One of the major headlines in the news are the issues circling Britney Spears. Although well acclaimed for her music, her name is also strongly associated with the issue of conservatorships. Although she is 39 years old, and one of the most successful musical artists in the world, she is not in charge of her own life. Following a very public meltdown in 2007 which graced the cover of every tabloid, a conservatorship was put into place the following year.
In Florida, a conservatorship typically occurs when a person goes missing, such as a minor or a person with dementia who run away. It may also apply if a military person in combat is missing for over a year. As long as the circumstances indicate that the person died or may have disappeared due to their mental issues, they may be deemed to be an “absentee”. The court may appoint another person to manage the missing person’s affairs if the missing person qualifies as an “absentee”.
A conservator is a court-appointed person who may handle the affairs of the absentee (also known as the conservatee). The most common conservators are spouses, adult children, parents, and siblings. The conservator can typically manage financial affairs including the right to sell property, manage assets and collect income.
In Florida, if an adult is incapacitated due to mental issues – as with Ms. Spears – a guardianship may be formed. A guardianship, if done with consent, is voluntary guardianship. If the individual does not grant consent, an involuntary guardianship may be formed. Prior to appointing a guardian, a determination must first be made that the person is “incapacitated”. Once an individual files a petition with the court to determine another person’s capacity, the court will appoint a committee of three members to examine the person. The members consist of at least two physicians who are experts in the area of capacity. They will perform a three-part assessment including a physical exam, mental exam, and a functional assessment. The person alleged to be incapacitated also receives a court appointed attorney charged with safeguarding the person’s legal rights. Any person who is an adult and a Florida resident may serve as a guardian unless they are a convicted felon or incapable of performing the related duties.
The guardian may manage all of the ward’s assets. If appointed to do so, the guardian may also make medical and personal decisions for the ward. A guardianship is not always permanent. If the ward recovers from the condition that caused them to become incapacitated, they may petition the court to restore their rights.
Obviously, the loss of one’s rights to control their own affairs is one of the greatest losses one may suffer. As a result, the bar to make these determinations is high and requires the agreement of multiple parties, including experts.