“Oh baby baby…show me how you want it be, tell me baby ‘cos I need to know now”. And perhaps, stripping back the media hype, the multi-million dollar pop princess, the outcry of fans and the varying portrayals of an overbearing father, this is what the #FreeBritney campaign comes down to. Nobody actually knew what Ms Spears’ wishes were. “Oops!” indeed.
Twelve years ago, Ms Spears very sadly faced a mental health crisis, which splashed all over the world news at the time. Since then, Ms Spears’ affairs have been handled on her behalf by court appointed guardians, under a “conservatorship”, meaning that she has not controlled her financial or career decisions since 2008. The #FreeBritney movement stems from the demands on fans that Ms Spears now be released from this arrangement, with some even going so far as to protest outside the courtroom where issues regarding the conservatorship are held.
So why is this relevant to Scotland?
The Californian creature known as a conservatorship is broadly equivalent to a Guardianship order in Scots Law. Both allow a person appointed by the Court to look after the affairs of someone who is deemed not to be capable of looking after their own affairs. And this is surely a good thing. There has to be some mechanism by which a person’s affairs can be managed, and in the most part the Guardianship regime in Scotland and the conservatorship regime in California fulfil this need well.
The issue with both, is that the person or persons appointed to look after the incapable adult’s affairs are appointed by the Court. One would hope that in the most part, the Court would select well, and in line with the adult’s wishes. But no Court will be correct 100% of the time.
Indeed, in respect of Ms Spears’ conservatorship, Ms Spears herself would appear to disagree with her fans. She has expressed no wish of which the media is aware to bring the conservatorship to an end. Instead, her focus and her battle has been in respect of the people acting under it. She wishes that someone else be appointed.
Can she do this? Well, if we were to assume this was happening in Scotland, rather than California, the answer would probably be no. As an adult currently deemed incapable of making her own decisions, while Ms Spears’ preferences would have to be taken into account in a Guardianship process and she could therefore influence the appointment, she would not be able to demand that her wishes be followed.
Could she have prevented this situation? Could she have shown how she wanted it to be? This time, the answer is an emphatic yes! A Power of Attorney is a document which allows an adult, while they are capable, to appoint the people who will look after their financial and/or welfare affairs for them should they become incapable. By making a Power of Attorney, an adult avoids the need for a lengthy and costly Court process to have guardians appointed. The power is in their hands to appoint the people they love and trust to look after their affairs. Most importantly, by putting in place a Power of Attorney, they do “show me how you want it to be”, rather than leaving others to guess at their wishes.
Should a Power of Attorney be entered into lightly? Of course not. By putting in place a Power of Attorney, you are giving other people power over your affairs at a time when you will be vulnerable. Accordingly, it is very important that consideration is given and advice is taken before a Power of Attorney is entered into. But should everyone have a Power of Attorney? Again, emphatically, yes. Having a Power of Attorney in place provides the comfort that your affairs will be dealt with in the manner you would wish, by those that you would wish to deal with them, should you not be able to do this yourself. As Ms Spears’ so publicly demonstrated, incapacity can come about without warning, with drastic effect on a person’s life. But it is easy to make sure you are prepared, if the time comes to hand “Over to You Now”.