Disability advocates in California have given their blessing to proposed legislation that would curb the power of conservators and promote less restrictive alternatives to conservatorships. Conservatorship abuse gained a national spotlight when singer-songwriter Britney Spears fought to be released from a 13-year conservatorship that allowed her father to have full control over her person and assets. A Los Angeles judge ended the conservatorship in November of last year, and activists have used the momentum from the #FreeBritney campaign to further the organizing work they have done for decades. Disability and elder care activists in California are pushing for legislation that makes it easier for people subject to conservatorships to end them and requires judges to examine less constraining options before granting guardianship.
A conservatorship (often used interchangeably with the term guardianship) is a court-ordered setup where a guardian manages the financial and personal affairs of someone deemed to be unable to do so themselves, usually in cases of old age or mental or physical disability. The typical conservatee is a woman between 76-81 with a low-to-moderate income. Approximately 43% of people diagnosed with an intellectual disability have guardians. While the typical argument for conservatorships is that they protect people who struggle to independently make decisions, disability rights and elder care advocates argue that these systems are often abusive.
In many cases, the individuals under guardianship cannot have a say in who serves as their guardian. Guardians often charge hefty fees, draining the assets they are supposed to protect. Most significantly, guardians can have full control over the lives of the individuals under their conservatorship, making decisions for their wards on medical care, family visits, and all other elements of daily living. If someone wants to end their conservatorship through court, conservators often prevent them from hiring a lawyer. Most conservatorships last until death.
Anti-guardianship activist Marian Kornicki, whose mother was subject to a guardianship held by third-party private lawyers, said that her family lost over a million dollars to court-appointed guardians who availed themselves with exorbitant fees.
“Saying that you’re going to remove someone’s rights in order to protect them doesn’t make any sense,” Kornicki said. “People need support, but you don’t remove their rights to do that.”
Conservatorships have a long history of being used against communities of color. In the early 1900s, large oil and gas reserves were found underneath lands allotted to members of the Osage, Cherokee, Choctaw, Chickasaw, Creek, and Seminole nations. Taking advantage of a federal law that gave jurisdiction over the property of Native American “minors and incompetents” to county probate courts in Oklahoma, lawyers quickly moved to have themselves appointed guardians of Native Americans with lucrative properties. Courts declared Native Americans to be incompetent in most cases where oil was found on their land, and newly appointed conservators eagerly availed themselves with new wealth while depriving their wards of financial control and a basic standard of living.
Conservatorships continue to negatively affect Black, Indigenous, and people of color today. In California cities experiencing gentrification, conservatorships have been used to seize the homes of elderly Black and brown people and sell their assets, draining wealth from families and communities. They have been used to place elderly Black people in subpar facilities and separate interracial couples. Elderly Black people are the most likely to face psychological and financial exploitation, and guardianship may exacerbate these risks. Fans of Star Trek actor Nichelle Nichols have recently been advocating for the star to be released from her conservatorship, which her supporters believe is unneeded and abusive.
One of the major obstacles to tackling abuse in the conservatorship system is a lack of data. Individual states control conservatorships, and most states do not keep track of the number of people under guardianships, their demographics, or allegations of abuse. A 2016 Government Accountability Office report stated that it was unable to determine the extent of elder abuse by guardians due to a lack of basic data.
“That’s something we are making an ask [of] our legislature this session, saying we want to see required public reporting of data that’s relevant to all the involuntary conservatorships,” said Kathy Flaherty, executive director of the Connecticut Legal Rights Project. “Let’s see that data, because there are a lot of theories we have and logical guesses we can make about who is getting subjected to this legal process, but let’s find out.”
Some states have passed laws to reform the conservatorship system. In 2021, Oregon passed a law requiring legal assistance for anyone placed under a guardian. California passed a law increasing scrutiny of conservatorship abuse and allowing people under conservatorship to select their legal representation. But activists and lawyers say there is more to be done.
Jasmine Harris, a law professor at the University of Pennsylvania specializing in disability and antidiscrimination law, said that the law should stop promoting plenary guardianship, where guardians have full control over their ward’s person and estate. She added that judges need to be held accountable and show that they have considered less restrictive options. In addition, people subject to guardianship need to have legal representation.
Kornicki and Flaherty believe the system cannot work as it currently exists, and abolition of the conservatorship system and a reimagining of care is necessary to ensure justice for elderly and disabled individuals. Harris said there is certainly a need to understand conservatorships in terms of the problem that is trying to be solved.
“If it’s about how we provide support to people who have diminished capacity, we have alternatives, we know so much more about people’s capacity, how it’s varied, how it moves over time and is temporal,” Harris said. “We need to go back to the drawing board and think, how would we design the system now, not how can we try to get the system we have now to be the best it can possibly be.”