Episode 22 - Free Britney! Conservatorship and Disability

Transcript

Ellie: 0:07

Hi, I'm Ellie Anderson,

David: 0:09

And I'm David Peña-Guzmán. Welcome to Overthink.

Ellie: 0:12

The podcast where two friends,

David: 0:14

who are also professors,

Ellie: 0:16

put philosophy in dialogue with the everyday.

David: 0:18

Because big ideas are within everyone's reach.

Ellie: 0:31

David, have you watched the Britney Spears documentary?

David: 0:34

Me and everybody's grandmother. Yeah, when I was young, I used to be a huge Britney Spears fan. And one thing that I should clarify is that this happened when I lived in Mexico. And so me and all my friends in middle school were listening to Britney Spears nonstop after school, but obviously none of us spoke any English. So we would just parrot the words and essentially create what we thought was the proper meaning of her music. So we would invent the words. Yeah. Well, I don't remember the details, but phonetically we would translate whatever we thought her word sounded like into something equivalent in Spanish and then just riff off of the possibility that that's what she was saying.

Ellie: 1:18

Oh, my God. I feel like somebody in Comp. Lit needs to write a paper about that, "Translation Errors in Teen Listening to Britney Spears."

David: 1:25

Yeah, definitely lost and found in translation.

Ellie: 1:31

"Toxic or Stronger? Queer Teens in Mexico Translating Britney Spears."

David: Hyper-textuality: 1:37

The Experience of the In-between Through Britney."

Ellie: 1:45

I have vivid memories of making up choreographed dances to "Stronger" in my bedroom when I was in middle school, and it's wild to think that our childhood popstar has been so unjustly treated.

David: 1:56

Yeah. And one of the things that the documentary really highlights and drives home is the fact that because of the legal situation that she finds herself in, she literally can't leave her house or have friends over without her father's permission. This is Britney's legal reality.

Ellie: 2:14

And this legal reality is due to the fact that her father has a legal conservatorship over her. And I really didn't know that much about the concept of conservatorship before watching this, which I think is true for a lot of people. Yeah. And so for the past 13 years, Britney's father has been able to direct her life and her finances.

David: 2:32

One of the things that's really interesting is that this documentary is having a political effect because now a couple of Republican, of all things, politicians are calling for the judiciary committee to hold a hearing on the nature of court order conservatorships. And those two people are Jim Jordan, who is a representative of Ohio's fourth congressional district, and Matt Gaetz, who is from Florida's first district. And so this documentary is the unlikely perfect storm that is bringing together the most unlikely political actors, right? You have the feminists making a criticism of the way in which this is being used to take away a woman's freedom, then you have basically 99% of gay twinks who are just really fucking pissed that Britney Spears is being controlled by her father. And then you have the libertarians. What other issue brings these people do the same table? I don't know.

Ellie: 3:28

God, yeah. All under the guise of this autonomy, right.

David: 3:31

Yeah. It's like don't tread on Britney, bitch. #FreeBritney.

Ellie: 3:40

Free Britney!

David: 3:41

Free Britney! Free Britney!

Ellie: 3:47

Today, we're talking about conservatorship. Where does this legal mechanism come from, and how is it used in practice?

David: 3:53

What assumptions are built into it, and what does the recent attention to Britney's relationship to it tell us about our assumptions about who is, and isn't, a legitimate candidate for legal conservatorship? So Ellie, what is a conservatorship?

Ellie: 4:15

A conservatorship is a legal relationship in which an adult is deemed unable to take care of their own affairs. They're put under the care of a legal guardian, basically, who then takes control of their lives. And under California law, which is the law that governs Britney's case, there are two different types of conservatorship. You can either be the conservator of the person, which means that you're taking care of someone's personal needs, such as their physical health food and their shelter. This is really common for elderly folks who are unable to take care of themselves. So a conservator might move them into a home, have them prescribed medication by a psychiatrist. And then the second kind of conservatorship is a conservator of the estate. This is when somebody else takes care of your finances, your properties, and other various sorts of holdings. Now, a lot of conservatorships are called general conservatorships and that's a combination of these two types. That's what Britney has. Her father is both the conservative of her person and the conservator of her estate, which is actually pretty unusual for someone of Britney's age.

David: 5:17

And both of these types of conservatorship typically result in a significant loss of agency for the conservatee. But this seems to be the case especially in conservatorships involving somebody's personhood, because we're talking here about a legal status that is defined by a radical loss of agency and independence for the person who is being quote unquote conserved. It's almost as if the conservatee finds themselves in what the Italian philosopher Giorgio Agamben calls us state of exception, which is a legally produced, extra legal space in which normal rights and productions are suspended and you are left in a legal and political limbo from which it's exceptionally hard to get out.

Ellie: 6:01

Yeah. And in fact, in the documentary, one of the members of Jamie Spears' legal team discussed how she has never seen someone get out of a conservatorship such as Britney's. So what kinds of rights has Britney lost? What is the control over her life look like? Let's hear this clip from the documentary.

David: 6:52

Listening to this I just cannot but notice that contradiction in the fact that under the conservatorship, Britney is on the one hand deemed unable to take care of her own personhood and her own finances, and yet part of the agreement is that her conservators can nonetheless arrange TV appearances, radio interviews, uh, tours for Britney. So she's on the one hand being told that she is unable to be a functioning adult by whatever standard that's decided, and on the other hand, that the people who are now given control over her life can make those same decisions for her.

Ellie: 7:32

Yeah. I mean, it's almost as if she's put in this position of being a kind of talking monkey, right? She's the toy of her conservators. And, you know, it's very clear within the documentary that Jamie Spears has a vested financial interest in this, right. There's a lot of speculation that he's purely doing this for money and not out of Britney's own interests. And the technical rationale here is that Britney had a very publicized mental health crisis, right, those images of her shaving her head or taking a bar to the paparazzi's car. I think, you know, the technical defense of Britney's conservatorship is that she is unable to care for herself because of mental health challenges.

David: 8:16

Yeah. And I wonder thinking about that mental health challenge, how much of that is a crisis that she had versus a crisis that was in fact produced by this larger apparatus of the media and a paparazzi culture? Because one of the things that the documentary makes very clear is that Britney's ascendancy to fame coincided with this moment in American history, which is the birth of the paparazzi figure, which is different than the photographer, right? So we have the paparazzis, who start hassling people, following them everywhere, trying to get their compromising pictures. And in the public eye, it is the paparazzi that creates a collage of this figure and when we think about what we associate with that so-called mental breakdown or emotional crisis, it's her hitting a car in frustration and her shaving her head.

Ellie: 9:05

Yeah.

David: 9:05

That's what it amounts to. So it seems like a socially constructed image to me.

Ellie: 9:09

Absolutely. And, you know, I think it's relevant to consider, what does autonomy look like for someone who from a very young age, right, Britney was a child star on the Mickey Mouse Club, has always been in the public eye? There's a potential argument to be made that she never really had the freedom to construct her own sense of self outside of the public eye to begin with. And so it's perhaps no wonder that she finds herself having this sort of crisis of autonomy. And I think a lot of folks saw that mental health crisis as an assertion of autonomy, right? It's like, we're finally seeing the real Britney and you know, I'm not really in a position to say either way. And I certainly do think that people can have severe mental health challenges and also have the ability, right, to make decisions for their life, like decisions about their lives, right? Like this is, this should be obvious. But you know, it seems like a very complicated case here.

David: 10:07

Yeah, because we love our stories of the fallen Disney princess, right? Like these up and coming, beautiful white women who then rebel when they're about 14, 15, think ahead to somebody like Miley Cyrus, and maybe if the case of Miley Cyrus had happened at the same historical moment, maybe, just maybe, it would have been coded in a similar way as evidence of a quote unquote mental breakdown. But as you point out Ellie, we're dealing with somebody who, from a very, very early age, is sort of torn apart by all these competing forces because of the capital value that they represent. They are treasure troves that will make somebody or other millions of dollars.

Ellie: 10:47

Exactly. And, you know, I was a little bit worried about some of the rhetoric around Britney Spears that came out to the effect of like, "Look, she's able to go on tour, so obviously she can take control of her life," because I think that tends to sort of reduce people's mental health challenges and make it seem like, "Oh, if you can go on tour, you can take care of all the other things in your life," which isn't the case for some people. At the same time, even if there is a case to be made that Britney needs help with taking care of her estate and or her person, I think it's really clear from the documentary that Jamie Spears is not the person to provide that help, right.

David: 11:23

Oh, no, he's like a creep.

Ellie: 11:24

Yeah. It's very hard to come away from that documentary and think like, "Oh yeah, has Britney's best interest in mind."

David: 11:30

No. And there is a moment in the documentary when somebody who knew the family from an early stage is asked to comment about Jamie's character. And all the woman says is, "Look, the only thing I will ever say about Jamie is that from the moment it became clear that Britney was a very talented young woman, all he could say is that one day she was going to buy him a boat. And that's all I'll say about that man." It's heavy because you get the sense that even her father, right, somebody who is supposed to love her and protect her and support her, suddenly becomes this major obstacle, not just to her success, but to her autonomy. We're talking about a very basic dimension of human, political, and social life that is being denied to this woman.

Ellie: 12:18

Definitely. And this is a legal version of what's called an ethics paternalism, this idea that you are making somebody else's decisions for them because you have the authority to do so. Paternalism comes from the Latin word for father, pater, right? And so the father, the traditional head of the household, makes decisions say for the wife and children. And interestingly, in this case, Britney's paternalism is quite literal, right? Her- it is her father who is her conservator. Oh, a pater. Um, yeah, and you know, this is actually, uh, even though paternalism has a very long history in moral philosophy, the actual legal case of conservatorship is pretty recent. It didn't really exist before 1957. Prior to that, you could be the guardian of somebody's estate or the guardian of the person, but you couldn't have this general conservatorship that Britney has. Part of the issue with the general conservatorship is that it gets really tricky to figure out whether the conservator has the person's best interest at heart, because as the guardian of their finances, they can also pay themselves to take care of their person.

David: 13:30

Not just they can, they do. It's part of the agreement. And so it's important to note that in a legal conservatorship, from the law's perspective, you are literally an adult child. So even if it's not your biological father or your adoptive father, whoever becomes your conservator assumes their responsibilities that in traditional moral and political theory are attributed to that pater figure. And I think the Britney case just captures this because it's her father, literally, who is in charge, not just of her finances, but also of her personhood. What we saw in that clip is that he can cancel her credit cards at any moment that he decides. He can decide what kinds of doctors and nurses tend to her and what kinds of medical care she receives. He can decide who visits her. And so it's a very, very controlled legal relationship. And this goes all the way down to her social needs. Things like transportation, recreation, even what she can wear can be manipulated by appeals to the need to protect her image, which is then part of this larger brand.

Ellie: 14:38

And he also controls her language, what she can say in public. And this is really interesting to me because, like a lot of people, I developed an obsession with Britney's Instagram for a while. She posts these really bizarre kind of videos of herself dancing and she has like her sweet cutesy Britney voice that we all know and love. And a lot of people actually took to decoding her Instagram posts and trying to see whether she might be providing some secret messages to her fans, through her use of like butterfly emojis and flower emojis, or her outfits, the colors she's wearing. And so here, I think we see that a lot of Britney's fans are trying to read a subversive rebellion to the conservatorship in her very Instagram posts, because her explicit language cues and her explicit relationship to the press cannot go against what her father wants, cause he controls all of that.

David: 15:34

Yeah. And it has to do with the fact that her public speech is being controlled. So when we think about paternalism, it really is paternalism in the Classical Aristotelian sense, because for Aristotle, the parent -child relationship isn't primarily an emotional one or an affective one. Aristotle says the parente-child relationship is a political one. It is about one party governing the other and ruling it. And that is effectively what Jamie Spears does. He governs his daughter through conservatorship all the way to the domain of her discourse.

Ellie: 16:10

And he certainly doesn't seem like a benevolent ruler.

David: 16:13

No, I mean, he's definitely the villain in this story. Although a villain with the name Jamie, which is just kind of weird.

Ellie: 16:20

Which is also my dad's name too interestingly, but I'm thinking here paternalism gets a bad rap.

David: 16:26

Wow.

Ellie: 16:28

Obviously as a feminist philosopher, I'm very troubled by like the patriarchal connotations of it, right? Like it's hard to defend paternalism as an authoritarian legal relationship that a male head of the household has over dependents, like.

David: 16:43

Is there a but coming here?

Ellie: 16:47

Maybe.

David: 16:48

Go for it. I want to hear this.

Ellie: 16:50

You know, you mentioned earlier, David, this sort of libertarian strand of the free Britney movement. And I think sometimes we assume that the alternative to evil paternalism of the Jamie Spears type is simple autonomy over everything in your life. And, you know, actually from a feminist perspective, I think that is a false dichotomy. And I'm not necessarily saying that paternalism should be rescued, but there is something to be said for recognizing that we, as humans, are dependent on each other. We sometimes do know what our loved ones need better than they do themselves, right. We accept this with children for instance. And there are cases when folks are best served by others making certain decisions for them.

David: 17:36

So I think this is tricky on the one hand, because I think this clearly is not the case for that, right? Like I don't think the relationship between Jamie and Britney Spears is one of recognizing our mutual relationship to one another. In fact, it seems to be a pretty clear cut case of a father wanting to control every detail of his daughter's life, and taking advantage of a legal mechanism that is founded on a logic that takes us back, if not to the 1600s, even further to the fourth century BC, as we've seen with Aristotle, to the notion that somebody's authority is justified merely by the fact that they are in the position of the pater, right? And so it brings with it the infallibility of the father, the omniscience of the father, um, which are all features that in a theological context, we project onto God.

Ellie: 18:32

I see. So it sounds like what you're saying, David, is that yeah, sure, humans are interdependent. And there are cases when we need to be able to care for loved ones, perhaps even through certain legal arrangements, but this paternalistic arrangement is not a good example of that, even beyond Britney's case, because it doesn't actually recognize the interdependence of all humans. It recognizes that one person is autonomous and independent and that the other people are dependent on that.

David: 19:00

Exactly. And so it misses the inter dimension. And, uh, I mean, when I think about the early modern period, the- yeah, that's exactly right. And I think this is why, uh, for example, social contract theorists in the 1700s, people like Locke and Hobbes, when they're trying to figure out what kind of power is justified in society, all of them come out against this other guy, Robert Filmer, who is the 17th century's spokesperson for paternalism and who says, "Hmm, I think the father is always right, and that's where all legitimate exercises of authority come from, from father figures." And they all say, "That's too arbitrary and that's too one sided," and then they go in the direction of social contract theory, which maybe you and I also have critiques of. But I don't associate paternal care with paternalism. For me, those two are very different.

Ellie: 19:58

Definitely. And I think what you just articulated, David, highlights the false dichotomy I see between paternalism and libertarian, you know, obsessions with pure autonomy, because I think, you know, with social contract theory, you do have a recognition that we are all dependent on each other, and that ironically, paradoxically, independence comes through that, right. I can depend on you not to harm me. And that makes me more independent. An issue there, of course, is that with something like social contract theory, there's a presumption that all people are sort of equal, equally autonomous, equally free, equally moral and rational, that you know, is just somewhat naive. And later I'd really like to think about another alternative to this, which would be a care ethics perspective, recognizing the interdependence between humans.

David: 20:52

And I think this is what makes legal conservatorships so bizarre, because it seems to be a regression within the domain of neo-liberalism, within the domain of social contract theory, to that older form of political power, which is paternalism. So it's almost as if paternalism never went away. And even though we've shunned it as a form of social organization where literally fathers legally ruled their daughters, in the case of legal conservatorship, that's how it's defined. That's how the law deems it.

Ellie: 21:25

Wow. It's like the old law of coverture, which gave husbands dominion over their wives. But now we're saying like, yeah, there are some cases when something like coverture is justified.

David: 21:37

Yeah, and part of the problem is that sadly, we don't even have good statistics about who enters into these legal relationships. Currently, there is no state level guardianship data for the majority of the states where conservatorships can happen. Not only are the conservatees themselves in a legal limbo, but we, as a society are unaware of how many of these arrangements there are, that seem kind of regressive, and that as we've noted, really take away somebody's autonomy.

Ellie: 22:07

Yeah. And I mean, one of the really troubling things here is that it's really hard to get out of conservatorships, but it's troublingly easy to get into them. You can be put into a conservatorship without even being informed. So actually the Los Angeles Times reported that between 1997 and 2003, 56% of conservatorship cases were granted without any notice to the individual or the family. And, you know, nowadays, the AARP estimates that about 1.5 million adults are under conservatorship. And so, you know, that data that I mentioned from LA Times is a bit old now, but we can say that if that data has any resemblance today to what it was then, there are hundreds of thousands of Americans who are under conservatorships that they did not ask to be put in, and that their families didn't even ask for them to be put in.

David: 23:01

It's almost like the experience of being thrown over the precipice, where somebody throws you, you didn't even see who it was because somebody can put you in it without even informing you, right. Somebody knows you, Ellie, and they go behind your back to a judge. They make the case that you are unable to take care of your own affairs. The judge, without talking to you, decides that they agree. And suddenly, you're a conservatee. You're falling and you can't pull yourself out because how do you convince somebody that you are indeed fit for something for which a court has deemed you unfit? It's a really tough catch 22 situation.

Ellie: 23:59

The Britney case has put conservatorship on the map. It's become mainstream to talk about. But some people have argued that our obsession with this particular case is indicative of a larger problem. We're like, "Oh my God, now that it's happening to Britney, it must be bad," but conservatorship is nothing new. It's been used for decades. And it especially exploits the elderly and those with disabilities, but it's only when a famous, beautiful, young, white blonde woman falls into it that we suddenly have all this moral outrage at the fact that this legal relationship exists, or come to realize that it exists at all.

David: 24:34

Yeah, no, that's right. And Sarah Luterman has written an article about this in the New Republic, and her piece is entitled "The Darker Story Just Outside the Lens of Framing Britney Spears." And she points out that most people think of legal conservatorship as something that is exceptional, that never happens. It's the most unreasonable, unthinkable, thing that we cannot even fathom. But in fact, it is quite common. You just have to know where to look. And she says the real story about conservatorship and its abuses isn't Britney, but what she calls, and I really love this phrase, the school to guardianship pipeline that people, especially with intellectual and developmental disabilities, are funneled into from the moment they're born, right. It's almost as if conservatorship, because of the organization of our society, is already destined for them, or that they are destined for.

Ellie: 25:33

That's really interesting because conservatorship is explicitly set up for adults, right? There's a distinction between the guardianship of a minor and the conservatorship of an adult, and that distinction was part of the reason that conservatorship became an explicit legal designation in the 1950s. And so I'm thinking about how a lot of people make the assumption that this kind of conservatorship relationship makes sense for those with disabilities. But to what extent is that only because of abelist assumptions that we have about the kinds of lives that people with disabilities can lead, right. In some ways we're outraged not so much that Britney is under a conservatorship, but that she's being treated as disabled, when she doesn't fit our idea of what a disabled subject looks like.

David: 26:18

Yeah, I think you're hitting a really important point here, Ellie, which is the assumption that we bring to the table when we talk about and debate conservatorship, because it's almost as if we're having this second order debate about is Britney the kind of person who falls into this category of the disabled or disability. And what we should be doing is having a first order discussion about why conservatorship exists in our legal system at all, and who gets trapped in its maw - because it does devour subjects.

Ellie: 26:51

And when people are saying like, "Oh, but she can go on tour." What they're really saying is, "Oh, but she doesn't have a disability or she shouldn't be considered disabled."

David: 26:59

And I think this is an important point which is that the film itself says nothing about disability. And that is part of the problem, right? It's like talking about laws about fracking, but never mentioning oil companies. Uh that's essentially- that's essentially what the film does, uh, because when we think about the statistics, the statistics are very clear. People like Britney who are not deemed elderly, who are not deemed disabled, rarely fall in this legal arrangement, but people who are deemed elderly, people who are deemed disabled, fall into it all the time, and there is nothing exceptional about that. We just haven't known where to look.

Ellie: 27:40

So what are some of the arguments that disability activists have against conservatorship in general? Because these arguments aren't just suddenly appearing with the case of Britney, right? There've been discussions about them for decades.

David: 27:51

Yeah, I think one of the most important points turns on that distinction that disability advocates often make between the medical model of disability and the social model of disability. And the argument goes something like this: disability is not a medical thing that befalls people. It's not a personal tragedy. It is a social, institutional, culturally created reality. You are not disabled because of the body that you have, because of the mind that you have, you are disabled rather by your social circumstances. And so if we had, in place, a set of social norms, social practices, social institutions that actually allowed all kinds of people to lead rich and fulfilling lives, then we would get rid of this category of the disabled. And so the argument is that conservatorships naturalize disability in a really problematic way that trades on this notion that the disabled just lead sad pathetic lives. And again, they must be put into that category of the legal child who must be ruled by somebody else, decisions must be made by somebody else, actions must be made by somebody else because they are in capable.

Ellie: 29:08

So disability has to do with the affordances that our environment provides rather than something that is intrinsic to an individual subject. So a wheelchair user is disabled by the society that is not set up to their mobility needs, right, through the absence of ramps or something of that sort. And, you know, I think it's interesting to think back on what you were saying earlier, David, about the narrative that Britney's mental health challenges emerge out of her child stardom, her relation to the paparazzi, her inability to have a private life, because that actually can fit into the social model of disability. So it's not a simple choice between either Britney is disabled or she's in an unfair legal conservatorship; rather, both of those things are true and they bear a reciprocal relationship to one another.

David: 30:03

Yeah. And I think the assumption there is precisely that if you were disabled, then being in a legal conservatorship would somehow be automatically justified.

Ellie: 30:13

Exactly. Exactly. And I think that the discussion of disability encourages us to rethink how we define autonomy too.

David: 30:21

Well, there are some disability rights advocates who are calling for new models of autonomy in which you're not autonomous simply because you single handedly can do all the things that you want to do, but on the basis of what is sometimes called assisted autonomy or distributed autonomy, uh, which has to do with having a care network or a social network in place that allows you to engage in projects that you deem enriching for your life, things that you value, things that you want to pursue. And once you define autonomy, again, not as something that is a property of the individual, but of their social context, then you have a fully new interpretation of the kinds of lives that disabled people live and have lived and can live.

Ellie: 31:07

Yes. And David, I think the way that you just put that, I think that's what I was trying to get at in talking about there being a kind of kernel of truth to paternalism, which is our interdependence. And it sounds like this is an alternative model of autonomy that offers ways of recognizing that autonomy doesn't simply just mean separation, full control over yourself, right? Like none of us has full control over ourselves. And so we shouldn't be defining autonomy as self control. I like that idea of distributive autonomy or assisted autonomy.

David: 31:43

If you think about- yeah, I mean, if you think about technologies for assisted communication, where somebody with difficulties communicating through typical modes of speech might have a machine, like a keyboard, that then they operate not by themselves in the same way that, for example, I use my keyboard on my computer, but with somebody that they already have a relationship of trust with, and together they're able to form some kind of meaning that allows the person to express their agency, even if it is not ultimately an individualistic expression. Whatever is produced is a co-creation, but it does lead to the enhancement of that person's agency.

Ellie: 32:28

Okay. Yes. And I know that there have sometimes also been worries from a legal standpoint about cases in which the caregiver might actually be sort of forcing the person's speech, right. And so I think that also raises questions about how those types of situations are distinct from paternalism yet are often seen as a form of paternalism. And also in some cases are vulnerable to paternalism and vulnerable to being taken advantage of.

David: 32:57

That's a really important point too, because there is a very long and harrowing history of people with disabilities falling in this trap within the family, where it is actually the families that lock people with developmental, cognitive, or physical disabilities into lives that are extremely limited, even though the parents or the siblings or the extended family think they have the best interest of the person in mind, uh, right. So cases where road to hell really is paved with good intentions. So the danger is definitely there.

Ellie: 33:36

Yeah. A lot of these arguments from disability studies also intersect in interesting ways with arguments from feminism about care ethics, which is this domain of ethics that basically asserts that when we consider ethical questions, we often presume that each individual is sort of unto themselves, knows their desires, intentions, and will, completely, and then decides how to interact in a sort of conscious way with others in a way that is going to be good to them and minimize harm. That's the sort of justice model that we derive from liberalism. But a lot of feminists will counter that overlooks the fact that many of us are very clearly dependent on one another, throughout much of our lives, right? So you are dependent on others when you were a baby, when you were a child, many people are dependent on others when they are elderly, there are periods of illness and/or disability that many people go through where they're dependent on others. So why should we base our moral theory on this idea of sort of individual monads when we should be basing our moral theory on the actual reality of, to some extent everybody's existence, which is dependence and interdependence, but then also a moral framework of care needs to recognize that there are some folks who are more dependent on others than others.

David: 35:00

I like the way you put it as the reality of human life, because there is a way in which for care ethics theorists, that image of the autonomous rational individual who understands their preferences, is able to rank them, and is able to act out on that ranking, really is an elution or at the very least an abstraction because nobody is ever in that situation, even when they think they are. And there is a lot of research in moral psychology that bears this out. And that suggests that even when you choose that person that you think fits into that model perfectly, they tend to make decisions on the basis sometimes of emotion, on the basis of their social relations, and with consideration for others, even when they don't think that they're thinking in that way.

Ellie: 35:50

Oh my God, absolutely. Because who is this person? Imagine this person who is free, autonomous, independent. This person is male. This person is able bodied. This person is bourgeois. This person is white. Feminist theorists will say, although we presume that such a subject is neutral, when we actually think about who fits into this, it's only a select group of people. And what I love about what you just said, David, is that even that select group of people isn't actually independent either. One of my favorite anecdotes in this regard is that of Henry David Thoreau, who, when he went to Walden Pond, you know, he was like, I chose to go to the woods to live deliberately. He's in a cabin all by himself, an idyllic Massachusetts surrounded by no other humans. He's just thinking on his own, reflecting on nature, writing. His mom did his laundry.

David: 36:45

Knew you were going to say that.

Ellie: 36:46

I know. I always refer to this story. I think it is so amazing.

David: 36:51

I think it really captures the essence of care ethics, which is that we need to start doing justice to that which nourishes us, and that which nourishes us is nature. It is other people. It is social interactions. Nobody nourishes themselves by themselves. And yet a lot of political philosophers and moral theorists have made the assumption that that's the norm. And so for instance, there is a passage where Hobbes describes human beings as mushrooms that just like grow from the ground, on their own. And it's like, dude, if you know anything about mushrooms, you know that they're deeply interconnected under this surface, actually.

Ellie: 37:32

My God.

David: 37:32

Yeah, with these rhizomatic webs and roots that support a care ethics framework rather than the liberal autonomous individual.

Ellie: 37:41

Yeah, because who are the people who are writing about the liberal and autonomous individual? They are precisely the people that we just mentioned. Middle-aged adults.

David: 37:48

and Ayn Rand.

Ellie: 37:49

Yeah. Ayn Rand, oh my God. Oh my God. Yeah. Also middle-aged adult, although just, yeah, she's a woman. But aside from that, fits this model.

David: 37:58

Even Ayn Rand, after her death, that came out that she was on social welfare. She was getting like government-

Ellie: 38:03

Oh.

David: 38:04

support.

Ellie: 38:04

Oh my. Oh-

David: 38:06

Uh-

Ellie: 38:07

You know, this libertarian model of just like getting on your motorcycle and driving off into the sunset. Well, you're able to do that because people pay taxes to maintain the highways.

David: 38:18

Um, yeah, and I think the danger of this myth, the myth of the individual that doesn't need a care network, is that when somebody, according to social perceptions, clearly doesn't fall under that myth or doesn't rise to the level of that myth, they are made to feel as if they are not entitled to the kind of social support that they should be entitled to. And this has been especially true, although not exclusively true of people with disabilities, where they are made to feel as if they are a burden to society or more of a burden than those people who are not considered disabled, when in reality, a social structure should be organized in such a way that people provide support to one another based on what they need, when they need.

Ellie: 39:07

Yes. And I think the important insight from the intersection of feminist theory and disability studies is that our moral commitments to each other are rooted in the centrality of care.

David: 39:18

And in thinking about care in connection to conservatorship, we have to think not only about disability, but also about aging and the elderly. Enjoying this episode? Please rate and review Overthink on Apple podcasts, Spotify, or wherever you listen to your podcasts.

Ellie: 39:44

It's absolutely really central to the discussion of conservatorship to think about the treatment of the elderly. For instance, in California, 87% of conservatees are over 65. I recently watched this other film that I've totally been thinking about in terms of the conservatorship discourse around Britney, which is a film entitled I Care a Lot. And it's this fictional representation of a conservatorship. The main character, played by Rosamund Pike, is this ruthless, evil, woman who exploits the elderly by forcing them into legal conservatorship. So she's a court appointed guardian, and she finds these rich older people that don't have family connections, interesting point in relation to care, ethics and networks of interdependence, she finds these people who are pretty isolated, who have a lot of money, and she argues to the court that they need a conservator. And because as we saw earlier, a person doesn't actually have to consent to their conservatorship.

David: 40:45

Well they don't even have to be informed.

Ellie: 40:47

Yes, absolutely. So this court appointed conservator, in the film, takes advantage of that, and then just sort of has all of these conservatees that she takes under her wing and basically steals money from.

David: 41:01

Yeah. And I wonder what kinds of arguments one would even make to convince a judge that another person who is not even in the room needs to be stripped of their financial and personal autonomy. So I'm curious about how that is represented.

Ellie: 41:18

Yeah, it's represented by a network of paying people off. So the main character, the court appointed guardian, pays off a psychiatrist to give an assessment of the woman and say that she is mentally unfit to care for herself. The court appointed guardian also pays off people in retirement homes to mistreat the conservatees while they're there. There's a really interesting intersection here with gaslighting, which we talked about in another recent episode, because the court appointed guardian totally gaslights the conservatees by causing them to question their own reality. And by trying to make them believe that they can't care for themselves.

David: 42:00

Well, and, you know, I know this is going to sound super conspiratorial on my part, and I should preface this by saying that I am not prone to conspiratorial thinking. Um, I'm prone to-

Ellie: 42:11

You say that, but after our conspiracy theories episode, Brian told us that we all are.

David: 42:16

Um, but I wonder if something similar might be revealed in the wake of the Britney Spears conservatorship case, because one of the things that's become very clear is that the financial interest really gets in the way of the best interest of the conservatee. Uh, one of the points that some critics of conservatorships have made is that there is this structural problem with conservatorships, right, which is that the conservatee pays for everything, right. They pay for their own lawyer. They pay for the lawyer of the other party who inserted themselves into the mix as their conservator. And that means that from the very beginning, the most important interest that our conservatee has, which is getting out of the conservatorship agreement, is the one thing that is not in anybody else's interest, right? The lawyers have a vested interest in continuing the fight because they make money from being the lawyers in this ongoing legal battle. So it's in their fiduciary interest to just extend the battle for as long as they can. And I wonder whether there is a lot of under the table deals that are made in order to keep some of these conservatorship agreements, especially those of high profile clients, who are millionaires, in place.

Ellie: 43:40

No, I don't, think it sounds that conspiratorial, David, because I think as you mentioned earlier, we have really minimal statistics and information about conservatorships because there aren't any state-level guardianship data for the majority of reporting states. So I think there is that issue. And I also think that elder abuse is something that really doesn't get focused on a lot, but that is rampant in the US.

David: 44:04

And not just elder abuse, but all those conscious or unconscious biases and prejudices that we bring to the table when we think about the elderly, right. Or about the process of aging, which reminds me of the philosopher Jan Baars' work on what he calls critical gerontology. And he wrote a book about this called Aging and the Art of Living, where he notes that our treatment of the elderly is this space where the ethics of care and the politics of social control converge in a really bizarre way, because we love and we romanticize the elderly, but we also, at the same time, desubjectiy them. And we don't see them as unique individuals who can make decisions about their own lives. We rather reduce them to what Baars calls chronometric time, uh, just that you become the number of years that you've accumulated in life. So, you know, when we hear of somebody that they are 85 years old, we think we know what that means. And we make a host of assumptions about the abilities they have, the disabilities they have, about the kind of life that they ought to live and about what those around them are entitled to do for them and to them that we wouldn't make if we said that if somebody who was 55. But again, it's just the abstraction into a numerical value.

Ellie: 45:35

And on the other side of that abstraction into numerical value, I think you see the desubjectification of the elderly in the way that they get called cute, right. And I've totally been guilty of this myself. You know, it's like, "Oh, what a cute old person." Calling an older person cute can be a way of dehumanizing them.

David: 45:53

Well, and to go back to the topic of paternalism, to call somebody cute is to infantilize them, right. It's to reduce them to that legal status of the child figure whose interests are determined by the pater and life needs to be brought into order through this external governing principle.

Ellie: 46:12

That's a good point. I think infantilizing is a better term than dehumanizing for that. Although I do think there's a way that, like, we also call animals cute, right. But maybe that's a way of humanizing them. So let's go with infantilizing. I like that.

David: 46:26

Yes. And this subject of aging raises a lot of philosophical questions. And I don't think a lot of philosophers really have spent the time that maybe we need to spend thinking about the fact that we all age and that there is a series of questions that enter the picture at a certain age that maybe don't at another point in life.

Ellie: 46:50

Totally. Yeah. And I'll call myself out here and say that I'm a scholar of the work of Simone de Beauvoir, the 20th century existentialist and feminist philosopher, and she wrote a book called The Coming of Age, which is about our perceptions of age and of aging, talking about it's existential dilemmas and all sorts of stuff. And I have never read this book. I'm a scholar of Beauvoir. I've read so many other of her other books. I have never opened The Coming of Age. And I think that speaks to the fact that it hasn't seemed exigent. I've been able to publish on Beauvoir without ever reading this book because of the way that we tend to devalue the philosophy of aging.

David: 47:31

Well, I haven't read that book, but I went to a conference about six, seven years ago and I attended a panel on Beauvoir. And one of the speakers was talking about Beauvoir and aging, and she made the argument that later in life, Beauvoir had this recurring experience, that all these students who wanted to study with her would come to Paris to study under the great Simone de Beauvoir. And they all had an image of her as this young Bohemian radical philosopher, which was embodied in some of her very famous photographs.

Ellie: 48:06

Where she was like also super well dressed and beautiful.

David: 48:09

Yes, no, no, exactly. But people had this image of the young Beauvoir that they didn't let go of. And so they would show up to Paris to study under Beauvoir and be her mentees, and Beauvoir reports that they would all have this expression of shock and disgust when they saw that she was now an older woman and it really bothered her because she realized that they were objectifying her in relationship to her past self. So it's almost as if she was being trapped in this image that was effectively a photograph. And it's in this context of thinking about her own aging that she then came to write this book, which neither you nor I have read.

Ellie: 48:56

Okay, well, David, I have the book on my bookshelf.

David: 49:01

Oh, you're literally just going to go grab it. Okay. Okay. So on the spot philosophizing, with quotes possibly out of context. What are you finding Ellie?

Ellie: 49:26

Okay. So I'm going to read a little passage from the chapter on old age and every day life.

Beauvoir writes the following: 49:34

"It is old age far more than youth, which would appear to be the time of carpe diem. The time when you reap what you have sown, as Fontanelle says. This is untrue. The society of today, as we have seen, allows old people leisure only when it has removed the material means for them to enjoy it. Those who escape utter poverty or pinching want are forced to take care of a body that has grown frail, easily fatigued, often infirm or racked with pain. Immediate pleasures are either forbidden or parsimoniously

measured out: 50:06

love, eating, drinking, smoking, sport, walking." So I take it that Beauvoir is suggesting that, "Hey, in old age, oftentimes we're free from the obligations that we've had in much of our adult lives. You're no longer taking care of children, if you have them. You no longer have to work," right. A lot of older folks are retired, but it's precisely in old age that people don't have the freedom to enjoy these things.

David: 50:33

Yeah. And this seems to be a direct critique of Seneca, a Roman philosopher, who makes the argument with which she begins and that she then criticizes because Seneca wrote an essay that is often cited by philosophers of aging, which is called "On Aging." And he gives this really romanticized view of old age that he wrote while he himself was retired in like, uh, the, some Italian villa somewhere. Um, and he's like, "Oh my God, in old age, I just get to relax and to be free. And I have the maturity and the wisdom to engage in real philosophical thought." So interestingly enough, for Seneca, you need to be old to be a true philosopher, but here Beauvoir is, again, drawing our attention to the existential, material dimension in saying it's actually at that age that people are denied the tools to truly engage in that kind of process.

Ellie: 51:32

Yeah, because they're often worried about money or they're worried about the performance of their bodies, right? They feel their bodies. Their bodies are more obtrusive to them than they were before. The Beauvoir scholar Shannon Mussett is doing a lot of really interesting work on Beauvoir and aging right now. And one thing she relates it to is the concept of entropy, and how in Beauvoir's work on aging, there is a sort of emphasis on the entropy that is involved in aging, the way that you're sort of worn out or worn down, maybe even over-determined in a sense by your past, where you're free, but you feel less free because you're kind of winding down.

David: 52:11

That's interesting, because when we think about entropy we think about it both in terms of breakdown, but also in terms of stasis, right? That's when a system reaches a high level of disorganization and comes to rest. And I really like the connection to the body because when we age and when we're old, we have to become so much more aware of our body. And we become aware of it in a new way that changes our subjective foothold in the world. That's precisely argument that Beauvoir makes in reverse in The Second Sex, when she says that 12, 13 year old girls suddenly become aware of their bodies in a new way, especially with the growth of breasts, and that changes their subjective relationship to others. And it's not reduceable to biology, but it is not separable from biology either.

Ellie: 53:04

Yeah. So there's this weighing down of the body that one experiences in adolescence by virtue of starting to feel oneself being seen as a sexual object from the outside, and then in aging, there's a weighing down of the body through various physical infirmities, but also through invisibility. I think that's definitely something that Beauvoir focuses on as well is this idea that you're not really even seen when you're old. And I remember when I was 25, I lived in New York. I was there for a year while writing my dissertation, as you probably remember, David, and- and the only way that I was able to afford living in New York City on my graduate school stipend was by renting a room from these two older women. One of whom was 77 years old and had lived in this fabulous apartment in Chelsea since 1971. And, um, she was wonderful. You know, we really got along. We had some special moments together, you know, 25 year old girl and her 77 year old roommates, but I'll never forget that I was walking down the street in New York one day and I walked right past my roommate and she flagged me down. She was like, "Oh, hey Ellie." And I was like, "Oh my God, that's my roommate. I see her every day and she was somehow invisible to me." And I really think that that's because she was old. New York is like bustling, city of young people. I'm checking out people's fashion, et cetera. And there was a way that even somebody close to me was not legible to me by virtue of her age.

David: 54:30

And this is a theme that comes up again and again in Grace and Frankie.

Ellie: 54:34

Oh my God. I love that show.

David: 54:35

Yeah. And, uh, this is a way in which sometimes, paradoxically enough, older women in particular can express a kind of social control and manipulation by tapping into that invisibility, where they can move through social environments in ways that are undetectable because other social actors are already not thinking about them as agents on the scene, right. So think about like the- the super spy, older woman who can just turn that invisibility to their advantage.

Ellie: 55:06

So going back to the idea that we tend to desubjectify the elderly, that can leave them quite vulnerable to mistreatment, say in the case of legal guardians, but it can also be, in some cases, at least, subverted. And I think when we think about that, we want to be very careful following what we said about Britney and disability not to say that elderly people can subvert expectations of them when they are equipped to do so, because they still have all their marbles, right. We want to not imply that elderly people are either disabled or they have their shit together.

David: 55:43

No. That's exactly right. And there is a lot of overlap here between the philosophy of aging and the philosophy of disability, because what philosophers often fear about aging is not really aging per se, but the physical and the cognitive impairments that are typically associated and sometimes equated with aging. And, uh, I would go so far as to say that this fear of aging and impairment is one of the reasons why so many philosophers, historically, have had so much to say about death, and the fear of death, and dying, and finitude. But curiously, not that much to say about impairment, about aging, and about the process of breakdown that comes with aging.

Ellie: 56:33

Well, I feel convicted. By the time this episode airs, I will have read The Coming of Age. I'm going to be a good Beauvoir scholar who's not ageist.

David: 56:41

All 700 pages of it. Yeah. She was not known for her brevity. We hope you enjoyed today's episode. Please rate and review us on Apple podcasts, Spotify or wherever you listen to your podcasts. You can email us with questions, feedback, or even requests for life advice at dearoverthink@gmail.com.

Ellie: 57:08

You can also find us on Instagram and Twitter at @overthink_pod. We want to thank Anna Koppelman, our production assistant, Samuel P.K. Smith for the original music, and Trevor Ames for our logo.

David: 57:22

Thanks so much for joining us today.