If you have not heard about Ms Spears’ battle with her dad and a veritable litany of litigators, then you’ve been under a rock. Those non-rock dwellers will no doubt have wondered what on earth a conservatorship is and whether it could happen in Aotearoa.
In Californian law, a conservatorship is an arrangement that may be granted by a court for individuals who are no longer able to make their own decisions. A Judge appoints a responsible person or organisation ('conservator') to care for another adult or their finances ('conservatee').
Good news for most Kiwis (maybe not the rock dwellers); we don’t have this concept in our laws.
But, can relevant restrictions on the person and potential abuse of incapable persons occur in Aotearoa? While a 'conservatorship' does not exist as it does in Californian law such that we are unlikely to have a local #FreeBritney situation, there are several options in New Zealand to allow individuals to make decisions on another's behalf. They are:
Enduring Powers of Attorney: a person while they still have capacity may grant another person enduring powers of attorney (EPA) to look after their personal affairs or property in case they become unable to manage their own affairs.
Personal Orders: The Family Court may make a one-off personal order at the request of the subject person, or someone else.
Welfare Guardian or Property Manager: The subject person, or someone else, can ask the Family Court to appoint someone to act for them as a welfare guardian or property manager.
These orders are granted when the subject person cannot manage their health, property, or other parts of their lives, or when they lose the ability to communicate their wishes to other people. This could be due to several reasons, including mental or physical illness, head injury or disability. The incapacity may be temporary or permanent and the Court will determine the order on that basis.
To put it simply, the courts will only step in if absolutely necessary - the key principle is the promotion and protection of the subject person's welfare and best interests. There are also several safeguards surrounding property managers and welfare guardians to prevent the risk of abuse of such positions as much as possible.
The law in NZ assumes that you're able to make decisions about your personal care and welfare by yourself unless it is proven that you can no longer do those things, for example, the Family Court will not make any orders just on the basis that you might be making decisions that seem strange to other people (as seems to have happened in the Britney case). Instead, they’ll look at medical evidence as well as affidavits made by people around you.
We’d like to point out that conservatorships and similar laws in other jurisdictions are not always a bad thing. Powers like these are often a necessary course of action to care for and protect people who no longer have the capacity to do so themselves. For example, EPA’s exist to ensure that your assets are managed in the way that you want them to be if a worst-case-scenario situation occurs.
If Britney Spears’, her court case, and the word ‘conservatorship’ has got your head spinning with thoughts of how you may like to look after your own estate or help out a loved one with theirs, get in touch with us. We’ve got the tools, the knowledge, and the understanding to help you sort your ‘stuff’ out in a way you would like to. Oh and, #FreeBritney.
Photo Credit: Creator: Matt Winkelmeyer | Credit: Getty Images