Testing Britney Spears: Restoring Rights Can Be Rare and Difficult
With her voice shaking with anger and despair, pop star Britney Spears has repeatedly asked in court to be released from the tutelage that controlled her money and her personal life for 13 years. In addition, she asked the judge to break the arrangement without giving her a psychological assessment.
This is a request that legal experts say is unlikely to be granted. The mental health assessment is usually the pole star in a constellation of evidence that a judge considers when deciding whether to restore independence.
Its underlying purpose is to determine whether the conditions that led to the imposition of trusteeship have stabilized or been resolved.
The assessment process, which hardly mixes mental health criteria and legal standards, illustrates why breaking out of strict control is difficult and rare. State laws are often ambiguous. And their application may vary from county to county, judge to judge, on a case-by-case basis.
Isn’t Ms. Spears’ artistic and financial success proof that she is self-sufficient?
Yes and no. A judge looks for what is called, in law, “capacity”. The term generally refers to benchmarks relating to a person’s functional and cognitive capacities as well as their vulnerability to harm or coercion.
Under California law, which governs Ms Spears’ case, a person deemed to have the ability can articulate risks and rewards in making decisions about medical care, wills, marriage, and contracts (such as the hiring of a lawyer), and can feed, clothe and house. .
Annette Swain, a psychologist in Los Angeles who performs neuropsychological assessments, said that just because someone doesn’t always exercise good judgment, it doesn’t mean they lack ability. “We can all make bad decisions at many times in our lives,” she said. “But that doesn’t mean we should have our rights taken away. “
Even so, Ms. Spears’ professional and financial successes do not directly reveal whether she regained her “legal mental capacity”, which she lacked in 2008, after a series of public failures, captured breathlessly by the police. media. At that time, a judge ruled that Ms Spears, who had not appeared in court, was so fragile that guardianship was warranted.
Judges generally authorize guardianship for one of three broad categories: severe psychiatric depression; a chronic disease that gets worse such as dementia; or an intellectual or physical disability which seriously impairs function.
Markers indicating that a person has regained their abilities appear to set a low bar. But in practice, the bar can be quite high.
“’Restored to full capacity’ before the psychotic breakup? Or the age of the person now? This expression is fraught with value judgment, ”said Robert Dinerstein, professor of disability rights law at American University.
Files detailing the motives for Ms Spears’ father, Jamie Spears, to petition to become his daughter’s curator are sealed. A few factors suggest that the judge viewed the situation as serious from the outset. She has appointed curators to oversee Ms Spears’ personal life and finances. She also ruled Ms Spears couldn’t hire her own lawyer, although a lawyer the singer consulted at the time said he believed she could.
Earlier this month, Los Angeles Superior Court Judge Brenda Penny said Ms Spears could retain her own attorney.
Does “capacity” differ from state to state?
Yes. Some states, such as California, detail basic functional capabilities. Others don’t. Colorado recognizes modern advancements such as “appropriate and reasonably available technological assistance”. Illinois looks for “mental deterioration, physical disability, mental illness, developmental disability, gambling, idleness, debauchery, substance abuse or drug abuse.”
Sally Hurme of the National Guardianship Association noted, “You could be found disabled in one state but not in another. “
Who performs the psychological assessment?
Ideally, a forensic psychiatrist or psychologist specializing in neuropsychological assessments. But some states simply specify “doctor”. Psychiatrists tend to place more emphasis on diagnoses; psychologists emphasize tests that measure cognitive abilities. Everyone reviews medical records and interviews family, friends and others.
Assessments can span several days. They vary considerably in depth and duration.
Eric Freitag, who does neuropsychological assessments in the Bay Area, said he prefers to interview people at home where they are often more comfortable and where he can assess the environment. He asks questions about financial literacy: paying bills, medicare, even calculating change.
Safety assessment is essential. Dr Freitag will ask what the person would do if a fire broke out. “I would call my daughter,” replied one of his subjects.
Who chooses the evaluator?
Ms. Spears has not been able to choose her appraisers in the past because the restaurateur has the power to make those decisions. However, if it decides to dissolve the tutorship, it can select the assessor to help it put together its case. If the curator, his father, opposes his request and opposes his selection, he could nominate a candidate to carry out a further assessment. Ms Spears would likely take both tabs as the costs of guardianship.
To avoid a bitter expert battle and the appearance that an assessor hired by either side would be inherently biased – as well as the strain of two assessments on Ms Spears – the judge could try to bring both parties to agree on an independent tribunal appointed by the tribunal. doctor.
What impact does a mental health diagnosis have on an assessment?
Many states explicitly say that a diagnosis of a serious mental health disorder is not, in and of itself, evidence that a person should remain in guardianship.
Stuart Zimring, a Los Angeles County attorney specializing in elder law and special needs trusts, noted that he previously represented a doctor with schizophrenia and bipolar disorder who was under guardianship. The doctor’s rights were finally restored after he proved he was attending counseling sessions and taking medication.
“It was a joyful day when the guardianship ended,” Mr. Zimring said. “He started practicing medicine again, under supervision. “
The association between the diagnosis of a serious mental disorder and the determination of a disability confuses Dr. Swain, the Los Angeles psychologist.
“Whatever they ended up diagnosing Britney Spears, was it so severe that she didn’t understand the decisions she had to make, that she couldn’t take care of herself adequately? ? ” she asked. “Where do you draw that line?” It’s a moving target.
Should the judge accept the conclusions of an assessor?
No, but judges usually do.
What standard does a probate judge apply in making a decision?
In most states, when a judge approves a guardianship, which restricts a person’s autonomy, the evidence must be “clear and convincing”, a rigorous standard just below the “beyond a reasonable doubt” standard. .
But when a conservative wants those rights restored, many experts believe the standard should be more lenient.
Some states apply a lower standard for terminating a trusteeship. In California, a judge may do this on the basis that it is more likely than not (“preponderance of evidence”) that the curator has the capacity. But some states say the evidence to win a ticket must always be “clear and convincing.”
Most states don’t even set a standard.
“There is an underlying assumption that if you can get the process right, everything would be fine and we would not deprive people of their rights,” said Jennifer Mathis, deputy legal director of the Bazelon Center for Law on Law. Mental Health. “Our point of view is that the process is fundamentally broken and that we shouldn’t be using guardianship in so many cases. “
If someone is doing well, is guardianship no longer necessary?
Yes and no. “The judges are haunted by the people before them who have been released and disaster strikes,” said Victoria Haneman, professor of trust and estate law at Creighton University. “So they take a conservative approach to freedom. “
Describing the Kafkaesque conundrum of guardianship, Zoe Brennan-Krohn, a disability rights lawyer at the American Civil Liberties Union, said, “If she does very well, the system works and should continue. If she makes choices that others don’t agree with, then she is unreliable and needs the system.
Or, as Kristin Booth Glen, a former New York State judge who oversaw such cases and now works to reform the system, put it, “Conservation and guardianship is like cockroach motels: you can register but you cannot verify. “
Can an assessor recommend a less restrictive approach than a guardianship?
On time. Judge Glen once approved the end of the guardianship of a young woman originally considered to have the mental acuity of a 7-year-old. After three years of thoughtful interventions, the woman, since married and raising two children, had become able to participate fully in her life. She relied on a team for “assisted decision-making”, which Judge Glen called “a less restrictive alternative to the draconian loss of freedom” of guardianship.
A supported decision-making approach has been welcomed by the Uniform Law Commission, which drafts model laws. He said judges should seek “the least restrictive alternative” to guardianship.
To date, only Washington and Maine have fully adopted the model recommended by the commission.
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