Why Britney Can't Get Out of Her Conservatorship (ep. 164)

July 8, 2021
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In honor of Disability Pride Month, we’re devoting a few episodes to disability rights, starting with a look at conservatorships. Conservatorships are a court-sanctioned way to strip people with disabilities of their civil liberties. The system of conservatorships has gained media attention through the case of Britney Spears.

What many have learned through Britney’s story is that under conservatorships, you often can’t spend your own money; you can’t choose your own doctors; you can’t control your medical care. You can’t even choose where you live or whom you spend your time with. 

And while Britney’s case has catapulted conservatorship into public consciousness, Britney’s case is not the exception. Over one million other Americans with disabilities live under some form of conservatorship or guardianship. 

Zoe Brennan-Krohn, staff attorney with the ACLU’s Disability Rights Project, joins us to discuss the implications of conservatorship, for Britney and for many others. 

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MOLLY KAPLAN
From the ACLU, this is At Liberty. I’m Molly Kaplan, your host.

Welcome to July, also known as disability pride month. In honor of the month, we’re devoting a few episodes to disability rights, starting today with a look at conservatorships. Conservatorships are a court-sanctioned way to strip people with disabilities of their civil liberties. The system of conservatorships has gained media attention through the case of Britney Spears.

What many have learned through Britney’s case is that under conservatorships, you often can’t spend your own money; you can’t choose your own doctors; you can’t control your medical care. You can’t even choose where you live or whom you spend your time with.

And while Britney’s case has catapulted conservatorship into public consciousness, Britney’s case is not the exception. Over one million other Americans with disabilities live under some form of conservatorship or guardianship.

Joining us to discuss the implications of conservatorship, for Britney and for many others, is Zoe Brennan-Krohn, staff attorney with the ACLU’s Disability Rights Project.

Zoe, thank you for joining At Liberty.

ZOE BRENNAN-KROHN
Thanks for having me.

MOLLY
[00:01:20] I want to start with Britney's story. On June 23rd of this year, Britney Spears appeared in front of Judge Brenda Penny via zoom, to speak out against her 13 year conservatorship. And listening to what she's been through over the years, it's really hard to understand how this practice is legal. Can you explain what a legal conservatorship is and how it's used?

ZOE
[00:01:45]
Sure. So a conservatorship is a system where a court, a judge, determines that a person is not able to make their own decisions, direct their own lives, because of a disability or a perceived disability. And because of that, the judge takes away the person's right to make their own decisions and gives that right to another person who's called the conservator or a guardian. What we are calling a conservatorship in Britney's case is referred to as a guardianship in a lot of the rest of the country. And so once you're under one of these, you really don't have your own autonomy. You kind of don't have your own legal personhood anymore. It's been referred to as a civil death to be placed under conservatorship or guardianship because those court decisions about how you spend your money, where you live, what medical care you get, your reproductive freedom, all of those are taken from you and are given to another person. And that that often lasts for a very long time.

MOLLY
[00:02:56] The leaked audio from Britney's testimony revealed some really disturbing details about her conservatorship and how it operates in practice. And I want to play some of it for you and just get your reaction to it.

BRITNEY SPEARS
[3:08] I packed my bags and went to that place. I worked seven days a week, no days off — which in California, the only similar thing to this is called sex trafficking, making anyone work — work against their will. Taking all their possessions away — credit card, cash, phone, passport card — and placing them in a home where they — they work with the people who live with them. They all lived in the house with me, the nurses, the 24/7 security. There — there was one chef that came there and cooked for me daily during the weekdays. They watched me change every day, naked. Morning, noon and night. My body — I had no privacy door for my — for my room. I gave eight gallons of blood a week.

MOLLY
Zoe when you hear this, What is your response to this testimony? Because to me, it sounds like this conservatorship, while it's meant to be in theory of protection, is itself an instrument of control and abuse.

ZOE
[00:03:59] I was shocked by the testimony, although I also know that this is very familiar in a lot of ways. The concept of being under a conservatorship is inherently really invasive and conservators do have this this really broad power in most cases to make decisions, to require a person to live in a certain place, to participate in certain things, to work, to spend their money in certain ways, to get medical care or take medications. And one of the real problems with conservatorship in general is that it's very often perceived as sort of a benign system and a neutral system. And It's this concept that it's a sort of protective mechanism. And I think a lot of that comes from very deep seated paternalism towards people with disabilities and not viewing people with disabilities as whole people or viewing people with disabilities as perpetual children. And I think part of the real shock of hearing this coming from Britney Spears is that she is undoubtedly extraordinarily talented, extraordinarily hardworking, wealthy, very able to succeed in a capitalist society. She is not someone who is perceived by most people as having disabilities. And we have no idea whether she has disabilities or not. I don't know whether she perceives herself as having a disability, but whether or not she does, she is in this system where she doesn't have any choice about these things. But that kind of harm is happening really all the time in this country to more than a million people

MOLLY
In particular, Britney described being non consensually put on certain medications, like lithium and also forced to stay on birth control. Can you explain how common that level of control over someone's physical body is in a conservatorship?

ZOE
[00:06:08] One of the problems with conservatorship and guardianship is that we have almost no data about it. So we don't even know how many people are in conservatorship or guardianships. We have estimates. We don't know what the numbers are. How often is this happening? Who is it happening to? How long is this happening to people? There's a really extraordinary and vibrant and recent and terrible history of taking away the reproductive freedom of people with disabilities as a form of eugenics. And so all of which is to say these are really invasive, really major choices to be making about another person and also choices that come with a very long and very terrible history. In most cases, a conservatorship or a guardianship is what's called plenary, which means that the conservator or the guardian has pretty broad control. So there are probably many, or most people under conservatorships or guardianships, could have these choices made by someone else. The conservator or the guardian has the power to make these kinds of choices, including about reproductive freedom, including about medication. We have no idea how often that's happening involuntarily. And we hope it's not happening all the time. But it certainly does happen.

MOLLY
[00:07:34] And I do want to come back to the history a little bit more. But first, I want to play one more passage from Britney's testimony. It was a passage that was actually really confusing to me. And she says —

BRITNEY
[00:07:47] “There should be no — I shouldn't be in a conservatorship if I can work and provide money and work for myself and pay other people.”

MOLLY
[00:07:52] So Britney was sent out to work months after being placed under conservatorship. I'm really confused about why she would be under conservatorship if she was deemed fit both to earn money and money, by the way, that is going to in part ro her conservators. But then also she was able to get custody of her children back at a certain point.

ZOE
[00:08:16]
So we don't know what the court is looking at, we don't know what the medical evaluations are saying. I know she referenced in her testimony that she has been subjected to a lot of evaluations of various types. But you're absolutely right that, you know, a conservatorship is supposed to be really used as the last resort. If there's no other system, no other mechanism that a person can use voluntarily to get the support they need to live their own life. And it seems very much like. Britney's life, her ability to work, her parenting, her talent and her skill, that those are all inconsistent with a finding that there's nothing short of this incredibly invasive system that could allow her to meet her basic needs. And what often happens and what might be happening here is that because there's this perception of conservatorships as benevolent, that if someone is doing really well under a conservatorship that's actually used against them, that if you show up at court and you say, look, I am parenting my kids, I have a residency in Vegas, I'm making huge amounts of money, things are going great. Or for people who aren't Britney Spears, you know, you show up and you say, I'm doing great. I go to my job every day. I cook my own meals, whatever it is, that courts very often use that as a reason to keep the conservatorship in place and to say, well, this is great. Why mess with a good thing? And I think that really comes from this real complacency with the idea of taking away the rights of a person because they have a disability and the sort of stereotypes and and paternalism that that comes from.

MOLLY
Well, the really disturbing piece here is that she's not doing great. I mean, she said herself that she wants to be free of this, that her lack of freedom is actually harming her. So even if that is the takeaway that, like, she's been thriving the last 13 years, she herself said she's not right.

ZOE
[00:10:25] Right. And it's this real catch-22 that if you're not doing well, then for sure that will be used against you. Look at this. You're depressed. You're struggling. No way you could live by yourself and or no way you could get out of this conservatorship. And I think one of the things that was striking about her, her saying that is, is this reality that I see a lot in speaking to people: that the fact of having your rights taken away is really harmful. There are absolutely instances of abusive conservatorships and guardianships. And, but even apart from that, even in the many cases where everyone is really acting to support the person, really lovingly trying to support a person with disabilities —which is true in a lot of cases — there's still a really big harm in having the state say you don't have your own rights anymore, you don't exist as a legal being anymore. We don't think you're able to be an autonomous person in the world and that really harms people. And I heard some of what Britney was saying as alluding to that, that it's a real harm to have that message given to you in theory and in practice over and over for years.

MOLLY
I'm curious Zoe, is there ever a good reason in your eyes for someone to be placed under a conservatorship? It sounds like it can be a form of protection. Do you think it is?

ZOE
[00:11:52] I think there are instances where it really does seem like a conservatorship or a guardianship is, at least temporarily, the only option to support a person, but I think those are very, very rare. And I think very often conservatorship and guardianship are really used as a first resort rather than a last resort. And there's a really wide range of alternatives to conservatorship and guardianship that are very often overlooked. So there's often this sort of dichotomy that, you know, if you can't do everything by yourself, we're going to assume you can't do anything even with support. And in fact, there are many, many ways that people with and without disabilities can and do get support to live their own self directed lives. And those are very often skipped over in pursuit of a conservatorship or guardianship in a very harmful way.

MOLLY
[00:12:58] Well, it seems like another piece of the conservatorship that is problematic is not just the system itself, but also how long it can last and how hard it is to get out of it. I mean, I think the Britney case here is a really interesting one, because she has this huge fan following. She has a documentary film about her and she has more resources than I assume most people have under a conservatorship. And she said that she didn't even know that she could petition to get out of it and she's been under it for 13 years. So can you tell us how hard it is to get out of it and how long they normally last?

ZOE
[00:13:35] I think because there isn't data, we don't know the average length of a conservatorship, that's the kind of thing that would be very, very important to know. That's really critical data. That's really shocking that we don't know, that no one has that information. But, yes, it's very common for conservatorships to last a long time. Because many disabilities last a long time, and once you have this sort of concept that if a person is disabled, then they'll never be able to live their own lives, then you end up in a situation where conservatorships last forever. It's very hard to get out of a conservatorship because once you're in it, the you don't have your own power, your own authority to sign a contract, to have access to the Internet maybe. Even procedurally or logistically, like how you would figure out how to get in front of the judge that you wanted to complain about your conservatorship to if your conservator isn't on board with this is a Herculean task for most people. There is a real presumption in favor of maintaining conservatorship or guardianship, unless there's something really extraordinary that the person can show of why it should end.

MOLLY
Is that because judges don't want it on their watch if something goes wrong?

ZOE
[00:15:05] I think that's part of it. I think it's this idea that it's benign. And so why take that risk? And there is yes, this fear that someone might make a bad decision if they got out of a conservatorship or guardianship. People without disabilities make bad choices or questionable choices or choices their parents don't think are the right choices all the time. And that's something that we think of as really core to what it means to be an adult, to be a human and to learn from, and to build your identity around those experiences, and that all gets gets taken away.

MOLLY
[00:15:43] And it feels like there's a softer catch-22 here, which is if you strip somebody of their autonomy and their ability to make choices, you sort of lose the fluency of how to make choices and basic executive functions. And I'm curious if that also makes it really hard to get out of conservatorship?

ZOE
[00:16:03] Yeah, I think that's exactly right, that we learn and people learn how to make choices and people learn the consequences of choices by making choices. And that gets lost. If you can't make your own choices, then you don't have experience with how to make your own choices. And we actually see this a lot with with young adults with intellectual and developmental disabilities who very often are told or their families are told by schools that the families have to get a conservatorship or a guardianship as soon as the child reaches 18. That they have to get this if the family wants to keep going to supporting the child in IEP meetings, special education meetings, things like that.

MOLLY
I mean, it's called the school to guardianship pipeline. And usually it's the school to prison pipeline is the one I'm more familiar with. But I mean, if they're terming it, it's happening a lot, right?

ZOE
[00:16:58] Yes, exactly. The school to guardianship pipeline. And it's exactly that situation where people with intellectual and developmental disabilities are assessed by some professional and then by a judge at age 18. And the judge is trying to figure out, can you do everything you need to do to live as an adult? And I think many of us would cringe to think about a judge asking that of us when we were 18. You can still be over 18 and call your mom and ask make a grocery list, or is it important that I pay my electricity bill? Like those are all things that people without disabilities can do routinely while maintaining their rights. People have to learn things and that it absolutely can become self-fulfilling to say, you know, I don't think you'll ever be able to do this and I won't teach you and then they won't ever be able to do it.

MOLLY
I do also want to come back to some of the history that you had alluded to earlier. I think many are learning about conservatorships through Britney Spears’s case. But there's a long history of government sanctioned control over people with disabilities. Where do we find the early roots of conservatorship or that kind of state sanctioned control?

ZOE
[00:18:16] So, there's been a long and fraught and violent history in our country and in a lot of countries of fear of people with disabilities and of, you know, sort of sometimes well-intentioned attempts to help people with disabilities and sometimes not well-intentioned attempts to simply get rid of them. And I think the early 20th century was a real high point of express eugenics, which targeted people with disabilities, targeted people of color, targeted poor people.

MOLLY
And was reflected in that Supreme Court case, Buck v Bell.

ZOE
[00:19:01] Right. And that case was was upholding a state law that allowed for the forced sterilization of people who were perceived to have disabilities on the theory that people with disabilities living in society would be a drain on society, would become criminals, would need things from society, and that it would be better to prevent them from even being born in the first place and. And it's just such a disgusting opinion in so many ways. The plaintiff in that case actually did not have a disability. She was poor and she was perceived as and identified by the family she was working with as a servant, that they said that she was disabled. She had been raped, and that's actually why she was, how she became pregnant with this, the third generation of what they called at the time imbeciles. So factually, she did not actually have a disability. She was poor. But of course, there are many people who do have disabilities. It's sort of this idea that many people are perceived as being disabled who aren't. And also many people, in fact, have disabilities. To write them off, to just be so blatant about the idea that society would be better off without you is really stunning. One of the things that conservatorship and guardianship today that's really striking about it is that we don't use those phrases anymore. We're not so explicit about what we think of the value of people with disabilities. But sometimes in practice, it can be not that far off from that. And so there's a way in which we've sort of cleaned up how we talk about choices about disabled people's lives. And, you know, we cloak things in this concept of protecting people. But there's still a huge amount of unchecked control by someone without a disability who's saying what they think is better for someone with a disability and able to do that with almost no oversight. And in some ways, it doesn't look so different from what the court was talking about in Buck v. Bell.

MOLLY
Is forced sterilization still an issue today?

ZOE
[00:21:19] So forced sterilization is still legal in many states. In California, there's a specific, separate process you have to go through. It's not a power that comes with, comes sort of automatically with having a conservatorship. It was legal in California, I believe, until 1979. There's actually currently a reparations bill going through the California legislature to provide reparations for survivors of forced sterilization. There are many of them who are still alive today. This is not ancient history who were victims of forced sterilization. And today, even though the permit for sterilization is in sort of a different category, to come back to Britney Spears, she has she reports that she has an IUD, which is a very, very effective form of birth control. And if a conservator can force a person to have an IUD through the remainder of their reproductive years, you know, I think you have to ask, is that functionally really that much different from permanent sterilization?

MOLLY
Do you think that that's a theme in disability rights, that the laws are improving, but in practice, we're still behind?

ZOE
[00:22:38] Definitely in some areas. Yeah, I do think that the Americans with Disabilities Act is really quite an amazing law. It was passed in 1990. July is the anniversary of the passage of the ADA. And one of the really cool and unusual things about the ADA as a civil rights law is that it requires society to make changes to create equity for people with disabilities. It's not enough to just say, well, you know, you can't close the door on a person with disabilities. You might actually have to build a ramp so that a person with disabilities can get into the door literally and figuratively. And that's very different from how a lot of other civil rights laws operate. It really has a sort of equity lens. But you're absolutely right that in practice there is so far still to go. And there are so many presumptions and stereotypes that still exist around people with disabilities, especially people with mental disabilities, psychiatric and intellectual and developmental disabilities, and especially people with disabilities who are also marginalized in other ways. BIPOC people with disabilities, poor people with disabilities, people with disabilities in the criminal legal system, queer people with disabilities.

MOLLY
[00:24:00] You mentioned that there has been a lot of progress in the space of disability rights. You mentioned the ADA. There's also the 1999 Supreme Court case that followed the ADA, which said that people with mental health disabilities had the right to live in a community rather than institutions. Why haven't conservatorships come under similar judicial scrutiny? And do you think that Britney's case could actually change that?

ZOE
[00:24:25] Conservatorships and guardianships are state by state systems, every state has different laws around it. Disability rights advocates and lawyers have been concerned about conservatorships and guardianships for a very long time, this isn't new to us. But you're right, this has not gotten the kind of, you know, captured people's attention in the way that, for example, large asylums and institutions and the horrors of those institutions really captured people's attention at the end of the 20th century. And so I think it's partly that it's very technical. There are often very sort of complicated individual cases. But I am really hopeful that the conversation and the light that's being shed on these issues by Britney Spears’ case will help.move the public conversation and already is helping to move the public conversation to more awareness of what this looks like as a systemic issue. It's not that it's weird that Britney Spears got caught up in this totally okay institution, just that she shouldn't be in it. It's in fact that what's happening to her looks a lot like what's happening to a lot of people. And if she can get caught up in it, you can only imagine how trapped people who don't have the wealth, the privilege, the fame, the attention that she has.

MOLLY
There are encouraging signs like Senator Elizabeth Warren and others are already requesting more data, which you referenced is a huge problem that we just don't know a lot about what it's like to be under these conservatorships for people who aren't as famous as Britney.

ZOE
[00:26:06] Yeah, I think Senator Warren's letter is really promising. As I said before, it highlights that we don't have data on this. And the data on conservatorships and guardianships is an estimate. And one of the other really exciting things about that letter is that it specifically asks for data on what other alternatives people in conservatorships and guardianships have tried. What's the evidence? What's the data around people who are using supported decision making, which is a really exciting alternative to conservatorship and guardianship. And the letter actually uses that phrase and gives credibility to the importance of figuring out before you get into a guardianship or a conservatorship, what else have you tried? Why are you at the point where you're saying we have to use this last resort option and to really, you know, I think that that's a really promising step to hold people and systems and states to the idea that this should be a last resort. But to really say, okay, what's the data on what else you've done that got you to this point where you say we absolutely need the conservatorship and guardianship.

MOLLY
Can you say more about what supported decision making is as a tool and whether states, some states are already using it better than others?

ZOE
[00:27:22] Yeah, supportive decision-making is sort of an umbrella term for the process that pretty much everyone with and without disabilities is using all the time where we use and rely on people and systems that we choose to help us make our own decisions and live our own lives. So for people with disabilities, it's often a sort of more formalized system, because they have to protect themselves against guardianship and conservatorship, of identifying what are the supports that I want and that I use to get me to the point of being able to make my own decisions. So it can be as simple as like iPhones or smartphones are an incredible tool for supported of decision making and for people with disabilities in general, because, you know, having an app on your phone that sends you a reminder or an alarm on your phone, that sends you a reminder every night at 9:30 to check to make sure the door is locked. Like if that gets you to the point of having the safety that before you go to bed, your door is locked, you need a conservator to be doing that for you. So there's a lot of different steps that people go through in making decisions. You need to understand what the decision is. You need to understand what the different options are. You need to think through sort of what are the pros and cons of this. And then you need to sort of apply all of that to your background, principles and views about the world and who are the people you want to help you through that process? And what are the types of help that you want from them? Do you want them to sit with you and help you make a list of pros and cons before you decide where you're going to live? Do you want them to sort of collaborate with you to come up with a budget for the week and a grocery list? It's very, very expansive what it can encompass, but it's really a way of systematizing what everyone is doing in their lives to live independently. None of us are living independently, truly independently, and nor do we want to be. There are some states that explicitly have supported decision making in their legislature as an alternative to guardianship or conservatorship. But even in states where it's not in the law, most states say that a guardianship or a conservatorship should only be implemented if it's the least restrictive alternative and by definition supported decision making, which is voluntary, which allows a person to keep their own civil rights, is less restrictive. So it doesn't need to be in the state law for it to be something that people use. And many people in California and across the country do use supported decision making. But having that sort of recognition of senators saying how's this going? What's the data on this? Are you trying this in your courtroom? Are you asking people if they're trying it before you impose conservatorships? Is a very powerful message of how important these alternatives are.

MOLLY
I'm curious for those of us who aren't Elizabeth Warren and can't ask for more data in such an official way, what can we do? And maybe in particular people who are really engaged because they heard about Britney's case, what can be done to address the greater system of ableism?

ZOE
[00:30:47] So I think educating yourself is a really important piece of it. I think there's a huge amount of ableism, internalized ableism that all of us, myself included, have absorbed in our atmosphere and in our society. And I think there's so much to be learned about how people with disabilities identify. You know, think about themselves, talk about themselves, want others like what they want in terms of support, in terms of how people interact with them. And social media is just such a great way to sponge up all of the diverse and complicated views that people have about disability and disability justice. And I think following and staying engaged in these issues, you know, maybe the Britney story will start to fade away. But but recognizing that this is a part of a bigger systemic issue and trying to sort of keep thinking about what are the presumptions that we're using and trying to dismantle those and learn about what does the disabled community, which has many views and is not a monolith, you know, want and what are they talking about and and what are they they need

MOLLY
Well, Zoe, thank you so much for joining us and explaining this system and beyond conservatorship, so appreciative of you.

ZOE
Thank you. It's great to talk to you.

MOLLY
Thanks so much for listening. If you want to learn more about this topic, we have a whole library of resources on our website aclu.org about conservatorship and supported decision making. And as always please be sure to subscribe to At Liberty wherever you get your podcasts and rate and review the show. We always appreciate the feedback. Until next week, stay strong.

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