On November 12, 2021, Judge Brenda Penny ruled that the conservatorship over Britney Spears’ person and estate is “no longer required, effective immediately”. For the first time since 2008, the world famous singer will be able to determine her own destiny and make her own decisions regarding her personal life, finances and property. The #FreeBritney movement is no longer a cry for change but rather an actual reality. What does this mean for everyone involved?
BRITNEY SPEARS IS BACK IN CHARGE OF ALL ASPECTS OF HER LIFE
Ms. Spears’ conservatorship was actually two different parts under California law. The first part was the conservatorship of her person, which means that someone was appointed to be in charge of her wellbeing and health/medical decisions. Since 2019, the conservator of her person was Jodi Montgomery, a licensed personal fiduciary and care professional. The second part was the conservatorship of her estate, which means that someone was appointed to be in charge of all her income and financial decisions. Her father, Jamie Spears, had been the conservator of her estate until September 2021 when his authority was suspended by the court. Currently, certified public accountant John Zabel was acting as conservator of her estate and will stay on for a brief period of time to ensure the transfer of assets back to Ms. Spears.
With the conservatorship having ended, Britney Spears immediately regains control of her decision-making authority regarding her residence, daily programming, health care and social activities. Her assets will be transferred back to her control and she will unilateral be able to decide how her money will be spent. Essentially, Britney Spears will be back in the same position she was placed in right before the conservatorship was granted and will be in full control of her estate and her career path.
In Michigan, a conservator is appointed to a person in need of protection to manage their financial affairs and property. A guardian is appointed to a legally incapacitated person to manage their living situation, aspects of daily life and health care decisions. These are two distinct roles with distinct responsibilities, although the same person can be appointed to perform in both positions. Like in California, a Michigan probate judge can also terminate either the guardianship or conservatorship if it determines that the ward has the ability to regain control over their own affairs and make informed decisions.
BRITNEY SPEARS’ CONSERVATORS COULD FACE CIVIL OR CRIMINAL LIABILITY FOR MALFEASANCE IN OFFICE
Although the conservatorship is terminated, it doesn’t mean that Ms. Spears’ fiduciaries are off the hook. According to her attorneys, forensic accountants are digging into the 13-year history of the conservatorship to see how money was spent. If there was any misappropriation of monies, self-dealing or even embezzlement, then Jamie Spears or his associates could be liable for civil and criminal penalties for their acts in office.
In Michigan, a probate court that determines that the conservator lost, mismanaged or stolen any money or property from the estate can surcharge that conservator to pay those monies back to the estate. The probate court could also decide to disgorge the conservator of any fiduciary fees, attorney fees or reimbursements that he or she may be due. The conservator can also be held in contempt of court for violating any specific court orders and be punished with up to 93 days in jail or a fine of $7,500.00 or both (this is in addition to any restitution, attorney fees and costs assessed against the conservator). “A question of liability between the estate and the conservator personally may be determined in a proceeding for accounting, surcharge, indemnification, or other appropriate proceeding or action.” MCL 700.5430(4).
In addition, “[a] conservator is personally liable for an obligation arising from ownership or control of estate property or for torts committed in the course of estate administration only if personally at fault.” MCL 700.5430(2). The ward or the successor fiduciary can file suit against the conservator for common law conversion of estate assets. The tort of conversion is any distinct act of dominion wrongfully exerted over another person’s personal property in denial of or inconsistent with the rights therein. Head v Phillips Camper Sales & Rental Inc, 234 Mich App 94, 111; 593 NW2d 595 (1999). To support an action for conversion of money, the defendant must have an obligation to return the specific, identified money entrusted to his care.” Blue Cross & Blue Shield of Michigan v Folkema, 174 Mich App 476, 479; 436 NW2d 670 (1988). The wrongdoer can be subject to compensatory, exemplary or even putative damages.
The conservator can also be liable for treble damages for statutory conversion under MCL 600.2919a. “A person damaged as a result of either or both of the following may recover 3 times the amount of actual damages sustained, plus costs and reasonable attorney fees:”
- “(a) Another person’s stealing or embezzling property or converting property to the other person’s own use.”
- “(b) Another person’s buying, receiving, possessing, concealing, or aiding in the concealment of stolen, embezzled, or converted property when the person buying, receiving, possessing, concealing, or aiding in the concealment of stolen, embezzled, or converted property knew that the property was stolen, embezzled, or converted.”
Finally, the conservator can be liable for criminal penalties and can be prosecuted for a crime. “Any general or special administrator or any executor or guardian, who has been appointed by a judge of probate and who has collected any goods, chattels, money or effects of the deceased or ward, and who has wilfully appropriated the same to his own use and who has been ordered by the judge of probate forthwith to deliver to his successor in trust, ward or any person lawfully entitled thereto, all the goods, chattels, money or effects of the deceased or ward in his hands, and who shall wilfully omit, neglect or refuse for 60 days to obey said orders, shall be deemed to have committed the crime of embezzlement, and shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 10 years, or by fine not more than 5,000 dollars.” MCL 750.176. Judges and prosecutors can and do punish embezzlers harshly for taking advantage of an incapacitated person.
BRITNEY SPEARS BENEFITS FROM A GOOD PROBATE LAWYER, AND YOU CAN TOO
Most of the time, it is actually unusual for a conservatorship or guardianship to end with the ward regaining control of their affairs. An individual often receives a conservator or guardian when he or she is infirmed by old age, incapacitated by mental illness and deficiency, or physically hampered by a developmental disability. These are usually conditions that someone does not recover from, but it sometimes happens. In Britney Spears’ case, it is unusual for an individual of her age and wealth to be under this type of court-ordered conservatorship for such a long length of time. Her ordeal has brought significant public attention and scrutiny to the abuses found in court-appointed guardianships and conservatorships. It is likely changes and new legislation will result to create reforms in this area of the law that has not received much publicity until Britney Spears came along.
The appointment of a guardian or conservator will significantly change the life of the person whose affairs are being controlled. A skilled probate lawyer is available to fiduciaries and wards alike to advise them of their legal rights and advocate for their preferred position in court. The expense of the attorney is chargeable to the estate most of the time in any event.
If you or a loved one have any further questions about guardianships and conservatorships or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
