Britney and banking; Why banks need to be involved in conservatorship reform
The world has been watching as details about Britney Spears’ conservatorship situation have been aired publicly. Many of those reading about or watching her case unfold have probably never heard of conservatorship or guardianship or know little about the intricacies of the probate court system that manages decision making for people who struggle to make decisions alone.
Most people only encounter these types of situations around decision making when their parents, and later themselves, become elderly. While those circumstances can be extremely distressing and complicated to navigate, they are, by their nature, usually linear and self-limiting; most often an elderly person’s ability to make decisions will decline over time, until they finally pass away.
But, as Spear’s case has revealed, when younger people are involved in conservatorship or other third-party decision-making systems, the situation is even more complex. People who have mental health disabilities that may affect decision making often have to navigate these systems throughout their entire adult lives and, as we have seen with Spears, the systems are not entirely beneficent and may result in exploitation, harm, and abuse – the very things that these systems are supposedly set up to prevent.
As a qualitative researcher of the financial problems encountered by people with mental health disabilities (Annie) and a disabled lawyer who represents people with, or perceived to have, psychiatric disabilities (Kathy), we have worked with numerous people who have experienced conservatorship or, more commonly among people whose only income is from Social Security disability benefits, who have been assigned a representative payee.
Conservatorship includes mechanisms both to assign to another person decision making about medical and personal issues (conservator of person), and/or about finances (conservator of estate). Representative payees only manage a person’s finances – specifically their disability benefits (social Security Disability Income – SSDI, or Supplemental Security Income – SSI). We will focus only on decision making about finances here. We acknowledge that substitute decision-making when it comes to medical treatment may result in care manifesting as coercion and control; our systems require additional examination that is beyond the scope of this piece.
Just as much of the narrative around Spears’ situation is deeply polarized, with some arguing that conservatorship blatantly disregards people’s rights and should be abolished, and others arguing that conservatorship is essential to prevent people making disastrous decisions or being exploited, so the options for people who need help with financial decisions are polarized.
Most people with mental health disabilities are left entirely alone to make financial decisions. If they need help, typically their only option is to have financial decision-making power removed from them entirely. They are assigned a conservator or representative payee, and from then on that other person is fully in control of their finances. There really is no in-between.
While it is common for family members to step in and try to help, such informal arrangements can cause relationship tensions, and can leave people vulnerable to exploitation. In Connecticut, we do not currently have effective systems to accommodate and support what is known as ‘supported decision making’ around finances. While there is nothing in Connecticut law that would prohibit someone executing a supported decision-making agreement, there is no law that specifically authorizes it either, and there is no requirement that it be one of the alternatives considered before a probate court authorizes a conservatorship.
While enormous progress has being made in several states to expand supported decision-making options generally, much work remains to make that a viable option when it comes to financial decisions.
There is no doubt that some people with mental health disabilities need help managing their money; indeed, some may experience difficulties such that it does make sense for another person to take over their finances for a period of time. However, many people who face difficulties managing their money could, with the right support, take responsibility for some aspect of their finances.
Some people have health conditions that mean that their ability to manage their finances fluctuates – so they need support that can vary accordingly. Many people on SSDI and SSI who are struggling with their finances face difficulties not primarily because they have a mental illness, but because they are poor. It’s difficult for anyone to be financially stable when they simply don’t have enough money to get by. Problems such as falling behind on rent and bills, or being taken advantage of by predatory lenders, may be more closely correlated with the condition of poverty than with any diagnosed mental illness.
We need a system of support that meets a wide range of needs, including complete removal of control, periodic removal of control, help with some aspects of finances but not others, and assistance and advice that does not involve or require removal of control.
We also need to bring in the banks. Even though most of us manage our money using an account at a financial institution, banks and credit unions have been strangely absent from the conversations about supported financial decision-making. Currently, the banking system makes it very difficult to do anything other than either be 100% in control of your own money or have someone else be entirely in control.
To address this, our report, Banking for All, recommends that banks develop tools to provide a framework for supported decision making. These could include a view-only option, to allow a person to give permission to a third-party to view their transactions, or receive alerts in case of certain spending behaviors, but not to actually control the funds. This option could also be used to enable a person who has handed over financial control to someone else to keep an eye on their funds. Banks and credit unions should also offer tools that make it easier for people to manage their own spending behavior, such as the ability to self-set limits on the amount of money that can be spent a day, or where money can be spent. Customized alerts can also help people keep track of their finances. Banks should also offer accounts that do not charge overdraft fees, such as those promoted by the BankOn movement. All of these recommendations could be implemented immediately, given existing technology and regulations. Our report also outlines possible future innovations that would be helpful, such as cooling off periods, double confirmation of transactions, and algorithms to predict and preempt certain behaviors.
These financial products and tools could have specific benefit for people with mental health disabilities (and, we suggest, may also be a requirement for financial institutions to conform with the Americans with Disabilities Act). However, these are not niche products. They could also make banking better for everyone, particularly people who are low-income. Just like the cutaway curb, which was designed for wheelchair users but is now an essential element of pedestrian infrastructure that keeps us all safer, banking designed with the needs of people with mental health disabilities will be banking that is better for us all.
This piece is dedicated to Paul Hammer, a friend and colleague who recently passed away by suicide, after an extraordinary life of action and activism, including in the area of financial justice for people with disabilities. He contributed to the Banking for All report and participated with us in a panel discussion of its findings, at which he shared his own personal experiences of having a conservator.
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