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The Case for Conservators and Guardians

Updated: Sep 16, 2019

She’s a multi-millionaire, has a contract with a leading cola company and a series of fragrances released by Elizabeth Arden and yet, every cent of her wealth in under the control of a conservator. We are talking about rock star Britney Spears who has had her struggles with mental health, addiction and her family for decades. Her name arises again as her case review is set to appear in court in a few days and the circus that surrounds her becomes a show for public consumption.


Now 37 years old, Spears still needs help managing her finances and life.

As this matter heads before a judge, a fan blog headed up by a writer named Anthony Elia continues to engage in a "Free Britney" movement alleging, among other things, that she is being held against her will. This has become a favorite tactic of those who advocate against conservators and guardians across the country.


This time around, though, Elia went one step too far by alleging on Instagram that Spear's conservator was controlling her social media account to make her "appear more troubled and in need of help than she actually is." The result -- he is being sued for defamation. Reading what Elia wrote flies into the face of reality when the history of Spear's own behaviors through the years indicate that she was and is in need of supervision.


But just what is a conservatorship and guardianship and is there a difference between them? Quite simply, it depends.


In many states, guardianships and conservatorships are all wrapped together under one responsibility. In other states, these two responsibilities are clearly delineated with nuances that depend on the situation present. Where there is a difference, we will briefly try to explain them.


Generally, a conservator is an individual or corporation appointed by a court to manage the estate, property, and/or other business affairs of an individual whom the court has determined is unable to do so for himself or herself. The individual who is being protected is called the "protected person."


A guardianship provides for the care of someone who is not able to care for himself or herself. The court may appoint a guardian if there is clear and convincing evidence that the person is incapacitated and that he or she requires continuing care or supervision. The individual who is being watched over on behalf of the court through the guardian is called the "ward."


In a nutshell, a conservatorship has to do with the management of things that the ward or protected person owns or has had control over while a guardianship has to do with the management of the life actions and needs of the ward or protected person.


When it comes to the field of elder law, many are used to seeing guardians put into place to allow adults, attorneys or other caregivers to provide care and supervision for elderly individuals who may be suffering from various forms of dementia. However, it is becoming more and more common to see such an action taken when children or disabled adults, typically with mental health or addiction issues, are unable to make responsible decisions and need supervision to continue to live independently.


Every state has specific requirements and provisions when such a case is brought before the bench to avoid the possibilities of abuse. The court usually requires an in depth medical or psychiatric report as well as an assessment as to the life skills functioning of the individual. Each case is as different as the individual so many particulars must be taken into account.


Before a guardian or conservator is appointed, the individual being put under the supervision of a guardian or conservator receives notice of the proceedings and has an opportunity to object to it and hire their own counsel to represent them.


In the end, it is the court's responsibility, not an individual or family member, to determine if an individual is incapacitated and to provide for the protection of that person's rights and due process during the proceedings. If a conservator/guardian is assigned, the court will determine the guardian’s duties and ensure that the guardian satisfies his or her fiduciary duties to the ward -- which includes an annual accounting and status report as part of the oversight.


However, there are some organizations that have made a cottage industry out of fighting against conservators and guardians, as in the Spears case, arguing that "the system" is controlling the ward and his or her finances for their own gains. Certainly, no one wants to deny a person his or her civil rights, but is these cases, it does save lives when the person is heading towards self-destruction.


For the average American, having empathy for a person worth millions of dollars, as in the case of Spears, is hard. Many think that they have so many advantages over the rest of us because of their wealth that their struggles become entertainment for the world. But think about the disadvantages they also have -- just because of their wealth and celebrity -- every move, every mistake, every dirty deed is videotaped and played over and over for millions to see and judge. Add to this, their friends and "trusted" associates are willing to sell their most intimate secrets to websites and gossip shows for monetary gain.


Imagine your worst time, poorest decision or emotionally vulnerable moment videotaped for the world to see and played over and over to the delight of others who dislike you for no good reason. Although money can be a blessing, it also means more problems and access to those things that could lead to negative outcomes for those with addictions or mental health struggles, as in the case of Britney Spears.


It was in the winter of 2007 when Spear's behaviors began to spiral out of control for the world to see. First, she entered a hair salon in California and asked the owner to shave her head. Initially thought to be a publicity stunt, it was actually a well viewed and publicized meltdown that occurred after failed marriages, loss of custody of her children and an increasing dependence on drugs and alcohol.


Although this was a young lady in need of help, paparazzi and television talk shows documented her antics for the entertainment of the masses. For months, Spears was followed by cameras and reporters, documenting every misstep and mistake. After years of treatment and time out of the spotlight, Spears made a decision to go back to work in Las Vegas and eventually begin to tour again this year.


Shortly after making this announcement, things quickly turned sour for her. Legal issues and family problems began to resurface and she cancelled the tour stating she was going on an "indefinite hiatus" which ended with her admission into psychiatric treatment.


With the court date looming regarding her conservatorship, the "Free Britney" movement gained momentum and her former manager, who had been accused of numerous improprieties while making outrageous statements about her conservators, joined them. This forced her legal team to seek a restraining order against him.


Then in late August, her longtime doctor, Tim Benson, who was tasked by the court to develop a detailed report about Spear's current functioning, died. Earlier this month, her father Jamie resigned as her conservator due to poor health and requested that a temporary one be put into place until January of 2020.


Spear’s longtime manager, Larry Rudolph, who is not a part of the conservatorship, supports this move, saying “a conservatorship is not a jail. It helps Britney make business decisions and manage her life in ways she can’t do on her own right now.” The next status hearing for Spears is scheduled for September 18th.


Unfortunately, Spears is not the only celebrity involved with a conservator. Former Nickelodeon star Amanda Bynes was put under a conservatorship headed up by her mother, Lynn. This included control over her finances, health and medical decisions.


In this case, the conservatorship was approved in 2013 following a series of very public incidents that included an arrest for possession of marijuana, attempted tampering with evidence, and reckless endangerment after throwing a bong from a 36th floor apartment in Manhattan to the street below. Two months later, she was ordered into psychiatric care after setting a fire in a neighbor’s driveway.


Bynes was a star on the children's channel, Nickelodeon, but soon experienced multiple breakdowns and was diagnosed with schizoaffective disorder

She appeared to do better after this incident but in 2014, she was arrested after a second DUI and was kicked out of a fashion school she had enrolled in. But it didn't stop there. It soon came to light that she was spending her money foolishly and recklessly. Receipts and credit card slips indicated that she had been going into jewelry stores like Cartier’s in Beverly Hills, buying expensive pieces and handing them out to strangers on the street.


Then came a very public battle with her family, that some say was supported and urged on by a group of non-family members who felt that Bynes was being held in a conservatorship "illegally". This rift between her and her parents resulted in Bynes roaming the streets of Hollywood homeless. When approached by paparazzi, she would rail against her parents accusing them of refusing to give her money for living expenses or to pay rent for an apartment. Things then took and even darker turn for Bynes as she began making delusional statements.


She claimed that a microchip had been implanted in her head that allowed her parents to control her thoughts and actions. This was then followed by accusations that her father had sexually abused her and then made a series of death threats against her parents. In an awkward attempt at control or emotional blackmail, she publicly offered to withdrawal her accusations if they gave her back control over her money. These series of actions by Bynes pushed her overwhelmed parents to assign the conservatorship to a private company and move away from her.


In the entertainment business, where performers have access to large amounts of money and suffer from a mental health disorder or addiction, unless an intervention occurs, the outcomes could be deadly. And no field of entertainment has been a more unfortunate example of this than professional wrestling.


As someone who had been involved in the business of pro wrestling for decades as well as being a licensed addictions clinician, I had a unique view of how these performers struggled, often alone, with demons fed by large sums of money that they unsuccessfully attempted to manage themselves. First, a brief explanation of the "sports entertainment" business and how it changed some three decades ago.


Before the 1980s, pro wrestling had only been a financially lucrative proposition for a very select few -- usually those who wore the championship belt or promoters in large cities and arenas. Then came the professional wrestling boom of the 80's, now called the new golden age of wrestling, that saw a surge in the popularity of professional wrestling in the United States and around the world. The expansion of cable television and pay-per-view access, coupled with the efforts of promoters such as Vince McMahon, saw wrestling shift from numerous regional organizations to one dominated by two nationwide companies -- McMahon's World Wrestling Federation and Ted Turner's World Championship Wrestling.


Suddenly, performers who earned a comfortable living while being on the road a few nights a week were now wrestling seven days a week. The payouts, which previously had averaged around a $750 a week, saw an exponential increase with wrestlers often making that much or more in one night . But with more work in the ring came more injuries and more time away from those who care about you. And unlike the other major entertainment fields, there were no "nights off" to heal. A wrestler only got paid only if they performed and they didn't perform, promoters were quick to replace them so working on broken ankles, with concussions and torn muscles became the necessity.


This dysfunctional culture of pro wrestling led to the wrestlers taking more and more pain medication in order to perform and avoid losing their spot on the card. This self medication led to addiction. And, living out of a suitcase seven days a week, stopping only to grab a night's sleep at a motel room, led to loneliness, boredom and alcohol use. Mix alcohol and pain medication, add loneliness and depression, and it became a recipe for disaster that played itself out for those in the business to see but was largely ignored by outsiders.


Although there exists a perception that pro wrestlers live an extravagant lifestyle today, three decades ago, nothing was further than the truth. Unlike rock stars and other pro athletes of the time, pro wrestlers were solitary performers -- independent contractors -- not supported by a union, a large staff of people or agents who looked out for their well being. In cases like Britney Spears, managers and agents saw a problem and offered help. When it came to pro wrestlers, there was no one there nor did anyone seem to care.


Money, access to drugs and alcohol, and no one to offer guidance to performers led to one of the most frightening and least talked about dark sides of the wrestling business -- the untimely deaths of performers due to drug overdoses and suicide -- as well as those who died young from what may have been listed as natural causes but in most cases had a link to the lifestyle they lived.


In a research study by academics at the University of Eastern Michigan, they studied a group of 557 former pro wrestlers. Of the 62 wrestlers in this group who died between 1985 and 2011, 49 died before the age of 50. Of this group, 24 of the 49 died before the age of 40, and two even died before the age of 30. Mortality rates for wrestlers, aged between 45 and 54, was 2.9 times greater than the rate for men in the wider US population, the study found.


Because many wrestlers lacked the basic understanding of money management as large amounts of cash began flowing their way, they used it to fuel a lifestyle that led to their deaths. Having managers or agents could have helped save many by controlling their finances thereby limiting their exposure to illicit drugs, but it was not to be. And even after retirement, many continued to spend and fund a lifestyle that ended their lives prematurely. Today, many of these wrestlers, now in their 60's, continue to drag their broken bodies to perform in small gyms and church basements for a $75.00 payoff because they didn't save money and have no other skills. And yes, even as seniors, they continue to use alcohol and pain medication to survive. There continues to be no one there to help them.


Some of those who died were friends of mine, others were acquaintances, but none the less, they died because help wasn't there. Among the performers we lost due to overdose or suicide included David Von Erich (age 25), Umaga (age 36), MIke von Erich (age 23), Bobby Duncum, Jr. (age 34), Buzz Sawyer (age 32), Chris von Erich (age 21), Kerry von Erich (age 33), Lance Cade (age 29), Gino Hernandez (age 29), and Rick Rude (age 40). This list numbers into three figures. This is where someone, like a conservator or guardian, could have stepped in and helped the person "right the ship" and perhaps, save a life.


Whether it be a Hollywood celebrity, sports star or an elderly neighbor, conservators and guardians serve a valuable purpose for those unable to care for themselves or those who may be targets of someone wishing to exploit them. As for those individuals and groups who advocate against conservators and guardians citing the loss of that person's civil rights, these same people would most likely be the first ones to demand answers if the individual was permitted to engage in continued self-destructive behaviors that led to their death.


Seeking control over another should only occur when all other methods of addressing the problem have been exhausted. No matter what, it is a delicate process -- even more so when family members are involved. In the majority of these cases, the ward will usually not agree that such an action is needed and the family unit ends up being tossed in a sea of emotional turmoil.


These cases present a Hobbesian choice between allowing the individual to continue down the path of self destruction versus the potential of destroying family relationships -- usually the only place where they can find the love and support they need. Yet, it's a choice that needs to be made when someone's well-being is at stake and living with the guilt of doing nothing becomes equally devastating.


It also presents a no-win situation for attorneys and the court because no matter what the outcome, each time a conservatorship or guardianship is filed, the result is that someone’s life will most likely be changed forever.


Don Drake oversees Connelly Law's Community Education Programming. He is a retired licensed clinician in the Commonwealth of Massachusetts with over three decades of experience working with older adults diagnosed with HIV/AIDS, substance abuse disorders, chronic homeless and mental illness. Prior to his retirement, he was the director of a unique treatment program for older adults with histories of mental illness, cognitive disabilities, and addiction at Shattuck Hospital in Boston. He was also a director at Steppingstone, Inc. in Fall River, Massachusetts where he was the clinical trainer, program and curriculum developer for the agency and oversaw treatment programming for older adults. He has over 40 years of human service and law enforcement experience and has worked as an administrator at programs in Boston, Hartford, Providence and Philadelphia, helping to structure, hire and train staff in providing behavioral and addictions treatments to adolescent and adult clients. Drake also worked as a trainer for the Massachusetts Department of Public Health presenting training on QPR, a suicide prevention curriculum for the general public, the Massachusetts Council for Problem Gambling and the Crisis Prevention Institute, an international training organization that specializes in the safe management of disruptive and assaultive behaviors. He is also a retired professional wrestler who is in the New England Professional Wrestling Hall of Fame. Drake can be reached at Connelly Law Offices, Ltd. at ddrake@connellylaw.com



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