I’m a Slave for You: Ireland’s Wardship System and A Glimpse into Britney Spears’ Conservatorship

I’M A SLAVE FOR YOU: IRELAND’S WARDSHIP SYSTEM AND A GLIMPSE INTO BRITNEY SPEARS’ CONSERVATORSHIP

Eve Reidy

In 2021, the conservatorship of Britney Spears received widespread media attention. Despite public speculation that she was not incapacitated Britney stayed under a conservatorship for 13 years. Spears’ story and the subsequent media frenzy cast a spotlight on the conservatorship system operating in the U.S. Conservatorships and their operation have since come under intense scrutiny with many people asking if such systems exist in their own countries and if they are still appropriate in today’s world. California courts define conservatorship as ‘a court case where a judge appoints a responsible person or organization (called the ‘conservator’) to care for another adult (called the ‘conservatee’) who cannot care for himself or herself or manage his or her own finances.’1 There are an estimated 1.3 million adults in the U.S. under this arrangement with conservators controlling at least $50 billion in assets.2 Ireland operates a wardship system which shares many features within the U.S. conservatorship system. This wardship system is governed by the Lunacy Regulation Act, a 150-yearold law established in 1871.3 Currently, there are 2,124 adult wards of court in Ireland,4 all of whom have lost many of the rights other citizens consider fundamental.

Wards of State complain that the system strips them of their voice.5 When a person becomes a ward of court, the court is vested with jurisdiction over all matters relating to the individual and the individual’s estate. In exercising this jurisdiction, the court is subject only to the provisions of the Constitution.6 In effect, the ward loses their legal agency, meaning they can no longer make decisions for themselves including decisions

1 California Courts, The Judicial Branch of California, ‘Conservatorship’ <https://www.courts.ca.gov/selfhelpconservatorship.htm?rdeLocaleAttr=en#:~:text=A%20cons ervatorship%20is%20a%20court,his%20or%20her%20own%20finances.> accessed 23 February 2022. 2 National Council on Disability, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination (March 22, 2018). 3 Lunacy Regulation (Ireland) Act 1871, s 6. 4 Kieran Dineen, RTE Investigates, The people caught in Ireland’s wardship system(November 10, 2021). 5 ibid. 6 Re A Ward of Court (Withholding Medical Treatment) (No.2) [1996] 2 IR 79. 127

about medical treatment, travel7 and until recently, marriage.8 The lack of financial independence is arguably one of the most fundamental rights lost. All assets owned by the ward are lodged with and controlled by the Office of the Wards of Court9.However, many wards of State claim they do not recall receiving account statements or updates on their bank account.10 Currently, the total fund in Ireland is worth €1.5 billion.11 Two issues with the current system are the rights it impedes and its lack of clarity. The law does not include a definition for ‘unsound mind’ which can give rise to ‘huge difficulties’, as noted by Patricia Rickard Clarke, Chairperson of Safeguarding Ireland.12 Furthermore, a 2017 report carried out by the National Safeguarding Committee heavily criticised the way in which medical assessments are conducted. Reports from General Practitioners assessments have been found to be ‘as little as two lines’.13 The reports also note incidents where respondents have been left with no representatives at hearings.14

Conservatorships as well as wardships, operate under the guise of best intention for the vulnerable person. However, often this intention is not fulfilled especially when family members are put in control, as made evident by the Britney Spears’ case. In Ireland, the National Safeguarding Committee reported that the procedures for the wardship system, rely ‘excessively on the integrity of families…acting in the best interests of vulnerable adults.’15 This reliance was demonstrated in a 1997 case, where the applicant, Mr Heavey, convinced a High Court jury that he was of sound mind and able to manage his personal and financial affairs.16 This was the first time a wardship case had not been held in camera and was therefore open to public scrutiny, like Spears’ conservatorship case. The application for Mr Heavey to become a ward of State only arose due to a family conflict over the deceased father’s will. The fact that this case arose out of a disputed will presents doubts around the integrity and intention of some wardship applications. Additionally, both the US Spears case and the Irish example involving Mr

7 National Safeguarding Committee, Review of current practice in the use of wardship for adults in Ireland (December 2017) 73. 8 Assisted Decision-Making (Capacity) Act 2015, s 7.1. 9 Lunacy Regulation (Ireland) Act 1871, s 49. 10 RTE Investigates (n 4). 11 ibid. 12 RTE Investigates, (n 4). 13 National Safeguarding Committee (n 7) 62. 14 National Safeguarding Committee (n 7) 10. 15 National Safeguarding Committee (n 7) 9. 16 Carol Coulter, ‘Dublin man wins action in ward of court case’ The Irish Times (Dublin, 5 March 1997).

Heavey raise a question on whether conducting such hearings in public affects the outcome.

In 2015, the Lunacy Regulation Act was replaced by the Assisted Decision-Making (Capacity) Act, which aims to bring the wardship system to an end. Unlike the current wardship system, this Act prioritises a person’s will and preferences as opposed to their ‘best interests’.17 However, despite the Act being enacted in December 2015, it has not yet been fully commenced. The most promising change within the Act, the Decision Support Service (DSS)18 has not yet become available to the public. Consequently, 1,877 adults have become Wards of Court since 2016 and are bound into the old system until the DSS opens.19

The new system, once fully operational, will be supervised by the DSS and will operate on a three-tier system where wards will be classified based on their capacity. On the lower tier, wards can appoint a decision-making assistant to help them make decisions and explain complex issues.20 On the middle tier, wards can appoint a co-decision maker who has legal authority to make joint decisions.21 Lastly, on the higher tier, the court can appoint a decision-making representative to make certain decisions on behalf of wards.22 The Act provides for individuals currently in the wardship system to have their capacity assessed and brought under this new statutory framework.

Following pressure from advocacy groups and complaints regarding the delay to certain provisions of the Act, the Government finally approved in 2020 the drafting of legislation which would bring an end to the wardship system. Minister for Children, Equality, Disability and Youth, Roderic O’Gorman and Minister of State with special responsibility for disabilities, Anne Rabitte are responsible for drafting the Assisted Decision-Making (Capacity) (Amendment) Bill 2021 which will amend the Assisted Decision-Making Act 2015.23 Eager to not delay the changes any further, the government has committed to implementing this amendment by June 2022.

17 Áine Flynn, ‘Ireland’s wardship system shares features of Britney Spears’ legal arrangement’ The Journal (Dublin, 17 July 2021). 18 Assisted Decision-Making (Capacity) Act 2015, s 9. 19 Shauna Bowers. ‘Almost 2,000 wards of court since assisted decision laws brought in six years ago’ Irish Examiner (Dublin, 1 August 2021). 20 Assisted Decision-Making (Capacity) Act 2015, s 10. 21 Assisted Decision-Making (Capacity) Act 2015, s 16. 22 Assisted Decision-Making (Capacity) Act 2015, s 36. 23 ‘Bill to end wardship system in Ireland’ Law Society Gazette Ireland (Dublin, 22 November 2021).

Additionally, the DSS is due to become fully operational by July 2022. The proposed Bill includes measures which will bring Ireland in line with the United Nations' Convention on the Rights of Persons with Disabilities in Ireland as the current system is contrary to the spirit and intent of the UN Convention, ratified by Ireland in 2018.24

The reform is arguably long overdue and has received support from activists and legal authorities familiar with the system. Barry Sheridan, Chief Executive of Down Syndrome Ireland, called for the Act to urgently be implemented. Sheridan stated that until the Act is fully implemented it ‘leaves vulnerable people having their capacity challenged using…a 150-year-old law’.25 The Irish courts have also recognised a need for reform. In Re a Ward of Court (No. 2)26 the Supreme Court acknowledged that wardship strips a person of their fundamental right to make choices about their life. Denham J described the right to be treated with dignity as ‘an unspecified right under the Constitution’ . 27 Dignity is strongly associated with the right to privacy as already specified in McGee v Attorney General28 , Norris v Attorney General29 and Kennedy v Ireland30. The courts in recent years have placed a strong emphasis on autonomy as a constitutionally protected value which is inherent on the rights to liberty and due process and indeed it was recognised as a distinct personal right in Re a Ward of Court (No. 2).31 This support from the Supreme Court reinforces the recommendations made by the HSE National Safeguarding Committee in their report and adds legal support to the argument for change.32

Some argue that the wardship systems and others like it are a necessary limitation on personal rights to protect vulnerable adults, but ‘a gilded cage is still a cage’.33 After examining the serious consequences of such a system, it is fair to say that this is in fact a draconian system that fails to respect the dignity and equal rights of persons with

24 Mary Carolan, ‘Ward of court system does not protect vulnerable adults –HSE’ The Irish Times (Dublin, 16 January 2018). 25 Bowers (n 19). 26 Re a Ward of Court (No 2) [1996] 2 IR 79. 27 ibid 79 [351] (Denham J.). 28 McGee v Attorney General, [1974] IR 284. 29 Norris v Attorney General [1984] IR 36. 30 Kennedy v Ireland [1987] IR 58. 31 Re a Ward of Court (No 2) [1996] 2 IR 79. 32 The National Safeguarding Committee (n 7). 33 Surrey County Council v P and Others, Equality and Human Rights Commission and others intervening [2014] 2 All ER 585 [46] (Lady Hale). 130

disabilities. Law should reflect the climate of an era and one can be certain in saying that today’s understanding of people with disabilities is very different to the understanding in 1871. Therefore, it is of utmost importance that the 2015 Act is fully implemented as soon as possible to reflect modern views on disability. This new system will improve respect for fundamental rights by giving control and rights back to the Ward of State.

While the 2015 Act is not perfect, it is recognition of the primacy of an individual’s will and preference and represents a paradigm shift from the paternalistic approach of best interests as applied by the 1871 Act. Nonetheless, it is critical that the government listen to advice and recommendations from both medical professionals and advocates on how to further improve the system and to ensure that any interaction with a person who lacks capacity to decide complies with human rights standards and respects their inherent dignity, including their right to autonomy and self-determination. Never let it be forgotten that ‘people with disabilities, both mental and physical, have the same human rights as the rest of the human race.’34

34ibid 585 [36] (Lady Hale).