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Britney Spears has been subject to an ongoing conservatorship after she was hospitalised for psychiatric evaluation in 2008. Her father, Jamie Spears, and an attorney, Andrew Wallet, were originally appointed as her temporary conservators, but after a court ruled Spears was unable to manage her own estate (estimated at $60 million USD), or make her own personal and lifestyle decisions, this arrangement became permanent.

In 2019, Mr Wallet stood down from his role and Mr Spears was temporarily replaced by Britney’s long-term care manager, Jodi Montgomery.

To this day, Britney’s Conservatorship remains in place and she is still unable to make her own personal, financial or lifestyle decisions. The key details are locked away due to confidentiality orders of the court, despite Spears herself requesting they become public.

What is a Conservatorship and what is #FreeBritney?

In the US, a conservatorship is when the court appoints a “guardian” who manages an individual’s financial and/or life affairs due to physical or mental limitations, such as old age or mental health.

After 13 years, Britney wants to end her conservatorship, as she believes she is capable of managing her own estate and personal matters. The consequent legal battle between Britney and her conservators has drawn the world’s attention to her still being under this form of legal control, which denies her of basic lifestyle and financial freedoms.

Her supporters have come out in droves, starting the #FreeBritney movement, launching petitions for her freedom and inspiring the subsequent 2021 documentary, Framing Britney.

With these movements gaining significant global traction, it has sparked conversation not only about the controversy of Britney’s situation, but about the complexities of conservatorships, disability rights and reproductive freedoms.

In her testimony during a court hearing earlier this month (June 2021), Britney described her conservatorship as “abusive, stupid, embarrassing and demoralising.” She says she continues to be robbed of basic human rights such as being forced to take lithium, forced to work to the point of exhaustion, is unable to marry her boyfriend or remove her contraceptive IUD to try for a baby.

There has been a lot of concern for Spears' welfare in the media following her devastating testimony, and many feel that part of what she is describing is reproductive coercion; behaviour that interferes with the autonomy of a person to make decisions about their reproductive health.

Could this happen to someone in Australia? 

We don’t have conservatorships in Australia, but we do have administration and guardianship orders. These are similar in that they give powers to representatives allowing them to make decisions on the behalf of people who need assistance.

For example, in Victoria, the Victorian Civil and Administrative Tribunal (VCAT) can appoint an administrator and/or guardian for a person living with a disability. However, an individual will only be appointed an administrator or guardian if VCAT rules that they have a disability and are unable to make lifestyle and/or financial decisions, and this is proven with medical evidence.

Given the details relating to Britney’s conservatorship are under lock and key, it is unclear whether she has a disability which prevents her from being able to make her own financial and lifestyle decisions.

Regardless, even if this was proven and she was placed under a guardianship or administration order, it's common practice in Australia that these orders are frequently reassessed and would never be made permanent. Her wishes would also be taken into account regarding who she did or did not want as her guardian. 

What is the difference between a Guardian and an Administrator?

An Administrator makes financial and legal decisions, such as managing property or paying bills.

A Guardian is appointed to make lifestyle decisions, such as decisions about their living and working arrangements and access to people and services. They must follow certain principles, as defined in the Guardianship and Administration Act, to ensure the protection, advocacy and development of the represented person.

A Guardian can also make decisions about medical treatment, but only if the represented person is deemed to lack 'decision making capacity' as defined in the Medical Treatment Planning and Decisions Act (the MTPD Act).

Can a Guardian make decisions about prescribing medication and someone's reproductive rights?

In Victoria, a guardian must comply with the MTPD Act in relation to medical treatment decisions. The Act requires a Guardian (or Medical Treatment Decision Maker) to make medical treatment decisions they reasonably believe the represented person would have made. This includes the decision to consent to or refuse the commencement or continuation of medical treatment.

 The Act states that the guardian must:

  1. first consider any valid and relevant values directive from the person
  2. next consider any other relevant preferences that the person has expressed
  3. in a case where the medical treatment decision maker is unable to identify any relevant preferences, consider the person’s values, whether expressed by the person or inferred from the person’s life.

Therefore, it is likely a guardian or Medical Treatment Decision Maker could make decisions about birth control and prescribing medication, provided these decisions are made in accordance with the MTPD Act.

However, the medical treatment decision making process does not apply to ‘special medical procedures’, such as any procedure that will render a person permanently infertile, or termination of a pregnancy.  In this instance, an application would need to be made to VCAT for this decision to be made. 

Could Britney be forced to continue using contraception if she was under a Guardianship order? 

In short: It's unlikely.

If Britney lived in Victoria, was proven to have a disability, under a guardianship order and lacked decision making capacity in accordance with the MTPD Act, our position is that it is still unlikely she would be forced to continue using contraception, as she has been under her US conservatorship. 

Additionally, her preferences (such as wanting her IUD removed) would also be considered by her guardian. 

Given the media attention of Britney’s story, many advocates have raised concerns about the extent of these guardianship powers in Australia, particularly in relation to women’s contraceptive rights; concerns our society and lawmakers should hear.

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