can be problematic and details proactive steps you can take to protect yourself from the same issues that Spears experienced.

Conservatorships can Limit or Eliminate Personal Autonomy

The Britney Spears conservatorship painfully highlighted how such arrangements sometimes deprive individuals of autonomy. Despite intentions to protect, conservatorships can create a rigid and protective environment, often overzealously limiting personal freedom. As observed by New York attorney Jill H. Teitel, courts may remain inflexible to the unique capabilities of wards, ironically eroding personal independence.

To avoid such pitfalls, it’s critical to:

  • Ensure that estate planning documents explicitly define the conditions under which you want your affairs managed.
  • Use tools, such as a Power of Attorney, to choose trusted individuals known as agents to handle your affairs, ensuring that they respect and promote your autonomy.

Taking these steps helps maintain personal dignity and control, even when you might need assistance.

Conservatorships can Become a Vehicle for Financial Abuse or Exploitation

The Spears case underscored the potential for abuse in financial conservatorships. With significant control over an individual’s assets, conservators might exploit their position for personal gain. This risk of financial abuse highlights the necessity of having a clear and comprehensive care plan set up in advance with a team of trustworthy professionals.

Here are strategies to protect yourself from financial abuse:

  • Specify who can manage your affairs and under what conditions.
  • Define permissible conservator fees to prevent financial exploitation.
  • Review your estate plans with your attorney regularly to adapt to changes in your life or the legal landscape.

By working with an elder law attorney to create boundaries for how your financial affairs should be managed in the event of your incapacity, you establish safeguards that preserve your interests and prevent misuse of your assets.

Conservators Often Lack Accountability and Oversight

Lack of oversight is a critical flaw in many conservatorship arrangements. The Spears narrative highlighted the need for robust oversight mechanisms to ensure transparency and accountability within conservatorships. The conservatee’s welfare and financial security could be compromised without adequate checks.

To create boundaries for a conservator or agent’s accountability and oversight:

  • Ensure that your estate planning includes provisions for regular reviews and audits of your conservatorship.
  • Set up mechanisms allowing grievances to be addressed promptly and fairly.

Incorporating these elements into your comprehensive estate planning ensures that if you need assistance managing your finances, your rights are safeguarded and your estate is handled in accordance with your wishes.

Key Takeaways

  • Autonomy: Plan carefully to maintain as much personal independence as possible.
  • Protection: Establish clear, enforceable guidelines to safeguard against abuse.
  • Oversight: Demand transparency and regular oversight to ensure that your interests are always prioritized.

In conclusion, while conservatorships serve an essential purpose in protecting individuals who cannot manage their affairs, the lessons from the Britney Spears experience teach us the importance of approaching these legal tools with caution, thorough planning, and an emphasis on preserving personal rights. Remember that good planning not only protects your assets but also your fundamental freedoms. Contact our elder law firm today to ensure that your estate plan establishes clear guidance for managing your financial affairs when you cannot.

Reference: Kiplinger (March 27, 2024) “Lessons Learned From Britney Spears’ Financial Conservatorship”

Navigating Life’s Uncertainties: The Importance of Conservatorships, Inspired by Brian Wilson’s Story

In the journey of life, certain events remind us of the importance of planning for the future, especially when it comes to protecting our loved ones and ourselves. The recent news about Brian Wilson, the co-founder of the Beach Boys, is one such event that brings to light the critical role of conservatorships in estate planning.

Understanding Conservatorships

A conservatorship is a legal process where a court appoints an individual or organization to manage the affairs of someone who can no longer do so themselves due to physical or mental limitations. This situation with Brian Wilson, who has been diagnosed with a “major neurocognitive disorder,” likely dementia, exemplifies why having a plan in place is so crucial.

The Story of Brian Wilson

Brian Wilson’s legacy as a musical genius is undeniable. Yet, his personal life now faces significant challenges due to his health condition. After the passing of his wife, Melinda, who was his primary caretaker, Wilson’s family filed for conservatorship to ensure his needs could be adequately met. This step was necessary to safeguard his well-being and manage his affairs, highlighting the unforeseen challenges that can arise as we age.

Key Takeaways

  • Plan Ahead: Brian Wilson’s situation underscores the importance of early planning. Don’t wait for a crisis to think about legal protections like conservatorships.
  • Protect Your Loved Ones: Conservatorships are a vital tool for ensuring the safety and financial security of those who can’t care for themselves. It’s about protection, not control.
  • Expect the Unexpected: Life can be unpredictable. The loss of a caretaker or a sudden health diagnosis can change everything. Having a plan in place provides security in uncertain times.

Conclusion

Life’s unpredictability calls for preparedness and the story of Brian Wilson serves as a powerful reminder of this truth. As we reflect on his contributions to music and culture, let’s also consider the importance of planning for our own future and that of our loved ones. Estate planning, including considerations for conservatorships, is not just about managing assets—it’s about caring for people and ensuring their well-being in every circumstance.

Reference: MarketWatch “Beach Boys’ Brian Wilson’s conservatorship case highlights an important — and sometimes necessary — estate-planning tip.”

What Is Probate Court?

Probate court is a part of the court system that oversees the execution of wills, as well as the handling of estates, conservatorships and guardianships. This court also is responsible for the commitment of a person with psychiatric disabilities to institutions designed to help them.

Investopedia’s recent article entitled “What Is Probate Court?” also explains that the probate court makes sure all debts owed are paid and that assets are distributed properly. The court oversees and usually must approve the actions of the executor appointed to handle these matters. If a will is contested, the probate court is responsible for ruling on the authenticity of the document and the cognitive stability of the person who signed it. If no will exists, the court also decides who receives the decedent’s assets, based on the laws of the state.

Each state has rules for probate and probate courts. Some states use the term “surrogate’s court”, “orphan’s court”, or “chancery court.”

Probate is usually required for property titled only in the name of the person who passes away. For example, this might include a family home that was owned jointly by a married couple after the surviving spouse dies. However, there are assets that don’t require probate.

Here are some of the assets that don’t need to be probated:

  • IRA or 401(k) retirement accounts with designated beneficiaries
  • Life insurance policies with designated beneficiaries
  • Pension plan distributions
  • Living trust assets
  • Payable-on-death (POD) bank account funds
  • Transfer-on-death (TOD) assets
  • Wages, salary, or commissions owed to the deceased (up to allowable limit)
  • Vehicles intended for immediate family (under state law); and
  • Household goods and other items intended for immediate family (under state law).

Investopedia (Sep. 21, 2022) “What Is Probate Court?”

How Does Estate Planning Work for Caregiving Children?

This situation requires considered estate planning to protect the arrangement, both for the parent and child, in the event of the parent’s incapacity and what may happen, if and when the parent needs to move to a care facility and/or passes away.

If the child is caring for the parent at the parent’s home, the parent’s estate planning often gives the child the ability to remain at the parent’s residence. It may also allow the child to access the parent’s bank accounts, if the parent becomes mentally incapacitated. A recent article from Lake County Record-Bee, “Estate planning for parents with caregiver children,” says if the planning is not done correctly, a series of unintended problems may arise, including disagreements with other family members and allegations of elder abuse, especially financial abuse.

Agreed-upon terms of any living arrangement should be included in the parent’s estate planning documents. If the parent has a living trust, the trust may allow the child to remain in the family home, so the document must clearly state the terms of the living arrangement. If the parents live in a rental property, the POA may be used to authorize the child’s continued occupancy and use of the parent’s money to pay household expenses. The rental agreement would need to include the child as a tenant.

What if the parent lives in the child’s home? The child’s estate plan would need to reflect on what terms the parent may remain in the child’s house, if the child were to become incapacitated or die unexpectedly. Consideration would also need to be given to how the parents receive care.

If the parent dies or moves into a nursing home or when the child moves out, the arrangement ends. What happens next? It depends on the situation. The parent may leave the residence to the adult care giver child. The following also to be addressed: how are expenses, including the mortgage, to be paid and is there an expressed transition period before the child moves out?

If the parent intends to leave the family home to the adult care giver, the estate planning documents need to gift the residence to the adult caregiver. This may include lifetime gifting, or it may entail renting the residence to provide income for the parent’s needs.

If there are siblings, or a spouse from a second marriage, the estate planning documents need to say whether and how other family members participate in the residence. The parents may want to gift the residence to all children, subject to an exclusive life estate for the care giver to live in the family home. When the care giver child becomes incapacitated or dies, the family home is usually sold, and the sale proceeds divided between the parent’s living descendants.

Something to be careful about: if the caregiver child is treated more favorably than siblings. While the parents are entitled to make their own decisions about how to distribute assets, a disgruntled sibling may object to how assets are distributed. An estate planning attorney will be able to formally document the parent’s wishes, and prepare the estate for any challenges.

Finally, if no advance planning is done, it is possible the parent may end up needing a guardian and conservator to care for their finances and their well-being, respectively, if they become incapacitated. This becomes an expensive situation, and the result of court-supervised administrators may not agree with how the parent wished their affairs to be handled.

Reference: Lake County Record-Bee (Feb. 4, 2023) “Estate planning for parents with caregiver children”

Can I Avoid Financial Exploitation?

AARP’s recent article entitled “The Legal Consequences of Elder Fraud Can Be Steep” reports that romance scams are on the rise. Older, lonely, or heartbroken adults are common targets. In Florida in 2020, $40.1 million was stolen from victims who were victims of a crime ring or bad actor posing as a potential suitor.

Some people lose their whole life savings in a matter of months.

Many other financial crimes are carried out by fraudsters, such as phony investment scams, phone and gift card scams, lottery scams, Medicare and Social Security scams and more.

There is no limit on how creative these criminals can be. Family, friends, and caregivers are also not immune from skimming funds for their own use.

The average amount lost per victim is $34,000. When a person is acting as a fiduciary, the number soars to $83,000. The older the victim, the greater the average amount of stolen assets.

As soon as exploitation is suspected or confirmed, action should be taken. When exploitation is suspected, take these steps to help law enforcement investigate and prosecute the criminals:

  1. Talk to the victim, who may not be aware of the exploitation
  2. Contact the authorities and follow their instructions
  3. Notify financial advisers who may be able to put a freeze on accounts
  4. Document the victim’s interactions with the suspect
  5. Talk to all witnesses to interactions between the suspect and victim; and
  6. Talk to an elder law attorney who can discuss your legal options regarding guardianship or conservatorship if the victim lacks capacity to handle their own affairs.

Reference: AARP (Feb. 22, 2022) “The Legal Consequences of Elder Fraud Can Be Steep”

How Is Florida Creating a Guardianship Database?

The Florida House voted 117-0 to grant final legislative approval to HB 1349 by Rep. Linda Chaney, R-St. Petersburg. Sen. Jennifer Bradley, R-Orange Park, sponsored the companion, SB 1710.

The Florida Bar’s recent article entitled “Bill Creates a Statewide Guardianship Database” reports that the measure will create a statewide database that will help with future reforms.

“This amendment establishes a guardianship database that we first heard last week,” Chaney said. “So thank you for recognizing this as a first step, and for supporting it, and I hope that you can help me take it to the next step.”

The bill would require the Florida Clerks of Court Operations Corporation and the clerks of court to create a statewide database of guardian and guardianship case information by July 2023. The database would be accessible only by judges, magistrates, court clerks and certain court personnel. It would include the registration status and “substantiated” disciplinary history of professional guardians. In addition, the bill would require the Office of Public and Professional Guardians to post searchable profiles of registered professional guardians on a website by July 2023.

Profiles would provide whether the professional guardian meets educational and bonding requirements, the number and type of substantiated complaints filed against the guardian and any disciplinary actions imposed by the Department of Elder Affairs. Data related to individual wards would be “deidentified” to protect their privacy. The restriction is needed to protect wards.

“The reason for that is there are times when family members have good intentions, and family members have bad intentions,” Chaney said. “So, we didn’t want them to have full access to the ward’s information, and maybe be part of a problem.”

The Florida Court Clerks and Comptrollers organized the taskforce in the summer of 2021 to start addressing the issue. The group included legislators, court clerks, court system employees who work with guardianships, lawyers from the Elder Law and Real Property, Probate and Trust Law sections, consumer advocates, a former ward and others. The task force was given an open-ended mission to make recommendations for improving the system.

In addition to the database, the taskforce suggested creating a permanent legislative or state body to suggest regular updates to the law.

The task force also proposed barring hospitals and nursing homes from recommending a specific guardian when they file for a guardianship, including consideration of powers of attorney and advanced directives previously signed by a ward when a guardianship is set up, and upgrading training and education for everyone who is involved in the guardianship process.

Reference: Florida Bar (March 14, 2022) “Bill Creates a Statewide Guardianship Database”

Does Marriage have an Impact on a Will?

It is very difficult to challenge a marriage once it has occurred, since the capacity needed to marry is relatively low. Even a person who is under conservatorship because they are severely incapacitated may marry, unless there is a court order stating otherwise, says the article “Estate Planning: On Being Married, estate planning and administration” from Lake Country News. This unfortunate fact allows scammers to woo and wed their victims.

What about individuals who think they are married when they are not? A “putative” spouse is someone who genuinely believed they were married, although the marriage is invalid, void, or voidable because of a legal defect. An example of a legal defect is bigamy, if the person is already married when they marry another person.

Once a couple is married, they owe each other a duty to treat each other fairly. In certain states, they are prohibited from taking unfair advantage of each other. Depending on the state of residence, property is also owned in different ways. In a community property state, such as California, marital earnings and anything acquired while married is presumed to be community property.

In a community property state, debts incurred before or during the marriage are also shared. In a number of states, marriage is sufficient reason for a creditor to come after the assets of a spouse, if they married someone with pre-marital debts.

There are exceptions. If a married person puts their earnings during marriage into a separate bank account their spouse is not able to access, then those deposited earnings are not available for debtor spouse’s debts incurred before the marriage took place.

If a married person dies without a will, also known as “intestate,” the surviving spouse is the next of kin.  In most cases, they will inherit the assets of the decedent. If the decedent had children from a prior marriage, they may end up with nothing.

These are all reasons why couples should have frank discussions about finances, including assets and debts, before marrying. Coming into the marriage with debt may not be a problem for some people, but they should be advised beforehand.

A pre-nuptial agreement can state the terms of the couple’s financial health as individuals and declare their intentions. An experienced estate planning attorney can create a pre-nuptial to align with the couple’s estate plan, so the estate plan and the pre-nuptial work together.

Marriage brings rights and responsibilities which impact life and death for a couple. Starting a marriage based on full disclosure and proper planning clears the way for a focus on togetherness, and not solely the business side of marriage.

Reference: Lake Country News (Feb. 12, 2022) “Estate Planning: On Being Married, estate planning and administration”

What’s Elder Law and Do I Need It?

Yahoo News  says in its recent article entitled “What Is Elder Law?” that the growing number of elderly in the U.S. has created a need for lawyers trained to serve clients with the distinct needs of seniors.

The National Elder Law Foundation defines elder law as “the legal practice of counseling and representing older persons and persons with special needs, their representatives about the legal aspects of health and long-term care planning, public benefits, surrogate decision-making, legal capacity, the conservation, disposition and administration of estates and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.”

The goal of elder law is to ensure that the elderly client’s wishes are honored. It also seeks to protect an elderly client from abuse, neglect and any illegal or unethical violation of their plans and preferences.

Baby boomers, the largest generation in history, have entered retirement age in recent years.  Roughly 17% of the country is now over the age of 65. The Census estimates that about one out of every five Americans will be elderly by 2040.

Today’s asset management concerns are much sophisticated and consequential than those of the past. Medical care has not only managed to extend life and physical ability but has itself also grown more sophisticated. Let’s look at some of the most common elder law topics:

Estate Planning. This is an area of law that governs how to manage your assets after death. The term “estate” refers to all of your assets and debts, once you have passed. When a person dies, their estate is everything they own and owe. The estate’s debts are then paid from its assets and anything remaining is distributed among your heirs.

Another part of estate planning in elder law concerns powers of attorney. This may arise as a voluntary form of conservatorship. This power can be limited, such as assigning your accountant the authority to file your taxes on your behalf. It can also be very broad, such as assigning a family member the authority to make medical decisions on your behalf while you are unconscious. A power of attorney can also allow a trusted agent to purchase and sell property, sign contracts and other tasks on your behalf.

Disability and Conservatorship. As you grow older, your body or mind may fail. It is a condition known as incapacitation and legally defined as when an individual is either physically unable to express their wishes (such as being unconscious) or mentally unable to understand the nature and quality of their actions. If this happens, you need someone to help you with activities of daily living. Declaring someone mentally unfit, or mentally incapacitated, is a complicated legal and medical issue. If a physician and the court agree that a person cannot take care of themselves, a third party is placed in charge of their affairs. This is known as a conservatorship or guardianship. In most cases, the conservator will have broad authority over the adult’s financial, medical and personal life.

Government programs. Everyone over 65 will, most likely, interact with Medicare. This program provides no- or low-cost healthcare. Social Security is the retirement benefits program. For seniors, understanding how these programs work is critical.

Healthcare. As we get older, health care is an increasingly important part of our financial and personal life. Elder law can entail helping a senior understand their rights and responsibilities when it comes to healthcare, such as long-term care planning and transitioning to a long-term care facility.

Reference: Yahoo News (Jan. 26, 2020) “What Is Elder Law?”

How Does a Conservatorship Work?

Kiplinger’s recent article titled “Britney Spears’ Sad Song … Warning: This Could Happen to You” says that conservatorship is a topic that’s been in the news lately with Britney’s recent court battle.

In Britney’s case, while there has not been any evidence alleged of actual fraud or financial abuse in her conservatorship, she lost nearly all control over her finances, her business affairs and the most personal aspects of her life.

She also doesn’t want her father to be the person to hold that much power or control over her life.

A judge can take charge of an individual’s personal and financial decisions and appoint a third party to make decisions almost on an unlimited basis. These proceedings can exact a significant emotional toll and be tremendously expensive and time-consuming.

Conservatorship can happen to anyone, if and when you’re too disabled (due to an accident or illness) or too incompetent (due to infirmity of mind, old age or dementia, or a similar condition) to handle your own affairs.

If your estate plan addresses this with a chain of command to act on your behalf, no formal court proceedings would be required. Your wishes can be honored, and all the drama like that which Britney Spears has endured can be avoided.

If you are under age 60, there is a four to five times greater likelihood that you’ll become disabled, due to an accident or illness, for a period of more than one year, than your chances of dying. This is because modern medicine can often prevent death but not cure the illness or condition causing the disability. If you’re over age 60, there’s a 70% chance that, during your remaining lifetime, you’ll be too disabled or incompetent to act for yourself, for a period of at least two to 2½ years.

However, Britney Spears’ battle to end her court-ordered conservatorship took an unexpected turn recently, when her father and the conservator of her estate, Jamie Spears, filed a petition to end the arrangement. Mr. Spears cited his daughter’s pleas at two separate court hearings over the summer in his request to terminate the 13-year conservatorship.

“Recent events related to this conservatorship have called into question whether circumstances have changed to such an extent that grounds for establishment of a conservatorship may no longer exist,” the filing states.

Reference: Kiplinger (July 14, 2021) “Britney Spears’ Sad Song … Warning: This Could Happen to You”

What Is Elder Law?

With medical advancements, the average age of both males and females has increased incredibly.  The issue of a growing age population is also deemed to be an issue legally. That is why there are elder law attorneys.

Recently Heard’s recent article entitled “What Are the Major Categories That Make Up Elder Law?” explains that the practice of elder law has three major categories:

  • Estate planning and administration, including tax issues
  • Medicaid, disability, and long-term care issues; and
  • Guardianship, conservatorship, and commitment issues.

Estate Planning and Administration. Estate planning is the process of knowing who gets what. With a will in place, you can make certain that the process is completed smoothly. You can be relieved to know that your estate will be distributed as you intended. Work with an experienced estate planning attorney to help with all the legalities, including taxes.

Medicaid, Disability, and Long-Term Care Issues. Elder law evolved as a special area of practice because of the aging population. As people grow older, they have more medically-related issues. Medicaid is a state-funded program that supports those with little or no income. The disability and long-term care issues are plans for those who need around-the-clock care. Elder law attorneys help coordinate all aspects of elder care, such as Medicare eligibility, special trust creation and choosing long-term care options.

Guardianship, Conservatorship, and Commitment Matters. This category is fairly straightforward. When a person ages, a disability or mental impairment may mean that he or she cannot act rationally or make decisions on his or her own. A court may appoint an individual to serve as the guardian over the person or as the conservator the estate, when it determines that it is required. The most common form of disability requiring conservatorship is Alzheimer’s, and a court may appoint an attorney to be the conservator, if there is no appropriate relative available.

Reference: Recently Heard (May 26, 2021) “What Are the Major Categories That Make Up Elder Law?”

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