July 2021
Lawyers say Court of Protection is a ‘safety net’ for vulnerable people
A leading Court of Protection lawyer has said the outcome for Britney Spears may have been very different had she fought for her independence here in England.
According to news reports, the pop star had instructed her lawyer to ask the courts to overturn a decision made in 2008 which allowed her father and other caregivers to manage her financial and physical health and wellbeing.
However, in November last year, the 39 year old began legal action to have the conservatorship removed in a bid to regain full control of her life.
In the months that followed, the case dominated the headlines, as the once crowned ‘Princess of Pop’ claimed she was being forced to work against her will and that she was being prevented from trying for another baby.
While conservatorships are not uncommon in America, they are usually granted by the courts in circumstances where the individual has a mental illness or a condition such as dementia.
In Britney’s case, it is split into two parts to include reference to her as a person, as well as her financial affairs and estate.
Here, leading Court of Protection law expert Kayleigh Smith of Simpson Millar explains how the law relating to such matters differs here in UK, and the role that the Court in England and Wales plays in protecting vulnerable people.
She says: “Britney’s case has been very sad to watch over recent months. While we do not have the full facts to hand, it is clear that she is distressed and feels that her voice is not being heard.
“In England and Wales, we also have a system in place that is intended to protect vulnerable people that are unable to make decisions for themselves. However, there are a number of differences – the main being the Court of Protection which I would say provides more of a safety net.
“For starters, it’s worth pointing out that our system separates out health and welfare, and finances.
“Health issues like contraception, who Britney can spend time with and whether she should receive medical treatment are decided by the Court of Protection on an issue-by-issue basis.
“It is really unusual to have one person appointed to make these decisions for someone else, and a judge will want to consider the facts each time a decision needs to be made.
We're rated‘Excellent’Kayleigh explains that if Britney was based in England or Wales, she would be appointed an independent solicitor known as an ‘Official Solicitor’ to represent and advocate for her wishes, feelings and best interests relating to each decision and that she would be able to put her own views to the Court, or even to the judge in person.
For financial affairs, Kayleigh says the Court would appoint someone known as a ‘Deputy to make decisions for Britney that she cannot make for herself.
“Like a conservatorship, a Deputy is usually a family member or a solicitor. However, the law is very clear that decisions must be made exclusively in the best interests of the person – and that’s where the law really does help to provide clear boundaries.
“For example, if an individual has capacity to make a decision, even if their Deputy thinks it is unwise , they should still be allowed to make it. The factors that must be taken into consideration include allowing the person to participate in the decision as far as he or she can, to take into consideration their wishes and feelings, as well as their beliefs and values.
“Furthermore, the views and opinions of anyone that plays an important role in that person’s life – as a caregiver or companion - must also be included. For example, a partner, spouse, parent or child.
“It’s also important to stress that on this side of the Atlantic, family members who take on the role of what is called a ‘deputy’ are not allowed to charge for their time in making decisions.
“In relation to Britney Spears’ case, some of the concerns are about what the lawyers are being paid. In the US, her conservatorship is seen to be quite lucrative for Britney’s family and her lawyer.
“While Solicitors in England and Wales are able to charge for their time, the Court has to approve all of the bill, and can stipulate what the costs must be.”
There are also other ways in which the Court of Protection serves to protect the best interests of vulnerable people in England and Wales, including placing limitations on what a deputy can do – for example, the deputy might not be able to buy or sell the home of someone in the care of the Court of Protection, and It may also put a spending cap or time limit on the appointment.
Kayleigh adds: “After a deputy is appointed, they are supervised by the Office of the Public Guardian (OPG). The OPG expects a deputy to report to them every year and justify every decision made on behalf of the person they are acting for, and account for every penny that has been spent.
“The OPG will also visit the deputy and the person they are caring for to hear their views, and they have the power to return the deputy to the Court of Protection and to ask the Court to remove a deputy that may not have been acting in someone’s best interests. This a proactive power that is often used.”
Finally, Kayleigh says that the process to remove a deputy here in England or Wales, is much the same as appointing one.
She says: “If Britney was under the care of the Court of Protection, she would need to have a medical assessment to show that she has capacity to manage her affairs.
“The assessment might show that she has capacity to do some things and not others, so the role of the deputy would be limited to the things she couldn’t do. If Britney has capacity, she, or the deputy would make an application to the Court.
“If the OPG thought that she had capacity, they would ensure that the deputy made this application.
“While of course we don’t know all of the facts in the case and we can’t comment on whether Britney would need a deputy or not, at the very least, if she was in England and Wales, the issue would have been dealt with very differently.
“Deputies play an important role in helping to manage the affairs of people who cannot do so for themselves and protecting them in those rare circumstances where well-meaning but misguided families make difficult decisions and unscrupulous fraudsters, exploiting vulnerable people for their own gain.
“The Court of Protection, the Office of the Public Guardian and all of the professionals who operate under the remit of the Mental Capacity act are held to the highest standard of scrutiny and integrity to protect vulnerable people in our society.”
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