A sensible state response to the Britney Spears case

Massachusetts should establish office to aid adult guardianship decisions

THE BRITNEY SPEARS case has called attention to what can go wrong under legal guardianship or conservatorship. For example, we cannot know exactly why it took so long to let Spears choose her own lawyer, but no one should be denied that right for any period of time. Protections were added to Massachusetts guardianship law in 2009 to prevent this exact problem.

The Massachusetts Guardianship Policy Institute has advocated since 2015 for better oversight and greater public support for guardianship and conservatorship. The challenge is threefold: (1) to make guardianship services more accessible to those who need such help; (2) to prevent overreaching by guardians or conservators, by allowing autonomy where possible and preserving the individual’s dignity at all times; and (3) to achieve these aims without making the laws so weak or so expensive to administer that vulnerable people who need protection cannot get it. Guardians and conservators who act fairly, competently, and with compassion have nothing to fear from greater oversight and accountability for all such appointments.

Guardianship and conservatorship are complex relationships that should always remain a last resort, to be used only when less drastic means have been unsuccessful. These appointments cannot be based on value judgments about “quality of life” for individuals who need our help. The sole purpose is to assist in achieving whatever life choices the individual would make for themselves.

For example, whether Britney Spears wants more children must be her decision, unless she were so incapacitated that she had no idea how children are conceived or what having a child means. She clearly is not anywhere close to that level of incapacity. But often the issues are not so obvious. Finding the right balance between safety and individual autonomy for a person struggling with incapacity is a continuing challenge. Those who take on this responsibility need ongoing public awareness and support.

The Massachusetts Guardianship Policy Institute is committed to renewing public and private investment in good guardianship. The pillars of best practices are (1) education about the nature of incapacity and how to assist without compromising the individual’s dignity; (2) robust training and oversight of guardians and conservators; and (3) adequate public funding of the system, to provide trained, qualified, and willing guardians and conservators

Change is afoot. The Probate & Family Court in Massachusetts joined with the Institute in 2020 to establish Public Guardian Services, a privately funded, publicly supervised guardianship service, now working in three counties, with plans to expand statewide with additional private funding.

But private sources are not enough. Massachusetts, unfortunately, has not been a leader in funding public guardianship. This must change. In a recent letter to the US Health and Human Services Secretary Xavier Becerra and Attorney General Merrick Garland, Sens. Elizabeth Warren and Bob Casey acknowledged the need for more collaboration among federal officials and state courts to repair the holes in the system:

“While guardians and conservators often serve selflessly and in the best interest of the person under guardianship, a lack of resources for court oversight and insufficient due process in guardianship proceedings can create significant opportunities for neglect, exploitation, and abuse.” 

A bill to establish an Office of Adult Decisional Support Services within the Trial Court (H1898/S974) has been before the Legislature since 2017, now sponsored by Sen. Cynthia Creem and Rep. Paul Tucker. This legislation would improve oversight and best-practices in guardianship and conservatorship, as well as support alternatives to guardianship—such as supported decision-making—statewide. The office would identify training opportunities, resources, and technical expertise for all court-appointed fiduciaries, using centralized systems and tools for oversight and program development. This bill should be enacted in this Legislative session.

Meet the Author

Scott Harshbarger

Senior counsel, Casner & Edwards
Meet the Author
Public guardianship is a core function of state government. So is the duty to support and oversee those who offer this kind of assistance. We therefore must continue to raise public awareness around guardianship and conservatorship practices that were brought to light by the Spears case, and to provide systems to protect the rights of individuals from the risks of overreaching, or in isolated cases, outright abuse guardians or conservators. We believe that the way to achieve both of these important goals is to act with purpose to establish the Office of Adult Decision Support, and to fund it adequately.

Scott Harshbarger a former Massachusetts attorney general. Paul Lanzikos is a former secretary of elder affairs. They are members of the Massachusetts Guardianship Policy Institute.