Britney Spears is finally free after a Los Angeles judge terminated the court-ordered conservatorship on Friday 12 November that controlled her life, career, and finances for almost 14 years.

The conservatorship was put in place following Britney's public breakdown in 2008 and was spearheaded by her father Jamie Spears. What began as a temporary management of Britney's affairs whilst she was battling mental health issues, turned into Britney handing control over her own life to her own father.

In the United States, a conservatorship is when a court appoints a guardian to manage an individuals' financial affairs or even their daily life, due to either old age or physical/mental limitations. Back home in NSW, a similar power rests with the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) who can appoint guardians and financial managers in respect of an individual.

The #FreeBritney movement has caused people to turn their mind for the first time to what exactly a conservatorship is, but also what it means to lack the capacity to control your own affairs.

This begs the question; what happens if you lack the requisite mental capacity to look after your own legal or financial affairs or even your own health and wellbeing and how to avoid an independent body is called in to appoint someone to look after you.

The answer is simple. It is extremely important to ensure that you have appropriate estate planning documents in place that appoint another person or persons who you trust to assist and carry out these roles for you. These documents are commonly referred to as Powers of Attorney and Appointment of Enduring Guardian documents.

What is a Power of Attorney?

An Enduring Power of Attorney is a legal document that authorises your 'attorney' (this may be your spouse, trusted family member, friend, or professional adviser) to manage your financial affairs, in the event of an unforeseen accident or severe incapacity.  It is an important part of your estate planning and helps ensure your financial future is looked after.

An attorney can usually access bank accounts to withdraw and deposit funds, pay bills from your account, deal with other assets such as shares, selling property and other investments.  A key responsibility of your attorney is they act in your best interest.

A Power of Attorney is not to be mistaken for your Will, which only operates upon your death.  An Enduring Power of Attorney ensures you have someone to assist in the management of your financial affairs during your lifetime if the need arises.

What is an Appointment of Enduring Guardian?

An Enduring Guardianship allows you to appoint a 'guardian' to make healthcare decisions, give consent for your medical treatment and make lifestyle decisions in the event you cannot legally make these decisions for yourself because you lack capacity.

Your guardian can authorise:

  • healthcare decisions
  • consent for medical and dental treatment, and
  • lifestyle decisions such as when you live and what personal services you receive (such as in-home nurse)

You may include directions to your guardian on your decisions in relation to 'life support' and 'do not resuscitate'.  Your guardian will confer with your medical team and make the best decision for you, as they believe your wish would be.

What happens if you don't have these documents in place?

If you have lost capacity, and you do not have a valid Power of Attorney or Enduring Guardianship in place, then it is too late to prepare these documents. Someone in your family or someone close to you will need to apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to be granted power over your legal and financial affairs and health affairs.

NCAT has a process to determine the most appropriate person to manage your affairs, which can be an expensive and time-consuming process for your family. They may decide to appoint a natural person, such as a family member or they may appoint a government body such as the NSW Trustee & Guardian. It is important to note that the cost of government administration can be significant.

What now?

Loss of capacity can happen at any time and the unforeseen can happen. It is too late once you lose capacity so it is important that every adult should have an Enduring Power of Attorney and Appointment of Enduring Guardian in place to reduce the stress and complexities that may arise later for you and your loved ones.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.