The key differences between US conservatorship and English deputyship23/02/2021
The US system of ‘conservatorship’ has been majorly highlighted across the globe in the wake of the recent ‘Framing Britney Spears’ documentary and the ongoing #freebritney movement.
Under the system, Spears’ father has had control over her (substantial) finances and affairs for over a decade since the singer suffered a mental breakdown and subsequent hospitalisation. Recently, however, Britney has tried to challenge her father’s appointment and terminate the agreement in a move that has been denied by the courts.
But is conservatorship a principle under English law?
The short answer is: no. Under the law of England and Wales the equivalent is the system of ‘deputyship’; when an individual is deemed to ‘lack mental capacity’ to manage their own finances, a ‘deputy’ is appointed by the Court of Protection (CoP) on their behalf. An individual may lack mental capacity for a number of reasons:
- As a result of suffering a serious brain injury or illness
- They are living with a form of dementia
- They have a severe learning disability
There are two types of deputy: a property and financial affairs deputy appointed to manage finances (such as bills or pensions) on the individual’s behalf; and a personal welfare deputy appointed to make decisions around medical treatment and how the individual is looked after (these are rarely granted by the court). Deputies could be a family member or friend or a professional, such as a solicitor. All court appointed Deputies are accountable to, and monitored by, the Office of the Public Guardian (OPG).
Following their appointment, the Deputy will be served with a court order detailing what they are and are not permitted to do.
In England and Wales, deputies are required to keep a detailed record of decisions made in their capacity as deputy and submit an annual report to the OPG. Deputies may be reimbursed for reasonable expenses incurred in their role such as travel, postage and phone calls. Any unreasonable expenses will be required to be repaid to the OPG and may result in removal of deputyship.
This is distinctly different to the way in which Britney Spears’ conservators have reportedly been able to handle her affairs: taking a percentage of her income as well as a salary from the affairs they were appointed to manage.
In England and Wales, deputyship can be ended for a number of reasons:
- should the deputy no longer want or need to be appointed;
- the individual requiring deputyship dies;
- or if they have recovered mental capacity.
There are various procedures and documentation needed to complete this process, and deputyship cannot end until the relevant court orders have been issued.
It is important not to confuse the deputyship system, with Lasting Powers of Attorney (LPAs), in which an individual appoints an attorney to make legal decisions on their behalf in the event that they lose capacity. Having an LPA in place offers peace of mind that your affairs will be looked after if you become unable to manage these yourself, and by the people you have chosen, allowing you to retain control. It is also a much shorter and less expensive process, as deputies incur annual fees and insurance premiums for the duration of the deputyship.
Solicitors can act as a court-appointed deputies, should those close to the individual be unwilling or unable to take on the role. Mincoffs wills and probate team have undertaken this responsibility for a number of clients and are highly experienced to advise on the deputyship process.
If you would like to speak to a member of the team about appointing a deputy, or putting in place Lasting Powers of Attorney in preparation for your future, call our friendly, understanding team today on 0191 212 7773 or fill in the form below.
At time of writing, following a November court ruling, Britney’s father remains co-conservator with equal authority alongside financial company Bessemer Trust, with the case to be reviewed again in late 2021.