In this op-ed, attorney Haley Moss explores why disability advocates need to keep pushing for conservatorship reform beyond #FreeBritney
When Britney Spears was freed from her conservatorship on November 12, 2021, supporters of the #FreeBritney movement, a collective of fans who had rallied for Spears’s freedom, celebrated the victory for the pop star. However, disability rights advocates and activists immediately feared that the fervor could fade and the real goal may lose momentum following Spears’s release: guardianship and conservatorship reform.
Spears catapulted the issue of conservatorship into the public sphere as she unveiled the harrowing details of the arrangement she was under in public testimony. She talked about her inability to marry (she has since married her then-fiancé, Sam Asghari), receiving an unwanted IUD when she wants to have more children, and passionately denounced her father’s control throughout her 13-year conservatorship following very public mental health crises related to bipolar disorder. While it didn’t always enter the conversation in relation to Spears, conservatorship has long been a disability rights issue. Spears’s case was certainly a win, but many disability rights advocates worried that the rights of other disabled people who were not nearly as famous or wealthy as Spears would fade out of the spotlight, perhaps leading to losing some of the ground the reform movement had gained.
To counter this fear, disabled activists brought attention to the issues with #NotJustBritney during and after the end of the conservatorship — but fanfare and passion surrounding the issue has seemingly died down. While many fans didn’t advocate beyond Britney’s conservatorship, others involved in the #FreeBritney movement believed it was time to pivot their focus onto the conservatorship system as a whole once they were fully exposed to the injustices surrounding it. While Britney is rebuilding her life and continually faces criticism over her social media posts, many other people with disabilities are still stuck in the conservatorship and guardianship system with little fanfare or public outcry. On the one year anniversary of Spears’s release from her conservatorship, it’s time we pivot our focus away from a famous, wealthy, white woman with a large fan base and platform, and onto the people still suffering, who don’t have the benefit of public outcry to help change their situation.
Conservatorships and guardianships — which are not necessarily interchangeable terms, but often are used in similar ways — are the result of legal proceedings in which a judge appoints a third-party to make decisions on behalf of someone else. The two systems are defined depending on where you live, but generally, a conservator is often in charge of financial decisions, while a guardian is often in control of personal decisions — though in some states, they are one in the same. The arrangements are particularly difficult to end and can lead to the loss of a wide variety of civil rights.
“In the disability community, [guardianship] is referred to as basically ‘civil death’,” explains Olivia Babis, a Senior Public Policy Analyst at Disability Rights Florida. “You are kind of property that someone else acts on, and you don’t exist as a person making your own decisions.”
“Guardianship is based on the belief that certain disabled people are incapable of making decisions for themselves,” explains Robyn Powell, Ph.D, JD, an Associate Law Professor at the University of Oklahoma College of Law whose work focuses on reproductive justice for disabled people. That belief and incapacity is on full display in the school to guardianship pipeline in Florida, according to Babis. “Schools are pushing guardianship on students and telling parents if they want to stay involved in their child’s education after turning 18, they should seek guardianship and don’t share other ways they can still stay involved.”
An estimated 1.5 million people are under guardianship, according to the AARP, though numbers are difficult to track due to the private and confidential nature of most guardianship proceedings. Some estimates posit there may be as many as 3 million adults under one of these arrangements.
Activists, attorneys, politicians, and people with disabilities alike are advocating for less restrictive alternatives to guardianship and conservatorship. There is no federal oversight as proceedings and guardianship laws are governed by state laws. Accounts of abuse in these arrangements are horrifying, though there is a lack of concrete data on how common it is, likely due to the confidentiality of the proceedings and lack of access to justice that wards may have.
There are already several legal alternatives that are less restrictive than guardianships or conservatorships. The least restrictive, supported-decision making, allows someone with a disability to enter an agreement that details what they need support with and who may assist. The National Council on Disability recommended alternatives to guardianship in its 2018 report, saying “guardianship orders impact the very decisions that define people as human beings, and thus have significant impact on the daily lives of people subject to them.” The report cited research that found the loss of the ability to make one’s own decisions results in negative outcomes. But these alternatives aren't universal. Currently, 17 states and the District of Columbia have supported-decision making laws.
Last year, Florida failed to pass a bill that would have instituted a process toward supported decision making. But, in July, Gov. Kathy Hochul of New York signed a supported-decision making bill into law following the anniversary of the Americans with Disabilities Act. Shortly after on September 30, Gov. Gavin Newsom of California signed a supported-decision making bill into law, making it easier to end conservatorships in the future as well as provide for other reform.
Still, some say supported decision making being available isn’t enough.“Even when judges must consider less restrictive alternatives, they do not always do so. Procedural due process issues are incredibly common. I have seen cases where a guardian was appointed without a judge even so much as communicating with the disabled person,” Marissa Ditkowsky, a staff attorney at Tzedek DC who leads their disabilities project, says. “The stopgaps in place to protect disabled people from these abuses, and the thresholds in place required to demonstrate that a guardianship is necessary, are not sufficient.”
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Calls to abolish guardianship largely go unmet. Abolishing guardianship entirely, however, is intertwined with other forms of justice. “I hope that young people will include issues around self-determination for disabled people in the ongoing fight for reproductive justice. Specifically, reproductive justice efforts must include abolishing guardianship and requiring states to adopt less restrictive alternatives, such as supported decision-making,” says Dr. Powell.
While many have seem to have moved on from the cause of guardianship and conservatorship after Spears’s was dissolved, Dr. Powell thinks there is hope. “[Spears’] case elevated awareness of guardianship issues,” she says. “Accordingly, I have seen greater interest in these issues. Even my students now know about guardianship before we discuss it in class.”
One year out from Spears’s plight, we have to take that awareness and turn it into action, and actual reform. We can’t stop now.
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