The safeguards available to avoid a #FreeBritney movement in the UK

Britney Spears took the world by storm when she began topping the charts in 1999. After almost a decade in the spotlight, in 2008 following struggles with her mental health and a 'psychiatric hold' in hospital, Britney's father, Jamie Spears, applied to the US court to become a Conservator for his daughter.

The conservatorship gave Jamie the power to make financial, medical, professional and day-to-day decisions on his daughter's behalf and allowed him to draw an allowance in return for carrying out such duties. After 13 years under the control of her father, Britney has once again hit the headlines as she seeks to have her father removed as her conservator. In light of the media storm surrounding the #FreeBritney movement, the question on many people's lips is whether the same thing could happen here in the UK.

Deputyship

A deputyship is the UK's equivalent to a conservatorship and enables the Court of Protection ('COP') to appoint a person as a deputy for another person who is shown to lack capacity under the Mental Capacity Act 2005 ('MCA'). An application would need to be made to the COP demonstrating that a person lacks capacity, and this must be accompanied by a detailed capacity assessment from a medical professional. Once appointed, the deputy has the power to make decisions about a person's estate and/or welfare where that person cannot make such decisions for themselves.

Deputies are held to high standards of care in their decision making and must comply with the restrictions in the deputyship order together with acting in accordance with the five statutory principles set out in section 1 of the MCA:

1. A person must be assumed to have capacity unless it is established that he lacks capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

Protections against an abuse of power

The recent documentary 'Framing Britney Spears' made a shocking revelation that Britney's conservators had been running the conservatorship as a business and not only paying themselves a salary but taking a percentage of her income. One of the key differences distinguishing a deputyship from Britney Spears' conservatorship is the inability of a deputy to draw an income or profit from carrying out their duties. Deputy's are able to claim for reasonable expenses, but any remuneration can only be paid where authorised by the deputyship order. Other safeguards include, but are not limited to, the following:

• Deputies appointed to deal with property and financial affairs, must take out an insurance policy to protect against any financial loss resulting from an inappropriate use of funds. 
• Deputies must submit annual reports to the Office of the Public Guardian ('OPG') detailing any major decisions.
• The COP arranges for routine visits to deputies in order to ensure they are acting properly.
• Deputies are required to consider the incapacitated persons wishes, if it is possible to establish such and also to communicate with the person's family and friends when making decisions.
• Concerns about a deputy can be raised with the OPG, the local authority or the police by raising a safeguarding alert and an application can be made to the COP for removal of a deputy.
  
   

Lasting Powers of Attorney ('LPA')

Deputyships offer a wide range of protections for an incapacitated person however for someone with capacity, an LPA could be considered as an alternative arrangement.

LPA's enable a person with capacity to appoint a person of their choice to act on their behalf should they lose capacity. It gives a person an ability to appoint someone they trust and avoids the need for a time-consuming and often costly court process.

Summary

Britney Spears' sad situation highlights the inadequacies of the US conservatorship process. Although the system here in the UK is unlikely to be described as perfect, the best interests of an incapacitated person are the primary concern of the COP. UK citizens can rest assured that the many safeguarding procedures in our legal system provide a high level of protection.