Guardianship/Conservatorships and how they affect marriage:
Thanks to Britney Spears, many people round the world who would never have heard of conservatorship otherwise now know a little bit more about incapacity law!
In America, a conservatorship is an order made by a court appointing someone to make legal decisions on behalf of an individual who is unable to do so for themselves, such as someone suffering with dementia. The court-appointed conservator can make decisions regarding an individual’s financial or personal affairs and sometimes both – this distinction often depends on the individual State in America.
While we’re experts in many things here at Watermans Legal, US law is not one of them. However, reports indicate that the subject of a conservatorship is specifically unable to marry without the express consent of the conservator(s). The ultimate aim of this is to protect the vulnerable adult from exploitation.
The Circus that is the case of Britney Spears shines a light on the possibility of conservatorships being open to Toxic abuse. There has been great debate over whether she needs to be so Overprotected by her father Jamie Spears. The prospect of a court order that can control every part of an individual’s life, including the choice of a partner, is concerning for anyone – especially if it could ultimately prevent Ms Spears from marrying the person of her choice.
The closest equivalent to a conservatorship in America in Scots law is a guardianship order.
This is an order made by a court appointing a trusted relative or friend to make decisions on behalf of an adult who has lost capacity to do so for themselves. The process is complex, but will be overseen by a solicitor who can support and advise the person applying. There are many inbuilt safeguards in our system – an order can only be made when the court is satisfied that the individual concerned has lost capacity (two medical reports are required for this) and a detailed assessment of the suitability of the applicant, and the need for the order, must be carried out for the court by a specially trained social worker and/or another expert on financial decision-making.
Most importantly, the individual who is the subject of the action has to be given notice of the application and has the chance to consult their own solicitor.
The law also insists that his or her own views, as far as they can express them, are taken into account by the court. While an order of this kind can be indefinite, this is rare – it’s far more likely that the court will fix a review for three to five years, to make sure there is still an ongoing need for the order and to take account of any changes which are needed.
In relation to marriage, there are no cases we are aware of in Scotland where a guardian has sought to consent to a marriage on behalf of an incapable adult. It’s unlikely that the court would grant such an application given the legal implications of marriage and the need for individuals to give valid consent to tying the knot.
There are also specific restrictions on divorce. While the guardian to an incapable adult is allowed to raise or defend divorce proceedings involving that individual, the law specifies that they must have the explicit authority of the court to do so. Just having general powers to make legal decisions about the person is not enough. This additional level of protection reflects the important legal implications of marriage and the importance of the individual’s own wishes.