I have been reading with a personal and professional interest the story of Britney Spears and her fight against her conservatorship. I join the many voices in commenting on a situation we all know little about personally, but I have a professional perspective to share.
As one of the lead attorneys in the Supreme Court of Ohio’s McQueen case,[i] which affirmed the right of a person under guardianship to have independent legal counsel when the guardianship is under review, one aspect of the Spears conservatorship drama has really bothered me. Spears recently testified that she did not know she could go to court to stand up for her rights.[ii] Could that possibly be true? It is certainly possible she was informed of her rights early on and either was not in a mental state to absorb that information or simply forgot. On the other hand, once the conservatorship was established, it is conceivable she just did not know.
My question is this: is it possible that Spears did not have the right to counsel of her own choice to provide her with a voice over her own future?
To get our terminology straight, what is called a conservatorship in California is a guardianship in Ohio. It is a legal arrangement where someone else makes personal and financial decisions for another. Guardianship is used to protect someone who cannot care for herself or her property and results in a guardian being appointed to make important decisions.
I wanted to approach my question from an Ohio perspective. What is the answer from an Ohio standpoint? How could Spears have gotten her own attorney in Ohio and challenged her situation? Let’s pretend Spears is an Ohio resident subject to Ohio law.
In full disclosure, since my role in the McQueen case, my practice has largely been on the other side of the issue representing guardians and potential guardians. I even have the honor of currently serving as the guardian for two people.
The issues around whether a guardian is needed, and how restrictive a guardianship should be, are often tough issues. On one side of the coin is a legitimate desire to protect a loved one from harm; on the other side is protecting a person’s autonomy. What should not be at issue is ensuring that a person who may be placed under a guardianship has a voice in that process.
To have that voice, either at the initial stages of establishing a guardianship or during a later review, it is critical to provide legal counsel of the person’s own choice. However, from an Ohio and U.S. Constitutional standpoint, Spears would not have a right to have independent counsel of her choice, even though so much is at stake for her, including her liberty and control of her fortune. Instead, knowing that so much autonomy is lost under guardianship, the Ohio legislature gave her important statutory rights.
These rights include initially to have counsel of her choice appointed to represent her even before a guardianship goes into effect.[iii] But, what about later?
Ohio law provides Spears with a means of getting her day in court, called a review hearing. All Spears has to do is to get a “writing” to the court. She has that right as long as at least 120 days have passed since the initial appointment and she has not had another review hearing within the past year. [iv] Then, it is the court’s job to set a hearing.
Under the McQueen decision, Spears would have all of the rights that attended the initial hearing. She would have the right to present evidence and witnesses including independent medical or psychological evidence. In contrast, her guardian (in this case her father) has the evidentiary burden to show that a guardianship is still needed. Her father would have to meet this burden by a high standard of proof called clear and convincing evidence. He would also have to show there is no lesser restrictive alternative to guardianship. Lesser restrictive alternatives might include a voluntary arrangement (confusingly called a conservatorship in Ohio) or the possible appointment of agents to act on Spears’ behalf with regard to her healthcare or finances. After the hearing, the court would either end or continue the guardianship. Sometimes the hearing results in changes in who is required to act or in how the guardian behaves, even if the guardianship continues. Sometimes the court will appoint a new guardian.
One question frequently comes up as to how can someone who has been determined not to be able to make financial decisions select her own counsel. To this point, all of the rights the person had before she was placed under guardianship are in effect. That includes the right to choose her own attorney.[v]
I offer one caveat to the attorney willing to boldly and independently step in for Spears. An attorney who takes that representation on does so at that lawyer’s own risk. Probate courts in Ohio have broad discretion whether to award reasonable attorney’s fees if the person remains under guardianship.[vi]
While I am not siding with the #FreeBritney crowd, nor in any way opposed to her efforts, I side squarely on the side of her getting her day in court, with an independent lawyer of her choice. So instead of #FreeBritney, how about #HerOwnLawyerForBritney as the newest hash tag?
[i] In State ex rel McQueen, 135 Ohio St.3d 291, 2013-Ohio-65.
[iii] Ohio Revised Code § 2111.02(C)(7)(a).
[iv] Ohio Revised Code § 2111.49(C).
[v] The Ohio Third District Court of Appeals decision in In re Guardianship of Carpenter, 66 N.E.3d 272, 2016-Ohio-3389, confirms a person’s right to choose her own counsel during a review hearing
[vi] See Rule 71 of the Rules of Superintendence for the Court of Ohio and Rule 1.5 of the Ohio Rules of Professional Conduct