The very public conservatorship of Britney Spears inspired a larger movement to reform the conservatorship process in the Bay Area. Alameda County released a grand jury report Tuesday that outlines what appears to be deficiencies in the delivery of legal services in conservatorship cases by Alameda County Department of Public Defender (ACDPD).
According to the grand jury report, “the widely publicized Britney Spears case and two films…led to a new wave of public interest and induced media outlets to take a critical look at conservatorships. These developments drew the attention of the Alameda County Board of Supervisors.”
The grand jury report describes how a conservatorship is established, which is through a legal process in which a conservator is appointed as a decision maker on behalf of an impaired adult. According to Local Rule of Court 7.820, the court will appoint a free public defender for all developmentally disabled and indigent adults, and it will appoint Legal Assistance for Seniors (LAS) for all other adults.
Depending on the circumstance, some or all of the ‘powers of conservatorship‘ are transferred to another person. This includes the ability to choose where to live, make educational or medical decisions, and the choice of who to have social or sexual relationships with.
In 2021, the California Legislature passed AB 1194, known as the zealous advocacy law. The law “requires counsel to act as a zealous advocate, meaning that the attorney must advocate for what the client wants, rather than what the attorney (or anyone else) thinks is in the client’s best interest.” If a client states that they do not wish to be placed in a conservatorship, the lawyer representing them must fight for that outcome.
There’s a reason for this law. The grand jury report outlines that these lawyers are the only hope for people to avoid being placed into conservatorships that are unnecessary or too restrictive. The report also lists some of the key differences between the way cases are managed by the public defender and LAS.
According to that report, the caseload for the one attorney in the public defender’s office is up to 362. On top of that the ACDPD does not track case outcomes or provide a formal grievance procedure for clients who feel their representation did not support them reasonably. The grand jury report also states that “the 2021 zealous advocacy law expands the risk of litigation by, or on behalf of, conservatees who
are dissatisfied with their attorney.”
This means that the County of Alameda could be found liable if conservatees don’t feel they were represented well.
KTLA sister station KRON spoke with Legal Director of the Spectrum Institute Tom Coleman about the impacts of the grand jury recommendations. In 2021, the Spectrum Institute published a report on the state of “Public Funding of Legal Services in Conservatorship Proceedings,” which was then sent to all 58 counties in California. Alameda County responded by opening an investigation into the proceedings.
The grand jury investigation revealed several key findings:
- probate conservatorship unit is severely understaffed and overworked
- failure of the Public Defender to gather data on conservatorship case outcomes
- not all proposed conservatees receive the same level of service
- involuntary conservatorship proceedings can quickly drain proposed conservatees’ estates
Coleman says that Alameda County can do better, and this could be negatively impacting conservatees. “Think of Britney Spears, if she ever should have been in one it could have been for a few months, but there were other ways of dealing with it,” Coleman said. “More than 13 years she was trapped, and her defender had a financial incentive to keep the case going.”
Coleman adds that though the public defender is not making more money due to these cases, he doesn’t have enough time to do his job properly because he lacks the resources.
A new bill that is currently pending, AB 1663, “that’s going to impact Alameda County and could be on Governor Newsom’s desk in a matter of a few months. That’s going to require a thorough and proper review of all cases,” Coleman says. He recommends a thorough review of the nearly 1,800 conservatorship cases in Alameda County to ensure that people already in conservatorships are in them for necessary reasons.
Coleman shared a set of tips for how to protect yourself and your loved ones from unnecessary conservatorships:
- Be proactive. To those who are personally in your 50s or 60s — or adult children who have parents that age — and don’t have dementia, be proactive and create estate plans. Go the extra mile and have a capacity declaration done by a medical professional to prove that the person had the capacity of mind to make these plans (otherwise, a judge can just void it).
- Have a will and trust established, but include a poison pill. Something that states anyone who challenges the will or trust will get $1 and nothing else from the estate. This creates a disincentive to people challenging the documents.
- For parents of adults with developmental disabilities, try to avoid conservatorships by instead exploring less restrictive alternatives, such a supported decision-making and powers of attorney. Insist that a regional center convene a process known as an IPP to explore such options. Don’t strip your son or daughter of their civil rights without trying to empower them with these methods.
Coleman also shared information for anyone who believes they might be in an unnecessary conservatorship:
- Make the desire to terminate it known to others. Also, put it in writing. “My name is . . . . I want to end this conservatorship. I want an attorney appointed to help me.” Sign and date the written statement. They can also add a sentence saying that they authorize a specific person to help them make their wishes known.
- The individual could ask a friend, family member, or caregiver to deliver the written message to the court investigator, to adult protective services, and to the public defender’s office.
- If they are a regional center client, they can have their supporter give the statement to that agency too. They can also call Disability Rights California at 1-800-390-7032 and ask for help to end the conservatorship.
- If your desire to end the conservatorship is not documented, people may pretend you did not want it ended. Be persistent. Ask. Ask again. And ask again. Don’t give up. It is your life and your rights at stake.
KRON reached out to Brendon Woods at the Alameda County Public Defender’s Office, but the call was not returned. The County of Alameda Risk Management team did not wish to comment on the matter.
