A “guardian” of an adult is a person appointed by the court who is responsible for the personal affairs of an incapacitated adult, including responsibility for making decisions regarding the adult’s support, care, health, safety, habilitation, education, therapeutic treatment, and residence. A “conservator” is also appointed by the court, and is responsible for managing the estate and financial affairs of an incapacitated person. In some states, a “conservator” is called a “guardian of the estate” and the “regular” guardian is called the “guardian of the person.”
When we think of legal guardianship or conservatorship, several scenarios typically come to mind: an elderly parent with dementia; an adult who has been severely injured and can no longer take care of himself; and, increasingly (especially for troubled celebrities), young adults who are making unsafe, dangerous, or destructive decisions – decisions that often involve alcohol or drug abuse, quite possibly along with an underlying mental illness. This latter category has made headlines in recent years thanks to celebrities such as Britney Spears, Lindsay Lohan, and, most recently, Amanda Bynes.
The key question is whether the person’s behavior is bad enough to justify taking away her personal liberties and overruling her individual rights. In this series, we will explore these celebrities and their loved ones’ efforts to obtain guardianship and conservatorship to protect them from themselves.
Part I: Amanda Bynes
Amanda Bynes was born on April 3, 1986 in Thousand Oaks, California. She is the youngest child of Lynn, a dental assistant and office manager, and Rick Bynes, a dentist.
In 1993, Bynes attended a comedy camp, and began professionally acting at the age of seven. She appeared in commercials, stage productions, and television shows, landing her own hit variety program, The Amanda Show, on Nickelodeon when she was 13. She subsequently went on to star in a TV series, What I Like About You, and several movies, including What a Girl Wants, Hairspray and She’s the Man. Her last film credit was 2010’s Easy A, which starred Emma Stone. Since then, she has publicly stated that she is retired from acting.
Her legal troubles began in March 2012, when she was stopped and ticketed by police for talking on a cell phone while driving. A month later, she was arrested and charged with driving under the influence after side-swiping a police car in West Hollywood. In September 2012, Bynes was charged for two alleged hit and run incidents, one occurring in April and the other in August. The hit and run charges were dismissed in December 2012 following a financial settlement between Bynes and the victims. Bynes’ driver’s license was suspended by the California Department of Motor Vehicles and she was cited for driving with a suspended license, and her car was impounded. In May 2013, Bynes pleaded no contest to the charge, and was sentenced to three years probation. The charge for driving under the influence is still pending.
In April 2013, Bynes announced via Twitter that she has an eating disorder.
In May 2013, Bynes was arrested at her home in Manhattan for criminal possession of marijuana, tampering with evidence, and reckless endangerment. Following her arrest, Bynes underwent a psychiatric evaluation at a hospital before she was processed at the police station. She said on Twitter that she had been sexually harassed by the arresting officer, but the police department has denied the accusation.
Last week, Bynes was hospitalized and held for an involuntary mental health evaluation after allegedly starting a small fire in the driveway of a stranger’s house in Thousand Oaks, California. During the fire, she reportedly ignited her pants and doused her pomeranian dog with gasoline. After fleeing the scene, she entered a local convenience store, entering the employees-only section behind the counter and attempted to wash her dog before being forced to leave. Bynes was shortly thereafter apprehended by authorities.
Her family has become increasingly concerned with her erratic behavior and has expressed that she might be suffering from schizophrenia. “Amanda has heard voices for years, and was concerned she was being spied on via smoke alarms and clocks in her home,” her parents said. “She would cover electronic items because she believed that was the only way she wouldn’t be spied on. It’s an extremely sad situation, because Amanda just refuses to get help.”
Bynes’ parents recently met with lawyers to explore the possibility of getting a conservatorship in California. They were told they’d most likely be unsuccessful because the actress didn’t meet the state’s strict criteria. They were advised that even as disturbing as her behavior is, it’s very unlikely that a judge would sign off on a temporary conservatorship because “Conservatorships are very hard to get, and being mentally ill and addicted to drugs isn’t enough. Amanda hasn’t ever been to rehab or ever agreed to see a mental health professional.” When Bynes’ parents confronted her several months ago with their concerns, she left Los Angeles and moved to New York, leaving their relationship extremely strained.
Bynes’ parents face significant legal obstacles if they continue to pursue a guardianship and conservatorship for the troubled actress, and her recent move to New York City has made the process even more difficult for them. Under New York law, Bynes could have the option of having a jury of her peers decide if she is in need of having her parents take control of her life. In the California courts, a judge signs off on the conservatorship. The thought of having a public jury trial to determine if Bynes is unable to take care of herself — and the media firestorm that would ensue — gives her parents cause for concern.
Under the New York state Mental Hygiene Law Article, 81, a family member typically files to be appointed as the guardian, and the person in need of it is called an “Alleged Incapacitated Person.” While the petition is pending, the judge can appoint, on a temporary status, a guardian who can be given authority over the person’s needs and finances. Bynes’ parents “would want control over her person and finances,” family sources say. “They wouldn’t want to be paid for their services, and this isn’t about getting access to Amanda’s money. Their first concern is getting her to a mental health professional, so she can be properly diagnosed and begin the appropriate treatment.”
Guardianship is an extreme form of intervention in another person’s life because control over personal and/or financial decisions is transferred to someone else for an indefinite, often permanent period of time. Once established, it can be difficult to revoke. Therefore, guardianship should only be used as a last resort. There are times when a person might need a guardian, but can be served in a less restrictive way. Here are some alternatives to guardianship:
- A Durable General Power of Attorney authorizes your Agent, sometimes called an Attorney-in-Fact, to act on your behalf and sign your name to financial and/or legal documents. The Financial Power of Attorney is an essential tool in the event that, due to age, illness, or injury, you are unable to carry on your legal and financial affairs. Having a Financial Power of Attorney will generally avoid the need to go through the time-consuming, expensive, and publicly embarrassing process whereby someone has to go to court to have you declared mentally or physically incompetent and then one or more persons need to be appointed to serve as your legal guardian and/or conservator, which process is subject to ongoing court supervision.
- An Advance Medical Directive, incorporating a Medical Power of Attorney, authorizes another person (called your “Medical Agent”), to make decisions with respect to your medical care in the event that you are physically or mentally unable to do so, as certified by two physicians.
- A Living Trust is a legal entity which is capable of owning financial assets, real estate, and/or other property. A living trust is a trust that comes into existence during your lifetime. The main feature of a living trust is that the trustee is not accountable to the court, and therefore not subject to probate. A Conservator, on the other hand, is accountable to the court and subject to ongoing probate for the life of the Ward. Most people therefore use a living trust as their primary estate planning tool in order to make things easier for their trusted loved ones by avoiding the time and complications of probate.
(Copied from an email from The Law Firm of Evan H. Farr, P.C. in Fairfax Virginia)