Whilst this is a legal setback for Ms Spears, there are avenues still available for her to pursue including to petition against the conservatorship. However, Ms Spears alleged that she did not know until recently that this was an option to her.

What is commonly misunderstood is that Ms Spears is yet to file a petition to terminate the conservatorship. The hearing on 23 June 2021 only concerned who would be the conservators of Ms Spears’ conservatorship as Ms Spears had requested her father to be removed.

As Ms Spears is yet to file a formal petition to terminate her conservatorship, Judge Penny was unable determine whether the arrangement is necessary based upon Ms Spears’ testimony.

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Why is Britney under a conservatorship?

Ms Spears’ conservatorship journey began in 2006 while going through a very public divorce and custody battle. In this period, she was captured by the paparazzi driving a car with her son unrestrained on her lap, shaving her head, and damaging a paparazzi’s car with an umbrella. Ms Spears was also admitted to a rehabilitation facility on several occasions, and in 2008 put on an involuntary psychiatric hold on two occasions.

Ms Spears’ second involuntary admission to a psychiatric hospital was the catalyst for Mr Spears applying to the court for an emergency temporary conservatorship, relying on the Californian Probate Code Div 4 Pt 3 § 1801 (2016) (Probate Code). After successfully being appointed a temporary conservator, Mr Spears, and other co-conservators, were entrusted with very broad powers over his daughter’s estate and health. This includes being able to make decisions concerning her living arrangements, meals, clothing, business contracts and recreation.

In the past decade, Ms Spears has launched two global tours, completed a four-year concert residence in Las Vegas, released albums, launched clothing and perfume lines, and appeared as a judge on the X Factor US. During this time the public generally viewed the arrangement as beneficial for Ms Spears, and it was reported that she was involved in decisions concerning her career.

However, public sentiment swiftly changed a few years ago following her cancellation of a Las Vegas residency in 2019 – just one month before it was set to commence – followed by her placement in a mental health facility. There are conflicting reports on whether this was voluntary.

A podcast called “Britney’s Gram” claimed that the residency cancellation was due to Ms Spears’ refusal to take her medication, and that she was being held against her will at a psychiatric facility. An anonymous legal worker involved in the matter was purportedly the source of these claims, igniting the #FreeBritney movement.

While some of the individuals who were initially appointed co-conservators no longer act in that capacity, Mr Spears remains in the role.

Pursuant to § 1851 of the Probate Code, regular review of the conservatorship is required by the court to determine if the conservatorship is still required. A conservatorship should be reviewed after the first six months, then the first year and thereafter on an annual basis. If these reviews were undertaken in accordance with the Probate Code, it can be assumed that the court believed Ms Spears’ conservatorship was still necessary and operating in her best interests.

Do we have conservatorship laws in Australia?

The Australian legal system does not have an identical legal arrangement to a conservatorship. However, similar to conservatorships, in NSW arrangements can be created through financial management and guardianship orders under the Guardianship Act 1987 (NSW) (the Act).

Prior to a court or NSW Civil and Administrative Tribunal (NCAT) enacting these arrangements, the court or tribunal will consider if the individual has any existing arrangements such as an enduring power of attorney or enduring guardianship.

Under ss 14-18 of the Act, a guardianship order involves a guardian making personal and lifestyle decisions for another person, who does not possess the requisite capacity. These decisions concern personal care, healthcare or legal matters. A guardianship order commonly applies to older people or individuals with mental illness who require constant care.

A financial management order, in accordance with ss 25E-25G of the Act, is where a court or NCAT appoints a person to be responsible for managing the financial affairs of an individual who is unable to do so for themselves.

Similar to a conservatorship, a court or tribunal appoints a guardian and/or attorney only as a last resort if there are no other appropriate arrangements already in place, or where an appropriate alternative cannot be found. 

If, hypothetically, the Spears family were in NSW, and Mr Spears planned to create a similar arrangement, he would need to apply to NCAT or the NSW Supreme Court for a guardianship order appointing him as Ms Spears’ legal guardian and make a financial management application to be appointed as her financial manager. If a successful application were made, he would then possess the authority to make decisions concerning Ms Spears’ healthcare, lifestyle, medical matters, finances and legal affairs that is akin to the decision-making powers he possesses under the current conservatorship arrangement. 

Accordingly, individuals in NSW have similar legal arrangements to the conservatorship that controls Ms Spears, and those subjects of such an arrangement have limited, if any, decision-making capacity.

Can Britney really be freed?

Ms Spears has always possessed the right to file a petition to terminate her conservatorship. However, this right has not been exercised in the past 13 years.

On 17 March 2021, Ms Spears’ legal representative commenced action for the Court to appoint the Spears’ current care manager and temporary conservator, Jodi Montgomery, from Pais Montgomery fiduciary, a permanent conservator.

In April 2021 Ms Spears’ legal representation requested that the Spears be allowed to speak at the hearing and directly address the court, a request which Judge Penny acceded to. Ms Spears’ recent court address is significant because she has effectively confirmed many of the suspicions and concerns raised by the #FreeBritney movement.

Among other things, Ms Spears stated that she was “sick of being taken advantage of”, “traumatised”, and believed the conservatorship was “abuse”.

While an important step, Ms Spears’ testimony did not change her current arrangement. As the Court did not suspend or remove Ms Spears’ father from the conservatorship, we will likely see a formal petition from Ms Spears’ legal representative in the future, whether that be for termination of the conservatorship or for the removal of her father.

Ms Spears’ supporters, along with the rest of the world, now await the next steps.

Monique Messenger is a graduate at McCabe Curwood.