Transcript of “Rights Here, Rights Now –

Episode 37: Dana on Guardianship/ Free Britney Spears Movement

Produced by the disAbility Law Center of Virginia.                                                            

[INTRO]: The information provided on this podcast does not, and is not intended to, constitute legal advice. Instead, all information, content and materials available are for general informational purposes only.

[Enter host, Virginia Pharis.]

[Virginia]: Welcome to Right Here, Right Now! A podcast about disability advocacy and activism. I'm your Advocate host, Virginia Pharis

[Enter host, Suzanne Herbst.]

[Suzanne]: And I'm your Advocate host, Suzanne Herbst.

[Virginia]: Every two weeks we dig into to relevant issues, current events, and avenues for self-advocacy.

[Suzanne]: Because someone has to.

[Virginia]: And it might as well be us.

This podcast is produced and edited by the disAbility Law Center of Virginia, the Commonwealth’s protection and advocacy agency for disability rights. Find out more at: www.dlcv.org.

[Enter, host Virginia Pharis & Suzanne Herbst]

[Suzanne]: We have a very exciting episode today where we're going to be talking about guardianship as specifically looking at guardianship as it relates to the Free Britney movement!

[Virginia]: Yeah, I mean talk about current events

[Suzanne]: exactly what you don't we don't get too much opportunity but we don't get a whole lot of opportunity to be so, this is very exciting for us.

[Virginia]: Yes, but, before we jump in let's check out disability in the news!

[President Joe Biden’s new 2 trillion dollar infrastructure plan includes a massive investment in home and community based services for people with disabilities. 400 billion of that is allocated to Medicaid home and community based services for those currently on waiting lists.

“These investments will help hundreds of thousands of Americans finally obtain the long-term services and support they need, while creating new jobs and offering caregiving workers a long-overdue raise, stronger benefits, and an opportunity to organize or join a union and collectively bargain,” the White House said.

The White House pointed to research suggesting that increasing pay for direct care staff leads to better quality care, greater productivity, fewer health violations and helps prevent deaths.. The spending would occur over the next 8 years, paid for by the corporate tax increases.

Beyond services for people with disabilities, Biden’s American Jobs Plan would also expand access to competitive, integrated employment for people with disabilities and bar employers from paying people with disabilities what’s known as subminimum wage — pay that’s less than the federal minimum — the White House said.]

[Suzanne]: Today on the Podcast, we have our beautiful, wonderful, intelligent, attorney and we are going to be talking about guardianship with specifically we're going to be talking about guardianship through the lens of the Free Britney Movement. I'm sure a lot of our listeners have either heard about, or seen, the New York Times documentary really going into detail about Britney Spears, the situation with the conservatorship, and her battle to get her father removed from that conservatorship. So we're going to go into that today. We’re going to talk about guardianship in Virginia as well.

[VIRGINIA]: Yes, the state, not me, specifically. But, I do want to put out the disclaimer at the very beginning: we are not speculating on Britney's specific situation and we're not going to talk about the exact terms of her conservatorship or what legal rights she necessarily does or does not have that said this is something that people are coming suddenly very aware of and feel really strongly about so we think it's important to talk about guardianship and conservatorship in the context of this documentary what subjects it brings up and how these Concepts might apply to Virginians in similar situations.

[Enter, attorney and advocate, Dana Traynham- yay! J]

[Dana]: So, people lose a lot of rights in guardianship. In the legal world, it’s sometimes referred to as a “Civil Death.” Because: if someone is declared incapacitated, and they have a guardian appointed, then they lose the right to sign… I mean think of how many times in a week, or a month, you have to sign your name to something?? You sign your name to it because you have the legal capacity to do so. If someone has a guardian, they can't sign their name to anything. So any sort of contract getting an apartment, getting a credit card, buying anything that requires a signature that aren’t allowed to do that. They're not allowed to make their own medical decisions, so they aren’t allowed to make decisions about their bodies.

When a guardian is appointed, the clerk of the court sends out certain letters within 24 hours of that Guardianship being appointed those letters are go out to the Department of Motor Vehicles, if a person has a driver's license, that driver's license is immediately revoked; if they don't have a driver's license there's a letter put on file that they cannot get a driver's license. A letter is sent to the Department of Elections. If that person was a voter, their right to vote is revoked. They. Cannot. Vote. A letter is sent to whatever that place is that keeps track of people that can't have firearms? Because, if you have a guardian, and you’re declared incapacitated, you no longer have the right to possess a firearm. So, you know some people would say what you have a guardian and you're incapacitated maybe you shouldn't have a firearm but you know what Virginia we think the right to hunt is so important that it’s in our constitution. The VA Constitution gives us the right to hunt. So, that could be a big thing for a family. You know, if say you have a family that hunts together. And it’s not just ownership of firearms; you cannot posses a firearm! So, if they live in a house with Firearms they cannot have access to them. So they have to be locked up.

So those they can’t write a will, they can’t change a will. They can’t write an advance directive, they can't change their advance directive. They can't get married they will they can't get divorced. So, you know..they can’t move across state lines, without court approval so this is all these are all things..those rights that are lost a person has full guardianship. [Now,] The court CAN protect any of those rights, but if they're not specifically protected in the court-ordered guardianship and they are lost. Um.

So, I do want to say before we get too far into it, or talking about Britney, or “Free Britney!”(movement) for those of you who’ve already watched the documentary, or who know anything about it, you’ll see that they talk a lot about conservatorship, which is- let’s just talk about vocabulary before we get started. In California they call it conservatorship and that's conservatorship of the person and conservatorship of the estate. Oh, & she has both; her dad is both. But he makes decisions about her person, activities, for medical care, for residents, that sort of thing- That’s what California calls conservatorship of the person. And then, it’s ownership of the state.

(That’s) It’s pretty self-explanatory. In Virginia, we have different terminology. Similar- the two are similar, but they have different wording. So we have- conservatorship, which means: just over the estate. And over the finances of a person. That’s a conservator. Instead of having a conservator of a person, we call that a guardian. And so, in Virginia, if someone is declared incapacitated, and they have someone making decisions about their day to day care, their medical care, their residence- that sort of thing, then they’re called their guardian. Terminology is different, but they act pretty much the same.

[Virginia]: Yeah. And those being extremely different concepts from A Power of Attorney, or a healthcare agent.

[Dana]: Oh, absolutely. Absolutely. So, we here at DLCV, believe, and I personally believe, very strongly in looking at alternatives to guardianship. And actually, Virginia law on this is also very clear. The court must look at alternatives to guardianship. [For instance,] Is there a less restrictive alternatives to guardianship? Because, guardianship is the most restrictive so, one of those alternatives to guardianship is a power of attorney you can have that for healthcare you can have it for finances and for kids still in school under 19, you can have it for educational decisions. And, it’s SO MUCH MORE DIFFERENT than a guardianship, for many reasons.

All those civil rights I talked about losing under a guardianship? You maintain those rights. Under a Power of Attorney. [So,] when you lose capacity you maintain those rights under a power of attorney…and another big thing is that you get to choose who it is that makes decisions for you, when you can't, under a power of attorney. And you choose-- NOT THE COURT. And, you also get to choose what power you give that person, &, which powers that person does and/or does not have. So, maybe I don't want that person… maybe I do? So, Virginia maybe I name you as the person who makes decisions for me when I can’t. But, I'm pretty clear on my end of life decisions so I'm going to write those down as instructions and they must be followed and I'm going to say you don't have the right to make any decisions about end-of-life care. so I can live.

[Virginia]: Yes, because I would do everything in my power to keep you alive forever. I’d water you like a beautiful flower!

[Dana]: So—Yes, and that’s not what I would want…(lol). So, there are certain differences than in an advance directive. Some other differences in advance directives as opposed to a guardianship is that the courts don't have to get involved with an advance directive and speaking as an attorney I can tell you to keep paying attorneys out of your life as much as possible is a good thing! So you don't have to work all the attorney's when you write a power of attorney. And- you can change it at any time. So, if I decide, Virginia? You know what? You're fired! And, Suzanne, I want you, b/c (cuz) you're my best friend now. And I want you to make decisions about my care!

[Suzanne]: I am so honored, first of all, thank you. And, I think you made the right choice here! J

[Dana]: Well, I am fickle! But, thank you. But, one of the biggest things with a power of attorney or an advance directives (and, we’ll get into those-that vocab) with an advance directive, I don't give up any of my rights right now, because I have capacity, Most people think I have capacity. So, I can make all my own decisions and that doesn't come into…(pause) I don’t lose my right to make decisions. That doesn’t come into play until I can’t make them. So, you know, I go along in my daily life, I’m making my own decisions, I’m talking to my doctor, (…) making those decisions- Say I have an injury or an illness or mental health crisis, and the doctors say that, “She’s not able to make her own decisions right now,” it's on my guardianship! Guardianship, those rights are taken away! And even if I can make decision A, I can't make decision A because the courts already said I can

[Virginia]: And, I think that that's, you know, you said jokingly at the beginning of this: “most people think I have capacity,” but that's that's a really important part of it,…because (cuz) in the state of Virginia, like, you by default have capacity, unless something has been said otherwise. I had a little bit of an issue with how the documentary… (close Outlook)… I have a little bit of an issue with how the documentary sort of discussed conservatorship and people with disabilities because they were talking about like, “Well, she’s not really disabled, she’s not really…deficient!” As if, you know, somebody who has a disability, who has you know, any sort of [disability] cognitive issue…WOULD need a guardian!

[Dana]: Yeah! Yeah, and the other thing they said, at least twice, but not more, so this is mostly for old people. And, I don't know if that's true in California but it is not true in Virginia. I see guardianship the two main populations get Guardian.s yes older people whose mental capacity is declining because of age! yes that is a population where we see guardianship. The other our young folks just turning 18 you have a disability especially an intellectual, developmental disability, and the parents are told, “Hey, they need guardianship,” without giving any other options, without saying, “What are the other options?” And they do it, because they think they're doing the best thing for their child! And, it may be! [Continued]

But there are other alternatives that sometimes aren’t considered—(pause)-- and so you know those are the cases that we really care about really strongly in Virginia because we have a lot of young folks getting guardianship in an early age- that may not need it! They would certainly benefit from some of these alternatives!

[Suzanne]: Dana, let me ask you: I don't think the documentary was super clear about this. At least, not to me. It seemed like, oh she you know went into a hospital and then “clearly” she needed a conservatorship. So, how do judge, or how do you determine when somebody needs a guardianship or conservatorship?

[Dana]: Yeah, I didn’t really like how they did that, either. It was almost like, “oh you're in a hospital; you need a guardian. I would say--Virginia neither. But most people in psychiatric hospitals in state facilities…Don’t have guardians- And um, I don’t have the numbers on that, but, they don’t have guardians even if someone is involuntarily committed such as, it sounds like Britney was still does not mean she doesn't have capacity so how the court determines capacity is through the guardianship receding what happens is someone petition the court for guardianship. Here, it was her father. Okay, it was Jamie. And, in that petition, you know, they probably included there was medical evidence that said she needed a guardian.

That they concluded So, there were, there were people in the (within the) documentary, who said, that probably -in the beginning probably- she probably did need it. (pause). You know, b/c, at the time she wasn't making great decisions! She was sort of spiraling! And so, maybe she needed that substitute decision-maker, to kind of step In temporarily, and the father did do a temporary conservatorship, at first. And, the court is going to look at the evidence. They didn't say anything in the documentary about a guardian ad litem. In Virginia, we have a guardian ad litem system-[again, vocabulary.]. So, every person who goes before the court is appointed what is called a guardian ad litem.

And again—vocabulary-- that person is not a guardian. So it's kind of a bad title, because (that person)—it’s not a guardian. The guardian ad litem is the attorney for the court. Unfortunately, a lot of people think that the guardian ad litem is my attorney, and that person is going to take care of me, in the Court! The guardian ad litem is the attorney for the court, not for the individual. And the guardian ad litem has several roles: First, they… review the record. And, interview people if necessary, so that they can make recommendations to the court. They also talk to the individual who may be getting a guardian, to tell that individual, what their rights are. Including, the right to be there in court; the right to a jury trial in Virginia; If, it can be by jury, never seen it happen, but it can be.

And they also have the right to an attorney if they can't afford one will be provided for them. At the court’s expense. So the guardian ad litem comes to the court, with all that information, they write a report. And, they answer two questions: First off, do they think that the individual lacks capacity? And, if the answer to that question is yes, then they answer the second question. And that question is: is the person petitioning to the court to be the guardian and or conservator the best person for the job? And so that's the role of the Guardian ad litem (GAL). That didn’t appear to, if they have that in California, it wasn’t mentioned in the documentary.

[CONTINUED]: & One other important thing, that they didn’t mention, in Virginia law, that is pretty good under Virginia law, if the individual absolutely has the right to the attorney of their choice so documentary that Britney did not have the right to choose her attorney, and when was appointed for her. This doesn’t mean that she got less legal representation- As, it sounds like this guy's been was it the whole time. But in Virginia you absolutely have the right to attorney of your choice. And that's true even if you're found to be incapacitated, you still have the right to choose your own attorney. The other difference in Virginia law is that Guardian Ad Litem must give consideration to the individuals preference. If someone is going to be getting a new Guardian Ad Litem must include that they have talked to the individual about their preference, but about who will also fulfill that role. [Pause] And then, the law goes even further, in that the court -and I want to make sure I got this right- the court shall give due deference to the individual for who they want to service that role. So, that is very different, than what we saw in the Britney piece.

[Virginia]: So it didn't seem, you know, like, even in the beginning, like she had a whole lot of choice over her father becoming the guardian in the situation. You know, very clearly later on, she made attempts to have him removed—Even, you know, saying: “I don't I don't even mind having a conservator I just don't want it to be him,” and there were kind of dubious things that happen later, like, her ex-husband taking out a restraining order against her fatherconservator because he allegedly assaulted one of their kids! What can people do in Virginia at least about a situation where like they need somebody out or you know God forbid they are in danger from somebody or need of protective order against somebody who's their guardian?

[Dana]: So, the courts, you know, they can go and still get a protective order even if the person is there guardian. And the next step in that case would probably be to get an attorney and ask to have that person removed, & use as evidence the fact that you got a protective order against them. I will say that it's, it's only true in all states but it's definitely true in Virginia it's easier to get a guardian than it is to have one removed so what's a guardian is in place- if the individual, in the past so the person doesn't need the guardian it was just a for example the person had a guardian appointed after they were in a car accident a serious head injury. A an example.

After a period of time, this person’s making a series of decisions…Physicians then there could be evidence of frustration capacity go back to court and ask for that guardianship to either be removed or be modified and give them some of their rights back to the level. THAT is a fairly straightforward process in Virginia and that's something that dLCV assist people with the harder case is when the person still needs a guardian and there's no doubt they still need a guardian what the guardian they have is not a great choice.

[Dana, continued]: And, especially, if it's a family member. If you are- you’re going to court & you have evidence such as a restraining order or you have evidence of malfeasance, and they're not then maybe, yeah, you can,

[Dana, cont]: You know, THEN, maybe- you know you can get a guardian removed and replaced with somebody who's going to be doing you favors. ALSO, You need to have someone readily available to replace the guardian. Because the courts already declared that person incapacitated, they cannot make their own decisions! So [in that case] the court is going to be really reluctant to remove someone as guardian, without immediately replacing it with somebody else. Because otherwise it leaves the person in—kind of in “Legal No Man's Land”, because they can't make their own decisions. But there's nobody available to make the decisions for them. & We do see that happen a lot of times. When the guardian dies. And, there has been nothing put in place for his to take over. This puts the person/individual in a difficult place to be then, because if I don't have the capacity to make decisions I am so courts don't want to put people in that situation by removing a guardian and not having somebody replace them, so. But, (you know), here, that wasn't Britney's case, because, she named a bank that she wanted to be her conservator. And, I found it interesting that the court said, “Well, we’re not going to take Jamie off as the conservator, but we will add the bank…that Britney wanted.” So, then, I guess the court saw it as a compromise. (?)

[Suzanne]: One of the key pieces in the documentary, you know, is Britney saying yes, she wants this conservatorship, but she also wants this third party, this bank to take over the estate process. I think [that], you know, when we think of guardians, we probably, usually, think of, like you said, like a mom and a dad or maybe of children. So, what kind of situation would we have where where you do have that third party? That maybe, is a business that becomes a guardian or conservator?

[Dana]: So, we do see that in Virginia, and there two different ways to go for that. It is either paid, or public. So, Virginia does have a public guardianship program and if someone is considered “Indigent,” and what we call unbefriended, meaning they don't have anybody in their life in order to be their guardian. And, they can't afford to pay their guardian..[…]. And I’ve seen like, I’ve seen people pay attorneys to handle that role, and I’ve seen like… I've seen like organizations that will do that? But they pay them. And I think, you know, & this is not my area of expertise, BUT a lot of times it’s based on a percentage of that person’s estate. You know, so..or, if they get, say, or they were to get, Social Security Disability, the percentage of what they say it's only that. The percentage of what they get can only be paid to what the guardian or conservator of their estate [decides]. And, it did sound like that was true, and, in Britney's case, too, like 1.5% of her gross revenue pay her guardian and her conservator one interesting thing came up on social media- it’s a question from one of our colleagues. Is that, you know, Britney also has to pay her own attorney, but, she’s also gotta pay her dad’s attorney? You know, what’s up with that??

[Dana, cont.] Yeah, if the person under guardianship has the finances, then, they have to reimburse the person who petitioned the court for guardianship (in the first place). And, here's the thing, so, I petition the court to be guardian of Virginia. And, because, cuz, you know, somebody has to. J And so, I petition the court & I pay my lawyer. Oh, and get this I can appointed. And we get the petition and go to court. And she works here at dLCV, [. ..]so we know she's got a lot of money! And, so, I asked what--- everybody's hysterically laughing but they're on mute, so, you guys don't know that! So, I ask the court for Virginia to pay me back once I'm employed to be her guardian. And, if she has the finances, […] it's the court, it is in the courts discretion. The court can say, “Yes, Virginia you have to pay back Dana T, because all the court costs involved. And then, I can still say, “Well, your honor: I didn't bring this frivolously… I really thought that she needed a guardian! And, I really did it because I care about Virginia. And, I did it, you know, in her best interest.” And (also for the) record, I and the court can still order Virginia to pay attorneys fees. … If the person under guardianship has the finances, they have to reimburse the person who petitioned the court for guardianship. Now, Virginia says, “I don’t like that!” [And I don’t either!] Can still order Virginia to pay it all. But that doesn’t sound like it’s the case with Britney..at all. […].

[Virginia]: So, we got a question from listener, Katie. Thank you Katie-- saying that her number one question was: How frequently guardianships or their conservatives have to removed? Because, you know, like you said earlier, it sounds like this was originally supposed to be a temporary situation. But, this definitely shift into a permanent situation! I know we can't answer the exact specifics for Britney’s situation! But what’s it like in Virginia??

[Dana]: In Virginia, guardians & conservators are required to submit annual reports. And, guardian’s submit their reports to the court like the Department of Social Services does? Then, they submit them to the court conservative submit their reports to the commissioner of the revenue I think it's a different do I say required and I probably should put that in there quotes because I've been involved in cases where no report has been filed in over 10 years and nothing happens!

Now, part of the report is that it does, at the end of a year, you like the individual still needs this level of protection but if the reports are filed then you know it doesn't really meet that purpose they are not reviewed unless the court order actually puts a time limit on it. And, I have seen court orders where the guardian is appointed for a year. And in which time, the court will re-evaluate the case. That's not the Norm. The Norm is—See, it’s up to the person under guardianship, OR somebody who cares about them such as dLCV, to assist them, and then ask the court to review and modify it but it is not regularly reviewed and some people don't know they have the right to have it modified or terminated one thing that I noticed that they said […]

And I know there’s this whole section about Britney dating this guy and there was a suggestion that you know he was not a good influence on her own life and maybe that was part of the reason why the conservatorship was developed in you know maybe there was you know some allegations of potential fraud when there's a suggestion of undue influence from an [outside].. from another party?

[Suzanne]: One thing that I noticed, that they mentioned in the documentary, and that (really) bothered me was they had- you know-, this whole section about Britney dating this guy. And, there was a suggestion that, you know, he was not a good influence on her own life. And, maybe that was part of the reason why the conservatorship was developed, and, you know, maybe there was, you know some allegations of potential fraud? So, when there's a suggestion of undue influence from a from another party what kind how does that affect the conservatorship are the guardianship?

[Dana]: You mean, how does it affect it being put into place, or, when it's already in place?

[Suzanne]: I think, being put into place. My question is: How much do the courts take that into account?

[Dana]: So, so I think especially when you're looking at finances I think that's major pieces of evidence-- If you're looking at having a conservatory, as Virginia defines it—not you, VA, THE STATE J [Virginia: “An easy mistake.”] so, say, you have someone like, you know, Britney. That has a lot of money. Or, you have, maybe I have… no, I can't use my mom because she's too young; so, you have a mom who's old-- I can't call my mom old; and you know she is being unduly influenced by [someone] you know, and he is taking advantage of-- of an older person with, with, a lot of money, and you say, you know, “Mom’s NOT making the best choices when it comes to her money. ie: MY inheritance. And so you know what, then, the court could step in, and appoint a conservator to handle them. But it certainly can come in as evidence; I think somebody did say that that guy, was, sort of, the beginning of the of her downfall.

[Virginia]: So, you know, influence with the idea of somebody who's you know maybe going to take somebody's money may be going to start a screw up their life for them and how that can lead to guardianship or conservatorship what about somebody who's already under guardianship or conservatorship like does is that a viable protection for keeping somebody safe from Nair do wells who aren’t acting in their best interest?

[Dana]: Actually it is! Because, remember, when I said, you can't sign your name to anything? If you have a guardian or conservator So, Virginia, I got guardianship over you well then you sent it in and now you have a credit card and you just racked up $10,000 in order to buy clothes-- you cannot be held responsible for that because you didn't have the capacity to sign that it's contract to sign that contract in the first place so it was when you signed it NOW, if I as the guardian gave you the contract and help you figure it out fill it out or sent it in on your behalf? And then, you and I together, took a trip to Vegas, the guardian would be held accountable, and I would be held liable for that!

Because I did not carry out my duties as guardian and conservator- I was neglectful in my duties. So, it is a protection for people on undue influence. Now, sometimes, guardianship and conservatorship does not solve the problem. […] Now, one of the first questions I am going to ask is: What is it that their family member (specifically) wants to protect them from? [One of the questions I’ll ask is:]Why do you want to become their guardian??, etc, etc. And some of the answers I have gotten, etc. etc.Well, the guardianship is not a chasity belt, it won’t keep them from having sex. A GUARDIANSHIP WILL NOT CHANGE BEHAVIOR.

[Dana, Cont]: Again, it’s not going to change their behavior. You can’t use it to force

.

[Virginia]: Expanding on that a little bit moreSo, then, can guardians control—visitation??

[Dana]: So, you know, that’s been a debate for quite some time! When do we give the constitutional right to people to—HAVE RELATIONSHIPS? Virginia has settled that law. […] A few years ago, they gave the right. “All orders, must include certain language, and it must be in 14 point font, etc. etc. Shall not unreasonably restrict, either. Virginia has gone so far as to put it into law. So, it might take court cases to decide what’s unreasonable

Now, let’s go back to Britney as an example. Say, the boyfriend who they say was unduly influencing her maybe using fraud to take money, or power, from her, you know, maybe it would be reasonable to restrict access or interaction with that individual.

[Suzanne]: So, going off of that visitation, another big thing, in the documentary, was Britney's a custody battle for her children so if somebody does have a guardian and they also have children, what can custody of those children look like for someone and someone with a guardian?

[Dana]: In, Britney's particular case she didn't have custody she had visitation and and guardianship while it can be used as evidence in a custody visitation case if it's not the end-all be-all and they have children the fact that they have a guardian search insert Lydia says evidence of whether they're fit or unfit but it is not dispositive mean if it's not with your kids that's not true they just have to have services in place of court in place could be a situation where you know my mom might be my guardian and I live with my mom you know, then the kids do as well… […] So, you know, that could work in their favor. I can certainly see situations where that could be true.

[Virginia]: So, kind of early free Britney news reports when people are speculating on what she could or couldn't do-- I did see people speculating on, “well because she has a guardian, she's not allowed to get pregnant, or have more children. You've talked a little bit about that you know a guardianship is not going to prevent you from having sex- would it prevent you from keeping a child that was born, or, would it allow your guardian, to make you potentially get an abortion?

[Dana]: There are certain things that a guardian cannot approve! It has to go back to court- & then the court has to approve it. If a person’s under guardianship. And one of those is abortion or sterilization another is movie across state lines although the pork and put in the order that the guardian has the right to do that if not it's not in the ORDER, than the guardian has to actually go back to court and the court makes that determination so now the guardian cannot consent to abortion that have to go back to court and Court have to do THAT. In Virginia. I do want to go back to touch back on the custody case something about I thought of we're talking about two different Court proceedings in two different courts when you're talking about guardianship that's taken care of in the Circuit Court of the county where the person lives when you're talking about Guardian I'm sorry custody and visitation that takes place in the Juvenile and domestic relations court j&dr court in the county where they live. So you're talking about two totally different courts in two totally different processes

[Suzanne]: Let me ask you you know after this conservatorship there was a lot of talk about how Britney was still performing she was put at album she was touring and then she had that extremely lucrative residency in Las Vegas so let's talk a little bit about guardianship and EMPLOYMENT?

& what's happening with her wages how much control does she have it certainly looks from the outside like she might have had a lot of control but then it can be scary to think you know is she doing all this work and then not does she not have control of her money??

[Dana]: So a person under Guardianship and conservatorship can still have a job they depending on what sort of skills are capacity is required for that job so Jill performing she could certainly perform and then I have to say I'm not going to speak, specifically, but I will say that the ability to still work and do what you're doing it doesn't say anything really about capacity because we were talking about the about the ability to make decisions about your personal life in your fighting and that's a very different skill-set from working and so one doesn't necessarily impact the other depending on what type of job you're talking about money, or did she have any control over her money?

I will just say legally that with a conservative or no she would not know remember under Virginia law guardian and conservator she'll include the individual as much as possible so even if I have a guardian and or conservative or I still should be allowed to make the decisions that I can make with the understanding that the guardian in my case, in may I may have some input but the end of the day it's that court appointed person who is going to make the decision and who is legally responsible for making that decision.

[Virginia]: SO, clearly, the documentary riled up the fans, and also, the public is concerned about the situation. You know, they felt that, you know, this is NOT a person who needs a conservatorship?? And, say [that], they wanted to get involved? If there is someone in Virginia listening who you know maybe a seeing something similar? Maybe, seeing somebody that is under a guardianship or conservatorship, that they don't feel is appropriate, what can or should, they do?

[Dana]: in that circumstance under Virginia law-- anybody and petition the court for a modification or termination of guardianship. Including the person who is under guardianship. The judge in Britney’s case made the termination, which even before the court hearing that she didn't have the capacity to decide who would represent her that's not even the individual themselves who is already under a guardianship petition the court and that just assumes that there’s going to be an attorney involved. You have a concern can ask the court to look at this guardianship because she was going to be what sort of evidence is there?? What sort of evidence can the person present?

You can't just go and say, you know, I don't think Suzanne needs a guardian anymore you know I play poker with her once a week and she's so you know anybody in the court for that but they also do it in the movement, They’re just fans and they adore her but let's face it none of us are in the courtroom none of us have reviewed the evidence we live in a society where a lot of people get their law degrees from either being on Facebook or watching Law & Order in degrees from watching Grey's Anatomy and in the last year everybody you know…

and as much as you know we may hate it whenever the right to all the evidence this is a private matter as much as you know we really don't have the right to all the nitty-gritty of their personal life so I don't know how much affect the free Britney movement really has except for sometimes people just need to feel like they're doing something and because the court is ultimately going to make the decision based on evidence we can’t play armchair quarterback (then.)

[Virginia]: IF somebody is under a guardianship or conservatorship and they want to get that removed or amended what what can they do?

[Dana]: Well, the first thing they need to do is have evidence that they have been either partially or fully restored to capacity and what that means is that they no longer need a guardian they're able to make their own decisions or it could be that they have mature or they have gone past that emergency situation that brought the guardianship in the first place but they have evidence that play no longer need that level of protection such evidence could be a letter from a doctor for mental health professional send the last five years I've seen a great level of maturity during that time. And my medical opinion or my professional opinion that's enough evidence that do you know you could take that case to court and ask the court emergency guardianship.

And dLCV does assist people in those types of cases if the person is able to get that evidence if they're able to get that letter or they're able to get you know a full capacity evaluation that says they no longer need a guardian that they have capacity if you have an event you're able to get that evidence when you know you can contact dLCV or you can let them know (a) private attorney, to go to court and ask the court to terminate guardianship.

[Virginia]: Maybe, perhaps, one last question, perhaps we will keep meanduring, as we are want to do! But, another question from social media listener Hannah-- thank you Hannah-- not OUR producer Hannah, different Hannah, asked us if we could talk about the positive or necessary reasons for guardianship? And conservatorship, existing, so is it possible to tell the difference? I guess, from when it's a good, and necessary, thing, if it ever is a necessary, thing,- versus what is being misused?

[Dana]: So, when I talk about guardianship-- and advance directives-- and supported decision-making, and representative payee, and (all) different ways to protect an individual—kind of like art tools in the toolbox: all of those tools serve a purpose. Just like in if you have a tool box at home, you know, the wrench serves a purpose, the screwdriver serves a purpose, the hammer serves a purpose. So, it's the same thing with decision-making and they all have a purpose. And then, either can be used. The guardianship tool, if you will, in the toolbox, is the sledgehammer.

It's the big guns-- and if you need a sledgehammer, to do the job, you need a Sledgehammer to do the job, and you do nothing else, it isn’t going to do it, but, if I need to screw, in a screw, or nail in a nail, and I use a sledgehammer, I can do that. And then the screw or nail might go into the wood, but it's going to cause a lot of other damage that I didn't think about. And so the same thing with guardianship when less restrictive alternatives are available. Yeah, it may serve the purpose but boy it's going to cause a lot of other things that you may not have thought about: All those loss of civil rights you know people doing in your having a conservatorship and then all of a sudden you know it's a it's somebody outside of the house and somebody that's fired to do it and now the spouse doesn't do you know the bank account or you know that you don't think about so yes Guardianship and conservatorship is necessary in some cases. (Pause.)

[Dana, con’t]: if you're talking about your elderly mother who's got dementia and you didn't put anything into place before the Dementia in terms of a power of attorney, or AD. Then your guardianship might be your only option. If you have an individual who doesn't have the capacity to, to enter into an advance directive. They just truly cannot understand the concept of asking somebody else to make decisions for them when they can, then guardianship may be the only option. on [Virginia one day it doesn't mean that they're not going but there are some conditions like you mentioned is Progressive dementia and you know apartment have disabilities] People will sometimes have lucid moments and if you can catch those Lucid moments and talk to them about an advance directive do it but you know you like it and I'm really sad phone call I got several years ago someone had been to one of my presentations and about advance directives and it just so happened that their niece shortly after that was in a serious car accident was on, and the person said how can I get her an advance directive well she is in a coma and so unfortunately that's not the time that it can be done and so you know so if things have not been put into place guardianship may be the fool that needs to be made you can limit Guardianship and conservatorship maybe the person can you do make decisions about where they live. And that's what you think but they really can't make something cute medical decisions when you can have a guardian just for medical decisions the court can limit it and do the Civil Rights we talked about losing.

Then ,the court can protect those right so the court could say and Britney's case but I'm still alive but you obviously driving after that so there are ways to tailor it to what the person needs rather than giving them a full guardianship- and having them lose all of their civil rights. And I do also want to stay when we talked back past you do an advance directive capacity is not an all-or-nothing thing every decision we make requires a different level of capacity capacity is being on the Spectrum and the reason I've been saying this is because I've developed a way to understand the Spectrum-- peas it is a brain tumor. So, here's how that works.

If you can imagine me being in person although I'm really glad you can't cuz I don't look great today but anyway I would be saying that, capacity is like at the floor level and I call that pees because my two-year-old can very clearly decide whether he likes peas or not and communicate that decision to me very clearly whether he likes these are not my three-year-old used to do it by sticking them in her nose to try to hide them. Can I just say hurt her record is 3 of one nostril and they have the capacity to communicate that go all the way up to the ceiling or the sky to brain tumor level capacity! And, that's the doctor has given me a new diagnosis of a brain tumor there are four options for treatment each one of them has pros and cons let me explain this to you. Well, that’s going to take a pretty high level of capacity to understand those decisions and make a decision communicate that much closer to peas then it is brain tumor the person doesn't have to be verbal or non-verbal.

As long as they can communicate someone to help them when I go to the doctor when they have to take medication or they have to have some sort of decision made about their life And, who they want that person to be. I've had people going to pictures I've had people gesture as long as you know that they understand I may need help making decisions and if I do Suzanne to do it then I can execute an advance directive with two witnesses most people say my signature looks like a bark, anyway, so you know. So in advance directive is very clearly a good alternative to guardianship even with folks with limited capacity. I feel very strongly about this! because it is a way to keep families out of the courthouse and is a way people to maintain their civil rights and as much Independence as possible! Thank you so much; free Britney!

And now, a dLCV HIGHLIGHT

State and federal agencies offer lots of options for people with disabilities to seek formal redress of their grievances - but it can be hard to know which agency to turn to when something goes wrong. dLCV has a new resource page to help you learn about formal complaint options for Virginians with disabilities. The page includes information about complaints involving abuse, voting rights, housing, transportation, healthcare and much more. Visit www.dLCV.org/self-advocacy today! Still not sure which complaint option is best for you? Request help by calling 1-800-552-3962 on a Monday, Wednesday, or Friday.

[Enter, again, Virginia Pharis and Suzanne Herbst.]

[Virginia]: Well, thank you one more time to the lovely Dana T, hopefully you guys in listening to this and you're not going to say understand the free Britney movement more because again we are not speculating on her specific situation and none of this necessarily applicable to California or California law but I'm just so happy people suddenly care about guardianship, Suzanne.

[Suzanne]: Suzanne me too and I think this is such a good thing we talked about this a little bit in our prep but a really good way to think about this is but there are a lot of people who have Guardians and there are a lot of people the vast majority of those people aren't as famous as Britney Spears so I'm hoping that people will take their passion and sometimes you do in some situations of their own for this, and really start thinking about guardianship in their state. J

[Virginia]: Yes, and, and if you want to take these things on a personal level we have a supported decision-making portal on our website which is DLCV.Org, and we will be having Dana back real soon to talk about advance directives and other ways to prevent guardianship. In the meantime, thank you all for listening to this episode of Rights Here, Rights Now, brought you by the disability Law Center of Virginia. We are available on Apple Podcasts, Spotify, or where ever you get your podcasts. Don’t forget to subscribe & leave a review.

[Suzanne]: If you need assistance, or want more information about dLCV & what we do visit us online at www.dlcv.org

[Virginia]: Follow us on Twitter @disabilitylawVA. And we are on Facebook at the disability Law Center of Virginia. And, share this with your friends.

[Suzanne]: Until next time, I'm Suzanne-

[Virginia]: And I’m Virginia! And this has been, Rights Here-

[Suzanne]: Rights Now!

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