Readers with a penchant for celebrity gossip will remember the crazy days of 2007-2008, when Britney Spears appeared to suffer a very public breakdown (shaving her head! attacking a paparazzo with an umbrella!) that ultimately resulted in her being placed under a conservatorship. Britney’s father, Jamie Spears, has been her primary conservator for the past 12 years. The conservatorship has continued to make news over the years, with the #FreeBritney movement gaining traction and the ACLU even offering her legal assistance. Most recently, Britney’s lawyers have asked the California court overseeing the conservatorship to make significant changes to the conservatorship, including granting her the ability to nominate her own conservator and unsealing the file. In response, Jamie has argued that before ruling on her requests, the court must determine whether Britney has the capacity to understand the consequences of unsealing the file and the related waiver of her privacy rights.

So what does the California conservatorship of a pop superstar have to do with conservatorship litigation in Colorado? It serves as a reminder that, while a protected person does have the right to weigh in on their own conservatorship, those rights are limited by their capacity to make and understand the consequences of their decisions.

Under C.R.S. § 15-14-413, a person nominated as conservator by the respondent in a protective proceeding has priority for appointment over all nominees other than a conservator who has already been appointed. The respondent’s nomination, however, is only given priority “if, at the time of the nomination or appointment, the respondent had sufficient capacity to express a preference.” The same priority applies for the appointment of a guardian under C.R.S. § 15-14-310.

This rule was examined by the Colorado Court of Appeals in In re Estate of Runyon, 343 P.3d 1072 (Colo. App. 2014). The court confirmed that a respondent’s nomination of a guardian or conservator is only entitled to priority if the respondent had sufficient capacity to express a preference at the time of making the nomination, but also clarified that the fact that a respondent needs a guardian or conservator does not necessarily mean that he lacks capacity to nominate the fiduciary. The court explained that “[n]either the definition of incapacitated person nor the criteria for appointment of a conservator automatically exclude the ability to make a rational choice as to the selection of a guardian or conservator. Therefore, an incapacitated person may still be able to express an intelligent view as to his choice of guardian, which view is entitled to consideration by the court.” Id. at 1077 (internal citation and quotation omitted). Because the trial court did not make findings about the respondent’s capacity to nominate his guardian and conservator at the hearing, the case was remanded with directions that the trial court hold an evidentiary hearing to determine whether the respondent had sufficient capacity to make the nominations. Id. at 1078-79.

Practitioners should, therefore, keep in mind that while it is the best practice to consult with the respondent about his choice of guardian or conservator, the respondent’s choice is not always entitled to deference and may result in additional litigation if his nominee or capacity to make the nomination is questioned.