Tag Archives: Spears

Next in Britney Spears conservatorship? Possibly no changes, or new conservator(s), or the lessening of restrictions, or termination . . . .

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If you have been following the news and developments in Britney Spears’ conservatorship case, undoubtedly you have come to realize that the Judge in a conservatorship case, and, indeed, in almost all probate court cases, has significant discretionary decision-making authority within the parameters of the law and the facts of the specific case.

Most logically it would be up to Ms. Spears to file a petition or petitions with the Court if she wants to change anything significant relating to her conservatorship. Other interested persons also can have legal standing to file their own petitions in the case; however, most likely it would be more persuasive with the Court for Ms. Spears to be the person who would file a petition to remove a conservator or to appoint a new conservator or co-conservator, or to lessen the conservatorship limitations or restrictions on Ms. Spears, or possibly to terminate the conservatorship.

Assuming that the conservatorship continues, and for as long as it continues, the Judge does have the authority to appoint, remove and replace a conservator. In Ms. Spears’ case conservators have already been appointed and added, and have resigned.

California Probate Code section 2650 (Causes for Removal) states the reasons for which a conservator may be removed. Again, the Judge has significant discretion. Section 2650 primarily is focused on the conservator’s actions and inactions and whether or not those actions and inactions are in breach of his or her fiduciary duties. Section 2650 also lists as one criteria the risk that the conservator’s actions might in the future be in breach of his or her fiduciary duties.

Interestingly, section 2650 does not specifically list difficulty or inability of the conservatee and the conservator to communicate or the conservatee’s wishes; however, in Ms. Spears’ situation I would argue that her wishes should carry significant importance, and that the communications and ability to communicate or the lack thereof between Ms. Spears and her conservator also should be considered. Also note that in some situations pertaining to a conservatorship, or to a power of attorney, or to a trust administration, consent or informed consent when possible also might have some relevance – in other words, communicating with the conservatee, or with the principal, or with the settlor/trustor to inquire about her or his wishes won’t necessarily control the decision-making, but those communications and the ability to communicate or not might have relevance.

A conservatorship is a court (i.e., State or Government) action that limits the conservatee’s rights. Thus, it is recognized the restrictions upon a conservatee that a Court orders should be the least restrictive under the circumstances. Accordingly, a conservatorship also can be modified to lessen the restrictions that have been ordered on the conservatee.

Below I have pasted California Probate Code sections 1861, 1862, and 1863 which pertain to terminating a conservatorship. Section 1861 states who has legal standing to petition for termination of the conservatorship. Section 1862 provides that the petition must be brought by way of a noticed hearing.

Section 1863 provides additional legal and procedural requirements including that the conservatee can request a trial by jury, and that witnesses may appear or be presented both in support of the conservatorship and in opposition to the continuance of the conservatorship.

Section 1863(b) provides as follows: “(b) If the court determines that the conservatorship is no longer required or that grounds for establishment of a conservatorship of the person or estate, or both, no longer exist, the court shall make this finding and shall enter judgment terminating the conservatorship accordingly.” Thus, in support of termination, it can be argued that the conservatorship is no longer required, and also that the grounds for establishment of the conservatorship no longer exist. Those are two entirely different standards. Depending on the facts of the case, it might be easier to argue to the Court that the grounds for the establishment of the conservatorship no longer exist, or, perhaps, that if the conservatorship petition was just now being brought, under the current facts the conservatorship would not be granted. Both arguments should be made if they can be supported by the current facts.

Section 1863(d) also adds: “(d) Termination of conservatorship does not preclude a new proceeding for appointment of a conservator on the same or other grounds.” Thus, termination of the conservatorship does not mean that a new petition for conservatorship cannot or won’t be brought in the future if it it believed that a conservatorship is again warranted.

The following are California Probate Code sections 1861, 1862 and 1863:

California Probate Code, Conservatorship, Chapter 3, Termination

Probate Code Section 1861

(a) A petition for the termination of the conservatorship may be filed by any of the following:

(1) The conservator.

(2) The conservatee.

(3) The spouse, or domestic partner, or any relative or friend of the conservatee or other interested person.

(b) The petition shall state facts showing that the conservatorship is no longer required.

(Amended by Stats. 2001, Ch. 893, Sec. 21. Effective January 1, 2002.)

Probate Code Section 1862

Notice of the hearing on the petition shall be given for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1.

(Enacted by Stats. 1990, Ch. 79.)

Probate Code Section 1863

(a) The court shall hear and determine the matter according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the conservatee. The conservator, the conservatee, or the spouse, or domestic partner, or any relative or friend of the conservatee or other interested person may appear and support or oppose the petition.

(b) If the court determines that the conservatorship is no longer required or that grounds for establishment of a conservatorship of the person or estate, or both, no longer exist, the court shall make this finding and shall enter judgment terminating the conservatorship accordingly.

(c) At the hearing, or thereafter on further notice and hearing, the conservator may be discharged and the bond given by the conservator may be exonerated upon the settlement and approval of the conservator’s final account by the court.

(d) Termination of conservatorship does not preclude a new proceeding for appointment of a conservator on the same or other grounds.

(Amended by Stats. 2001, Ch. 893, Sec. 22. Effective January 1, 2002.)

There are no Westlaw Notes of Decisions for section 1863 – meaning that there appear to be no California cases that discuss section 1863 or how it is or is not to be applied by the Court.

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Best to you. David Tate, Esq. (and inactive CPA)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

Business, D&O, audit committee, governance, compliance, etc. http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business and Commercial, Trust/Probate, Real Property, Governance, Elder Abuse, Workplace, Investigations, Other Areas

Comments about Britney Spears’ conservatorship following the February 11 hearing . . .

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As you might be aware, it is still very difficult for the public to obtain information about the proceedings in the Spears conservatorship. That fact is unusual as the general rule is that court proceedings are supposed to be, and are required to be open to the public, unless there is very good reason for some, or all, of the proceeding to not be open. Court proceedings are open to the public unless the Court makes a ruling otherwise. But, again, the presumption and legal principle that a court proceeding will be open to the public is very strong.

My understanding, based on what I have been able to read, is that following the February 11, hearing, Bessemer Trust and Jamie Spears remain as co-conservators of the estate, apparently with equal shared powers and authority. And that Jodi Montgomery remains as the conservator of the person.

This conservatorship is an ongoing saga. Current primary issues appear to include at least the following:

Will the conservatorship of the estate continue as it is, or be modified, or be terminated?

Will Jamie Spears continue as co-conservator of the estate as it is, or will his powers and authorities be modified, or will his appointment as co-conservator of the estate be terminated?

How will Bessemer Trust and Jamie Spears be able to work together as co-conservators of the estate? Will they be able to work together?

How much weight will the Court give to the requests for changes in the conservatorship that are being made by Britney Spears?

Will any of the issues and orders at the trial Court level be taken up on appeal?

And, perhaps, will the conservatorship of the person continue as it is, or be modified, or be terminated?

The following are a few additional observations:

Generally, conservators are required to communicate with the conservatee and to ask her about her wishes on important matters. However, that doesn’t bind the conservator to the conservatee’s wishes. The Court also should take the conservatee’s wishes into consideration.

Less restrictive options to the conservatorship and to the terms of the conservatorship must be taken into consideration by the Court and the parties. A conservatorship is a restriction on the rights of the conservatee.

On some issues the conservatee is entitled to a jury trial. Otherwise, the Judge has very significant authority to decide issues in a conservatorship, but those decisions must be made based on and in accordance with the applicable laws, the various burdens of poof that might apply, the standards of decision making that might apply (e.g., preponderance of the evidence or some higher standard), and the evidence.

Unless the court orders otherwise, if two co-conservators are ordered, the two co-conservators both must “concur” to exercise a power. Cal. Probate Code §2105. Other than whether either or both of the conservatorships of the estate and of the person will continue, or be modified, or be terminated, I would view the interactions between Bessemer Trust and Jamie Spears as probably being the most difficult and pressing issue. News reports indicate or suggest that there are ongoing disagreements over co-conservator scope of authority and possibly co-conservator decision making and ability to agree. Disagreements of those types could prompt the Court to make changes to its co-conservator order. See, e.g., Cal. Probate Code §§2105.5, and Chapter 9 including §2650, in addition to other Probate Code sections.

Best to you. David Tate, Esq.

Headline says Britney Spears wants conservatorship case to be open to the public: – and related conservatorship legal issues . . . .

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I have provided immediately below a snapshot from a September 3, 2020, Today article headline on Yahoo Entertainment relating to the Britney Spears conservatorship, and a request that the conservatorship case be made open to the public.

Although the length of time that the conservatorship has been in place really has nothing to do with the issues in the case – nevertheless, although the conservatorship has been in place for 12 years, other than news stories, which might or might not be entirely accurate and for the most part do not contain a full discussion or a discussion from the legal perspective, it has been very difficult if not impossible to determine what legal arguments have been made, the actual evidence that has been presented, and the basis for the court’s rulings in the case. Will that be changing in the future . . . well, we don’t know, but it might be.

More and more headlines about the case are now appearing in the news, and they raise interesting legal issues as they pertain to conservatorships and court proceedings in general. Historically there have been few California appellate decisions relating to conservatorship proceedings and conservatee rights, but that has slowing been changing. For example, in more recent California appellate court conservatorship cases it has been held that in a conservatorship there is a right to a jury trial (at least on the issue of whether or not there should be a conservatorship) whereas in probate court cases in general there is no such right, and at least on conservatorship issues that involve fundamental rights the burden of proof that is applied is clear and convincing (which is a heightened standard, that requires stronger evidence before the limitation is justified and can be ordered).

Although different courts have used different wording to describe various burdens of proof, the following descriptions have been used:

  • The preponderance of the evidence burden is essentially more likely than not.
  • The beyond a reasonable doubt burden is designed to exclude as nearly as possible the likelihood of an erroneous judgment and imposes almost the entire risk of error upon the party bearing the burden of proof.
  • The clear and convincing burden is an intermediate standard that increases the burden on the party seeking relief requiring a finding of high probability, based on evidence so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind.

Another requirement in a conservatorship is that the court, and thus also the parties, must consider whether there are workable options that are less restrictive than a conservatorship, or that are less restrictive than a full conservatorship, or that are less restrictive with respect to some of the issues and the prospective conservatee or conservatee’s alleged needs, limitations and deficiencies. Whether or not there is a conservatorship, or whether a conservatorship continues and in what form and under what authorities, rights and restrictions, is not supposed to be based on a medical or other diagnosis – it is based on actual needs, limitations and deficiencies that are established based on the factual evidence pertaining to the prospective conservatee or conservatee’s abilities to act and make decisions on behalf of herself or himself and to protect herself or himself and her or his interests, and the limitations therein that exist.

In that regard, facts and circumstances can change over time; thus, when a conservatorship is granted, that conservatorship also is scheduled for review by the court to determine whether facts and circumstances or the conservatee’s abilities and needs have changed. An interested person who has sufficient standing also can file a petition requesting that some or all of the aspects of the conservatorship be changed, including a request that the conservatorship be terminated, or that other changes be made.   

Regarding whether the case is open to the public, the general and overriding legal principle is that cases are open to the public unless it can be established that a case should not be public based on the particular facts of that case. A conservatorship proceeding is a legal proceeding in which the state (i.e., the government through the court) is being requested to take away or limit some, or sometimes many or most, of the prospective conservatee’s important personal, constitutional, and fundamental legal decision making and other rights and freedoms.

I’m assuming that Britney Spears’ case has not been public because previously she either requested, or she at least agreed or did not oppose, that the case would not be open to the public. That certainly would not be surprising given privacy and public image issues or concerns. Nevertheless, those concerns could exist in every conservatorship case, although not necessarily to the extent that they might exist in a case that involves a very public figure. How much bearing should the extent that a prospective conservatee or an existing conservatee is a public figure have on whether or not the case is open to the public? I haven’t researched for those court decisions, but the issue might already have been briefed in Britney Spears’ case.

As the above headline indicates, if in fact Ms. Spears is now requesting that her case be open to the public, as she in fact might be requesting especially as various other headlines appear to have indicated that she is starting to fight and oppose the conservatorship or at least parts of it, a strong argument can be made that her case should be open to the public.

Some of these similar issues and principles were at play a few years back in one of my cases in which it was difficult to convince a court to seal previously filed pleadings and declarations in a case that involved significant privacy issues (a prior, years ago completed sexual harassment case in which the victim now was requesting that the court seal the records). There are three primary reasons why legal proceedings generally and in principle are open to the public absent strong evidence and legal authority to the contrary, and a court order:

(1) to demonstrate that justice is meted out fairly,

(2) to provide a means by which citizens scrutinize and check the use and possible abuse of judicial power, and

(3) to enhance the truthfinding function of the proceeding.

NBC Subsidiary (KNBC-TV), Inc. v. Superior Court of Los Angeles County (1999) 20 Cal. 4th 1178, 1219.

Thus, if Ms. Spears is in fact requesting that her conservatorship case now be open to the public, there is a strong legal principle that supports her request. Of course, that doesn’t mean that such a request will be granted, but that is what makes the law and court proceedings what they are.

More to follow on this interesting case.

Below you will also find two short videos, one discussing resolution and settlement of conservatorship disputes and cases, and the other providing a summary overview of my mediator qualifications and experience. Best to you, Dave Tate.

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes & Mediator: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

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