Conservatorship and #FreeBritney – What do our laws say about this in Australia?
On 23 June 2021, Britney Spears appeared in a Los Angeles Court and spoke about her conservatorship.
This conservatorship has allowed Britney’s father to manage her personal and financial affairs since 2008. On 30 June 2021, the court denied Britney’s request to have her father removed as conservator. A key point to note about this case is that Britney didn’t apply to have the conservatorship terminated, she applied to have her father removed as the conservator.
Could this happen in Australia?
Australia does not have ‘conservatorship’ laws, but each Australian State and Territory has their own legislation about guardianship and administration. In WA we have the Guardianship and Administration Act 1990 (“the Act”).
Guardianship is concerned with a person’s lifestyle decisions, such as where they live, work or are educated and also their health and medical decisions.
The State Administrative Tribunal (“SAT”) has the jurisdiction to decide whether a guardianship order should be made. The SAT can make a guardianship order for a person if they are over the age of 18 and:
- are incapable of looking after their own health and safety; or
- are unable to make reasonable judgements in respect of matters relating to their lives; or
- need oversight, care or control to protect their own health and safety, or for the protection of others.
If the SAT decides a person is in need of a guardian, they can either appoint a sole guardian or joint guardians. The SAT may appoint any person to be a guardian, as long as they are over the age of 18 and consent to act as a guardian.
The Act specifies that a guardian must act in the best interests of the person whom they are the guardian of.
The SAT can choose to appoint either a plenary guardian or a limited guardian. A plenary guardian has powers that include, but are not limited to:
- deciding where the represented person lives;
- deciding who the represented person can live with and associate with;
- deciding whether the represented person can work, and if so, what work they should do;
- deciding what, if any, education and/or training the represented person should receive; and
- commence, conduct and settle any legal proceedings on behalf of the represented person.
The Act lists some things that a guardian can’t do on behalf of the represented person, including but not limited to:
- consent to sterilisation;
- make a will or other testamentary disposition; and
- consent to adoption.
If the SAT decides to appoint someone as a limited guardian, then the SAT can limit what the guardian is allowed to do on behalf of the represented person, so they will not have as many powers as a plenary guardian has.
Administration is concerned with a person’s financial affairs and estate.
Much like guardianship orders, the SAT is the body that decides whether an administration order should be made. The SAT can make an administration order for a person who is unable, by reason of mental disability, to make reasonable judgements in respect of matters relating to their estate.
Again, the SAT can appoint a sole administrator or joint administrators. An administrator can sign documents on behalf of the represented person, but they cannot make a will or other testamentary disposition for the represented person.
An administrator is allowed to employ a lawyer, accountant, stockbroker or other agent to do anything required to administer the represented person’s estate, such as maintain and audit bank accounts.
An administrator may be required to provide accounts to the public trustee, who has the authority to examine them. If the public trustee deems that there has a been a loss or diminution of the represented person’s estate, the administrator will be liable for that loss or diminution.
How long does a guardianship or administration order last?
The SAT must review all guardianship and administration orders no later than 5 years after they are made.
Other circumstances in which a review must occur include, but are not limited to:
- the death of the guardian or administrator;
- a request by the guardian or administrator to be discharged from their role; or
- a finding that the guardian or administrator is guilty of neglect or misconduct.
Any person can apply for a review of a guardianship or administration order at any time, but the SAT does not have to accept that application.
At a review, the SAT has the authority to amend or revoke a guardianship or administration order.
Is this the same as conservatorship?
The powers that are provided under the conservatorship laws that exist in the USA are similar to the powers granted through the guardianship and administration laws in WA. Where the two jurisdictions differ is the test to be applied to determine if an order is made. There is no way that if Britney Spears lived in Perth the law here would allow for her to be subject to a guardianship or administration order.
Our guardianship laws allow the SAT to appoint someone to determine the lifestyle and personal choices of someone who is deemed not to have the ability to make those decisions for themselves.
Similarly, our administration laws allow the SAT to appoint a person to manage the financial affairs of someone who is deemed to not have the requisite capacity.
About the authors
This article has been co-authored by Chelsea McNeill and Steven Brown. Chelsea is a Law Graduate from Murdoch University. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.