By Marissa Kindberg
On June 23, 2021, Britney Spears testified to a California court requesting the termination of her conservatorship, which has been in place for over a decade. In her testimony, Ms. Spears detailed her experiences and called the conservatorship “abusive” as she attested to situations in which she was forced to work, take medication, and remain on birth control against her wishes. These allegations have shocked the nation as archaic and cruel as Ms. Spears is unable to make choices regarding her own body and finances. Ms. Spears allegations have sparked new questions concerning the law around conservatorships and guardianships.
In New Jersey, conservatorships and guardianships serve two separate and distinct purposes. Conservatorships are “decision making arrangements” implemented when a person is unable to fully govern his or herself, and is implemented voluntarily. Guardianships, on the other hand, are involuntary legal arrangements that provide surrogate decision making for a person who is incapacitated and unable to manage his or her own property. Both conservatorships and guardianships are meant to help people who are unable to manage their own property and decisionmaking.
In New Jersey, a conservatorship can be implemented where someone is not mentally incapacitated, but is unable to care for his or her own property. Conservators serve as fiduciaries, rather than total decision makers for the conservatee. New Jersey law defines a conservatee as “a person who has not been judicially declared incompetent but who by reason of advanced age, illness or physical infirmity, is unable to care for or manage his property or has become unable to provide for himself or others dependent upon him for support”. So the conservatee must agree to the imposition of a conservatorship, or the court will not appoint a conservator.
Since conservatorships are voluntary, the process of terminating a conservatorship is relatively simple, He or she only needs to make an application to the court expressing that they no longer want the conservatorship. Once the application is made, the court will terminate the conservatorship, and the conservator must return all property and monies to the former conservatee.
On the other hand, guardianships may be implemented where a person suffers from, “idiocy, insanity, lunacy, unsoundness of mind or habitual drunkenness of a person”. Guardianships are involuntary and require a determination of mental incompetency before the court will allow a guardian to serve as an individual’s surrogate decision maker.
Once the court has made a finding of mental incompetency, it will select a guardian, often a family member. The responsibilities of a guardian are to act in the best interest of the incapacitated person and the guardian must encourage the incapacitated person to participate in the decision-making process to the maximum extent possible.
Guardianships can be terminated when a guardian is removed by court order, either at the guardian’s or a family member’s request, or the court determines that the previously incapacitated person is now competent to make his or her own decisions. A person may regain competency if and when they regain their decision-making capacity or have responded successfully to treatments. Oftentimes, persons under guardianships are unaware of their legal rights and may not understand the legal process involved in terminating the guardianship.
Partner Michael Farhi currently serves as a guardian and says: “It is a serious responsibility to have control over significant parts of another adult’s life. There is a need for extreme patience, an openness and ability to become educated about both medical or mental health issues and the judgment to allow the person as much self-determination as possible under the circumstances.”
Guardianships are rarely terminated due to the involuntary nature of the relationship as well as the widespread control a guardian is granted. It is important for persons both subject to, and seeking conservatorships and guardianships to know their rights and options for termination.
Marissa Kindberg is a third year law student at Rutgers University-Newark, where she is a member of the Rutgers Italian American Law Student Organization and the Women’s Rights Law Reporter