Legal and Management

How Will #FreeBritney Deal With a 'Ruthless' Probate System? Law Experts Assess

Britney Spears
Denise Truscello/BSLV/Getty Images for Brandcasting, Inc

Britney Spears performs Britney Spears: Piece of Me Remixed. Reimagined. Still iconic. At Planet Hollywood Resort & Casino on February 26, 2016 in Las Vegas, Nevada.

After more than a decade of rumblings that Britney Spears was unhappy with her long-standing conservatorship, on June 23 she told a Los Angeles judge she wants the "abusive" arrangement to end — and she wants out without a psych evaluation. While her conservatorship began after two psychiatric hospitalizations in January 2008, a psychological evaluation isn't required to exit it, according to the Judicial Council of California, the policymaking body for the state courts.

"We're not aware of any statute or case law that requires the petitioner to submit a psychological evaluation in support of a petition to terminate or that requires the court to receive or consider a psychological evaluation before terminating a conservatorship," notes Blaine Corren, a public affairs analyst for the Judicial Council. "In that sense, it's up to the court's discretion. But if the petitioner doesn't submit an evaluation, the court may not find sufficient evidence to grant the petition to terminate."

After Spears gave a lengthy, emotional statement about her desire to end the arrangement, Judge Brenda Penny told Spears' court-appointed lawyer, Samuel D. Ingham III, to file a formal petition. Benny Roshan, chair of Greenberg Glusker's trusts and probate litigation group, says probate code is vague when it comes to termination protocols. (It merely says, "If the court determines that the conservatorship is no longer required or that grounds for establishment of a conservatorship of the person or estate, or both, no longer exist, the court shall make this finding and shall enter judgment terminating the conservatorship accordingly.")

Penny will have wide latitude when it comes to what factors into her decision. "The statute does not specify the type or amount of the evidence required for the court to make [a] determination," notes Corren. Though, in a case where capacity was questioned, "the court might want an updated capacity assessment as the basis for a determination that the conservatee had regained the capacity to exercise the powers on their own behalf."

There really isn't a road map here, as conservatorships are generally intended for elderly individuals who can no longer care for themselves or people with incapacitating and irreversible health or mental conditions. "Someone who's 39 years old and seems to have her life pretty together, why would that person need to be conserved?" Roshan asks. "This has the potential to make some precedent. A lot of the issues that would be relevant to terminating this conservatorship just haven't come up before."

Spears' case has put a spotlight on conservatorships, particularly in California, where critics say abuse is ubiquitous. It could prove helpful to others in similar circumstances, especially private individuals who don't have a legion of fans demanding their freedom and the press keeping the situation under a microscope.

"The probate machine is ruthless with anyone who gets in their way," a prominent attorney who has represented proposed conservatees in two California cases tells THR. The attorney notes that the state even allows a certified professional fiduciary to file a petition for conservatorship against a total stranger — and anyone can become a professional fiduciary by taking eight online courses and passing a test. Even more alarming, the trial to determine if putting someone under a conservatorship is warranted is often as short as 10 minutes, during which a court-appointed attorney gives their two cents — and if mental capacity is an issue, the probate department draws from its roster of doctors for an opinion.

Leslie Salzman, a professor at Cardozo School of Law who specializes in conservatorships, says Spears' case is rife with red flags — starting with "why someone who was performing and appearing in public and making very substantial sums of money never had any rights restored" in the arrangement. Salzman also questions why Spears wasn't able to choose her own lawyer and why her father remained at the helm so long if she was opposed to his appointment.

Roshan says she's experienced first-hand that removing a court-appointed counsel isn't easy. "I've actually looked at replacing a CAC before because the CAC was not listening to the conservatee and found that there isn't any means for another party to do so," she says. "And it is frowned upon because CACs typically wield a lot of influence with the court."

In this case, Roshan says Spears "would absolutely need to make clear to anyone who will listen" that she wants a new attorney. "The generational gap between Britney and her counsel alone could justify new counsel who could advocate for her in a manner that best suits her needs," she says. "If Britney really wants new counsel, and she tells enough people, there is a possibility that Ingham may consider it wise to resign and end on a high note rather than being removed by a court order."

So far, the court docket reflects that Ingham hasn't filed anything on Spears' behalf since the hearing. Her conservatorship is split into two parts, the person and the estate. Many of her stated concerns revolved around the former — the side currently overseen by Jodi Montgomery that includes things involving medical and psychiatric care and her personal life. It's possible she could choose to petition to terminate that portion and leave the side that involves her finances intact. After all, she's worth a reported $60 million, though conservatorship certainly isn't the only option for protecting her wealth.

"It doesn't seem that there was ever any serious consideration of less restrictive alternatives to a conservator," notes Salzman. "It is troubling that she apparently was not informed of her legal right to seek termination or modification of the conservatorship order, and that no legal action was ever taken despite her apparent statements that she wanted to end the conservatorship."

As for Spears' road ahead, if she files a petition to end her conservatorship, all interested persons will have a right to file an opposition. She has indicated that she's fine with proceedings being more private now that she's said her piece, but if she changes her mind, one aspect of the code could make things interesting. "Here's the kicker about probate court," says Roshan. "On matters of conservatorship, you're actually entitled to a jury trial of your peers."

A version of this story first appeared in the June 30 issue of The Hollywood Reporter magazine. Click here to subscribe.