Most people will be familiar with the very public rise and fall of pop icon, Britney Spears. We all witnessed the headlines that followed Britney’s journey as she transformed from the world’s inaugural and most Googled pop princess, to a young mother tormented by the paparazzi, and the toll this inevitably took on her mental health.
As it turns out, Britney had been fighting a rather complex legal battle which had been hidden from public view. In 2008, she ended up hospitalised; detained involuntarily in a psychiatric facility for evaluation, and ultimately stripped of her ability to make basic decisions for herself, such as what to wear and eat. Jamie Spears, Britney’s father, was granted what was initially an emergency temporary conservatorship by an LA Superior Court judge. Eight months later, the conservatorship was made permanent. Britney was 26 years old at the time.
What is a conservatorship?
The California Probate Code states that a conservator can be appointed if someone is ‘unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter’. A conservator can be established over someone’s financial affairs if that person is ‘substantially unable to manage his or her own financial resources or resist fraud or undue influence’1.
Generally speaking, a conservatorship would not be granted for someone who can cooperate with a plan to meet their basic needs or who has the capacity to sign a power of attorney instead2. The threshold appears to be appropriately high, and yet a world-famous talented musician and performer, who continued to make millions of dollars from performances throughout the conservatorship, was allegedly unable to provide for her own personal needs for physical health, food, clothing, or shelter.
What’s the equivalent in Queensland?
In Queensland, there are two forms of conservatorship: guardianship and administration. A guardian is appointed to make personal and health decisions on behalf of an adult, and an administrator is appointed to make financial decisions on behalf of an adult. These two appointments are governed by a piece of legislation in Queensland called The Guardianship and Administration Act 2000 (the Act).
The Queensland legislative framework
The guardianship system in Queensland provides for the appointment of a guardian and/or administrator for an adult who has impaired capacity for the matter, where:
- there is a need for a decision in relation to the matter, or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and
- without the appointment, the adult’s needs would not be adequately met or the adult’s interests adequately protected3.
Under the Act, the starting position in any application is a presumption of capacity. This is achieved through the “General Principles” of the Act which are, at their core, a statement of human rights. These rights have been further codified and strengthened through the recent enactment of the Human Rights Act 2019 in Queensland4. It is therefore up to the person bringing an application for the appointment of a guardian or administrator to prove that the adult in question lacks capacity (rather than the adult in question having to prove that they do have capacity). In theory, this should operate as a protection to a person’s human rights.
In practice however, once a decision as to capacity has been made, there are significant barriers, practically and financially, in overturning such a declaration. For instance, a capacity assessment with a medical practitioner can cost upwards of $4,000.
Whilst there is no definition of incapacity, there is, within the Act, a definition of capacity5, and that has three elements:
- understanding the nature and effect of decisions about the matter; and
- freely and voluntarily making decisions about the matter; and
- communicating the decisions in some way.
Capacity is also interpreted to be time-specific, domain-specific and decision-specific. For example, a finding could be made that although Britney lacked capacity to manage a large quantum of money and make complex financial decisions, she may still have capacity to make treatment decisions about her own health and body (such as whether she wanted an IUD inserted).
It also means that even though a decision about her capacity was made at the initial hearing back in 2008, capacity is “time” specific, and things may have drastically changed between then and now.
Could Britney choose her own lawyer?
A stark difference to the Californian position is our interpretation of the legislation in relation to a person’s capacity to instruct a lawyer when they are under such an order. There are reports that Britney had been unable to hire an attorney as well as a Court ruling to the effect that Britney had no capacity to retain an attorney.
In the Queensland case of Bucknall v Guardianship and Administration Tribunal6, SJA Byrne held that adults who are the subject of applications must be deemed to have capacity in order to instruct lawyers to either:
a) resist an application for a guardian or administrator to be appointed for them;
b) to make an application for a declaration that the adult has capacity for a matter; or
c) to make an application for review of the appointment of a guardian or administrator (with the purpose of having the appointment revoked), provided that the lawyer can obtain coherent instructions from the client in relation to the conduct of the matter.
His Honour held that to adopt any other interpretation would be to produce an illogical and absurd result that would undermine the presumption of capacity contained in the Act.
Protections in our legislation
Another protection in our legislation is the ability to apply for review of an order.
In Queensland, if Britney wanted to apply to have another person appointed as her guardian or administrator, or for a declaration that she does have capacity (and under the Act, if it is determined that the Adult has capacity for the matter, then the existing appointment must be revoked7), she could do so at any time on her own initiative. Or another interested party could do so.
Even if Britney didn’t initiate a review, all applications are reviewed by QCAT at the end of what is most commonly a five-year appointment.
The law in Queensland, and the framework in which appointments are made, is centred around such appointments being of last resort. There is greater awareness of the enormous infringement a guardianship or administration appointment can have on a person’s human rights and dignity, especially if it is unfounded or there is a “less restrictive” way to achieve the same outcome. The recent changes to the guardianship framework in Queensland place greater importance on the presumption of capacity and a focus on adults with impaired capacity participating in decision-making8. There is also the recent enactment of the Human Rights Act in Queensland in 2019, which should be considered in decisions made by the Queensland Civil and Administrative Tribunal.
So, would Britney be better off living in Queensland? For the most part, yes! Recent legislative developments in Queensland reflect a promising advance towards a human rights-based approach where stories like Britney’s will (hopefully) be prevented from slipping through the cracks. But, where there is a will there is a way, and exploitation can always occur! For health practitioners and others working with patients and their substitute decision makers, it is important to be alive to the legal issues that surround these arrangements.
1 California Legislative Information
2 California Courts Conservatorship
3 Guardianship and Administration Act, s12
4 Human Rights Act 2019 (Qld)
5 Guardianship and Administration Act, Schedule 4
6  QSC 128
7 Guardianship and Administration Act 2000 (Qld) s 31(1).
8 Guardianship and Administration Act 2000 s 11B (8).