Joe Brophy, solicitor in the Contested Wills, Trusts and Estates team, discusses the process to discharge a Property and Affairs Deputy and the process that would be followed had Britney Spears’s case been heard in the Court of Protection of England and Wales.
Recently, it has been difficult to not draw comparisons between high profile U.S. cases and our UK equivalent; Johnny Depp v Amber Heard vs Coleen Rooney v Rebekah Vardy (aka the “Wagatha Christie” case) being an obvious example.
It is also now over a year since Britney Spears formally commenced legal proceedings in the U.S. to bring an end to the Conservatorship granting her father control of her property and financial affairs and ‘for her as a person’ . Her application was ultimately successful and her Conservatorship (the English and Welsh equivalent of a deputyship) was officially terminated in November 2021.
Similarly to a deputyship, a Conservatorship can be granted by the U.S. equivalent Court of Protection to the ‘Conservator’ for either health and welfare or property and affairs, or both. It is also a requirement to show that the person the Conservatorship is designed to protect lacks the capacity to make a U.S. power of attorney.
But what would have happened had Britney Spears been subject to the English and Welsh ‘equivalent’ deputyship order?
Firstly, and from a non-legal perspective, it strikes me that the media attention and general coverage about the issue would be far more reserved and refined here than it was in Los Angeles. The recent Court of Protection case of Re TH; Brighton and Hove City Council and others v British Broadcasting Corp and another is one of only a handful examples in which the Court of Protection has permitted the identification of the protected party (known commonly as “P”). You seldom hear of cases in England and Wales relating to celebrities and any cases that do attract media attention will almost always hide P’s identity.
But perhaps more significantly, would such a high-value property and affairs dispute even require a hearing in our English and Welsh equivalent Court of Protection? It is perhaps worth answering this in two: covering the likely outcome if Britney did have capacity and the outcome if she did not.
Likely Court of Protection outcome if Britney had capacity
If Britney had capacity (which it was held she did in respect of bringing her application in the U.S.), the short answer is, likely, no. If it were tested here, the starting point is: Does Britney have the requisite mental capacity to manage her property and affairs?
If yes, a simple application to the Court of Protection together with a medical professional’s opinion that Britney had the requisite capacity would be all that was required. Subject to any doubts about her capacity, the application would likely be heard on the papers alone and without the need for a hearing: Britney’s father’s control dismissed with an order that he handover control smoothly and for Britney to regain control of her own finances forthwith.
After that, of course, should she wish so to do, she could also appoint an attorney to assist her with her finances while also limiting the control of her chosen attorney and reserving the right to revoke such control at any time.
Likely Court of Protection outcome if Britney lacked capacity
Unless somebody brought the application to dismiss her father’s deputyship on her behalf, there would be little else Britney could do. Given her wide following and the views of various other family members or those close to Britney, however, such an application would perhaps be (and was) inevitable.
Presuming the application was brought, the starting point would now be: Is the application contested, and is it in Britney Spears’ best interests for her father to continue to act as her deputy or should somebody else be appointed?
If there was no objection to the application, the court could still appoint another deputy without the need for a hearing, on the papers alone, if it were satisfied with the proposed replacement deputy.
If there were an objection by Britney’s father, then unless his management of Britney’s affairs was shown to be close to exemplary or that he only required minor additional guidance to ensure he was acting in Britney’s best interests moving forward, the Court of Protection would very likely revoke his deputyship and appoint an independent third-party deputy in his place.
Incidentally, Britney initially raised her objection to her father’s appointment shortly after it was granted in 2008. However, she was found not to have the relevant capacity to appoint her own attorney and the U.S. court instead ordered that an independent third party represent Britney along with her father. This is also a realistic outcome here in England and Wales, subject to whether any financial abuse by her deputy could be proven and, if so, an independent deputy appointed altogether with the abusive deputy dismissed.
By 2021, Britney’s father was in control of her affairs for over 13 years, by which time various accusations were made about the management of her financial affairs for which her father and those who assisted him would be ultimately responsible; insufficient weekly allowances, the questionable use of her accounts and Conservatorship costs paid to her father, to name a few.
Initially, Britney’s father refused to relinquish his role as her Conservator and, even after agreeing to step down, continued to drag his feet before committing. In England and Wales, when there is a dispute concerning the management of P’s affairs among family members, the inevitable outcome is the appointment of an independent third party, agreed or otherwise.
The Court of Protection’s understandable reluctance to consistently hear applications to dismiss P’s deputies is also worth noting. Such applications have significant cost implications to P whose financial management requires consistency; it is not in her best interests for a merry go round of deputies to be appointed. I recently wrote a blog about the case of Kambli (as property and affairs deputy for MBR) v The Public Guardian in which HHJ Hilder expressed her concern to the changing of P’s deputy several times over a number of years.
Regardless as to whether an application was made, here in England and Wales, a deputy is required to produce a thorough and comprehensive annual report of their dealings of P’s affairs; not only to justify a protected party’s expenditure to the penny (you cannot complete the report until outgoings match income), but also his own costs.
It is likely that the Office of the Public Guardian (the OPG), the government body that ensures the protection of those who lack capacity, would quickly query any inaccuracies or the above accusations (if proven or showing in that person’s accounts).
Britney’s lawyers have recently confirmed that they will be seeking to recover some of the millions spent during her Conservatorship. It there are merits to these proceedings and some financial abuse can be shown, it is more than likely the OPG would have picked this up as part of their annual supervision. In which case, it would be highly likely that her father’s control would have been revoked much earlier and on Britney’s behalf, negating the requirement for Britney or somebody close to her to issue proceedings themselves. The premise of such an application being that any continuing abuse was not in Britney’s best interests.