20 July 2021

Charlotte Fleming and Sian Keddie discuss the legal concept of a Conservatorship, Scotland’s equivalent mechanism and steps that you can take to avoid the upset and distress experienced in Britney’s situation.

You may have noticed #FreeBritney trending on social media recently causing you to ask Google ‘Do Conservatorships exist in Scotland?’

Legally, a Conservatorship is a mechanism by which an individual is appointed by the Court to manage the affairs of an adult who lacks capacity to manage their own affairs. It is, therefore, similar to the mechanism used in Scotland – Guardianship. In both cases, the Court-appointed Conservator or Guardian has the ability to make decisions involving the adult’s financial affairs, as well as their health and medical decisions.

This is a role that comes with an extraordinary amount of responsibility and discretion and so it is vital that the Conservator or Guardian is trustworthy and acts in the best interests of the vulnerable adult, including taking their wishes, where appropriate, into account.

Could what is happening to Britney happen to me or my loved ones?

You may be concerned to learn that in Scotland we have an equivalent mechanism to the United States’ Conservatorship – the issues affecting the Spears family may not be so remote after all.

In Scotland, there are stringent rules which require to be complied with to obtain a Guardianship Order. For example, two medical reports must be obtained from registered medical practitioners which confirm that the adult lacks mental capacity to make their own decisions.

The proposed Guardian will also require to obtain a ‘Bond of Caution’ - an insurance policy that protects against the appointed Guardian acting dishonestly. If the Guardian were to dishonestly take money from the adult in question, for example, this insurance policy would ensure that the adult is reimbursed.

Once granted, the court will impose very strict timescales which means that most Guardianship arrangements will be subject to review every 2-5 years. During their tenure, the chosen Guardians are very closely monitored by the Office of the Public Guardian.

In contrast, although the process for obtaining a Conservatorship in the USA varies from state to state, the requirements appear less rigorous than those required by the Scottish courts for a Guardianship. Therefore, it is unlikely for Britney’s situation to occur to the same degree in Scotland. However, there are other problems associated with Scottish Guardianships, including the costs involved in such applications and the fact that applying to the Court in Scotland can be incredibly time-consuming.

What can I do to avoid Britney scenario?

Whilst Guardianships are closely monitored to protect against abuse of power or questions of integrity, you may be concerned at the prospect of the court appointing someone to manage your affairs on your behalf. Crucially, you may worry that the person appointed by the Court is not someone you would have appointed yourself, given the choice.

Thankfully, you can arrange for a Power of Attorney to be prepared! You may think that putting a Power of Attorney in place is not something that requires thought until you are at least middle-aged. However, the ‘Free Britney’ saga demonstrates that matters of capacity can be relevant at any age and this is a cautionary tale!

A Power of Attorney allows you to choose the individuals who will be responsible for managing your affairs if you lose the capacity to do so. You can – and should – think carefully about who you wish to appoint and be confident that they will make the correct decisions for your wellbeing.

You can also leave additional guidance about the criteria you wish to be met before being deemed incapacitated, any spending preferences and what kind of decisions you would have made about medical care. In short, you can provide a great deal of guidance and this should give you confidence that your Attorneys can act in accordance with your wishes as far as possible.

If you would like to discuss putting a Power of Attorney in place to ensure peace of mind, contact our Wills Estates and Succession Planning team.

Charlotte Fleming, Solicitor cfl@bto.co.uk / 0141 221 8012

Sian Keddie, Paralegal ske@bto.co.uk / 0131 222 2939

www.btopersonal.co.uk