In 2008, pop icon Britney Spears had a public mental health crisis that led to a court appointing her dad and others to control her social, health and financial decisions.
That conservatorship removed an incredibly broad swath of her rights, rights that she has been fighting to get back.
As the story of Spears’ fraught guardianship continues to grab national attention, Oregon is enacting new legislation to help people facing the prospect of being put under guardianship or conservatorship, in an effort to protect the rights of some of the state’s most vulnerable citizens.
Senate Bill 578, which is set to go into effect at the beginning of next year, will require courts to appoint legal counsel for many people facing that circumstance. It will affect guardianship and conservatorship cases in Multnomah and Lane counties in 2022, expand to Columbia County in 2023 and go statewide in 2024.
The concept of conservatorship and guardianship has gone from a relatively obscure legal process into the mainstream in recent years.
In Oregon, according to Oregon’s long-term care ombudsman, Fred Steele, guardianship covers healthcare, social and nonfinancial legal decision making, while conservatorship covers financial decision making.
A person may have one or both.
“Some guardianships are considered ‘plenary guardianships,’ which is all rights are given to the guardian to make all decisions for that individual,” Steele said. “All guardianships should not be plenary guardianships.”
In a “Last Week Tonight” segment in 2018, John Oliver pointed out that a person under guardianship, ostensibly meant to protect people who cannot make financial and health decisions for themselves, can have “less rights than someone in prison.”
Oregon Sen. Michael Dembrow, a Democrat who represents a district in Portland, had been interested in the process for over ten years. He co-sponsored the bill to guarantee legal representation, which passed both the House and Senate on an overwhelmingly bipartisan basis.
Dembrow said he saw guardianship as a civil rights issue. And for more than a decade, he has worked to make the system better.
As a first-term state senator, during the 2009 legislature, Dembrow said he was asked to join the Task Force on Public Guardianship and Conservatorship. He was a new member of the House Human Services Committee and it was his first task force.
“I came to care very deeply about” the issue of guardianship and conservatorship, Dembrow said.
The ideal outcome of the program, he said, is “keeping people in the least restrictive situation possible.”
“Guardianship,” Dembrow added, “can be abused.”
And, Dembrow said, there are people who are in need of guardianship that do not receive a guardian, people who are without homes or living in hospitals, for the sole reason that they were incapable of making decisions for themselves.
People going through the process need someone who can advocate for them, who doesn’t have other interests, he said.
In Oregon, some counties and courts already appoint a lawyer to represent a person who needs representation during guardianship proceedings.
The new law will codify that process.
“It takes what is currently an informal, haphazard, not fully effective system,” Steele said, and creates “a true rights protection system.”
“Even if the person is going to have to enter into guardianship,” he added, “some part of their rights, at least process rights, will be protected.”
“When you have an attorney brought in early on it’s just inevitable that more careful consideration is going to happen,” Dembrow said.
Through the new law, attorneys will be provided in much the same way the public defender system works, and attorneys will be paid out of the same funds, he said.
“That attorney’s job is to do what’s best for the protected person,” Dembrow said. “That’s going to involve making sure they are getting the care that they need but at the same time making sure their rights are respected.”
— Lizzy Acker