Receive all the latest news and insights straight to your inbox
Subscribe
Subscribe
Overprotected: Britney Spears’s conservatorship action is a reminder that vulnerable people need legal safeguards
In 2021, American singer Britney Spears took legal action to remove her father as conservator of her financial and personal affairs. She wanted him replaced with an independent accountant. Britney Spears has been subject to a conservatorship since 2008.
She described the conservatorship as cruel and abusive and said she was required to take medication that made her “feel drunk.”
In August 2021, Jamie Spears announced that he would step down as conservator, although there are no details when this would happen. He indicated that he would help smooth the transition to a new conservator.
Although the allegations were serious and shocking, they may also prompt us to consider whether administration and guardianship laws in Victoria adequately protect vulnerable people.
What is a conservatorship?
A conservatorship is a legal appointment of someone (the conservator) to manage an individual’s financial and personal affairs when the individual is incapable of managing their own affairs, for example, due to old age or mental incapacity.
Conservatorships are used in the United States.
Does Australia have conservatorship laws?
Australia doesn’t have conservatorship laws, but most Australian States and Territories have laws to allow for the management of a person’s legal, financial and personal affairs when they’re incapacitated, incapable, or otherwise vulnerable (the protected person).
In Victoria, we have guardianship and administration laws.
What are guardianship laws in Victoria?
When a person can’t make their own decisions because of a disability, Victorian guardianship laws allow a court to appoint a guardian to make personal decisions on their behalf. A disability can include physical or intellectual injury or disability or mental illness.
Personal decisions may include medical, accommodation and lifestyle decisions. However, guardians don’t make financial decisions for the protected person.
Guardians are appointed by order of the Victorian Civil and Administrative Tribunal (VCAT). Guardians must:
- Act in the protected person’s best interests
- Prevent the protected person from being harmed
- Act honestly and to the best of their abilities
Where possible, guardians must consult the protected person before making any decisions affecting them. They must try to make decisions that the protected person would have made for themselves.
What are administration laws in Victoria?
Administration laws in Victoria allow for the appointment of an administrator to make legal and financial decisions for a protected person in certain circumstances. For example, when the protected person can’t make their own decisions because of mental or physical injury or disability, or mental illness.
Similar to guardianship orders, you can apply to VCAT for an administration order. An administrator must:
- Act in the protected person’s best interests
- Prevent the protected person from being harmed
- Act honestly and diligently
Administrators must also avoid conflicts of interest. For example, a conflict of interest may arise if an administrator makes a financial decision on behalf of the protected person, potentially benefitting the administrator financially or in some other way.
Where possible, administrators must consult the protected person before making any decisions affecting them. They must try to make decisions that the protected person would have made for themselves.
Who can apply for guardianship or administration orders?
Any concerned person can apply for an administration or guardianship order, but usually applications are made by family members or carers.
Which order?
Administration and guardianship laws in Victoria are closely related. Often, a person struggling to make personal decisions may also struggle to manage their finances (or vice versa). So while it’s essential to consider which order is necessary, it’s also common for people to apply for both orders simultaneously.
When considering whether the orders are necessary, you should also give some thought to whether the person can make some decisions on their own.
Can I replace my guardian or administrator?
You can ask VCAT to replace your guardian or administrator if you believe they’re:
- Not acting in your best interests
- Acting dishonestly
- Acting in a way that will cause you harm
You can also request a replacement if you believe you’re capable of resuming control of your affairs.
You can apply to VCAT for a reassessment hearing if you have tried talking to them but haven’t been able to resolve the situation.
What should I do if I need help managing my affairs?
Planning for guardianship or administration often occurs when a person makes a will, power of attorney or advance care directive (or a combination of any of these).
We recommend that you discuss your wishes with your lawyer. Although these things can be out of your control, there are ways to prepare and plan so that your wishes are clear.
The final word
Thankfully, administration and guardianship applications don’t usually attract the same level of publicity seen in Britney Spears’ conservatorship case. Victorian laws exist to protect and support vulnerable people. They require guardians and administrators to be accountable. However, the system isn’t perfect, and sometimes legal action is needed to remove or replace a guardian or administrator.
Contact us for more information about administration and guardianship laws in Victoria.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can receive from marshalls+dent+wilmoth and other relevant experts.
