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What Britney Spears Can Teach Us About Guardianships

3 minute read

As a child of the 90s, I have sung and danced along to “…Baby One More Time” more times than I can count or care to admit. And so, I was interested to read about the protracted legal battle involving the conservatorship over Britney Spears’ financial and personal affairs.

In 2008, after a series of well-publicized personal struggles, Britney has lived under a court-approved conservatorship in which her father, James Spears, and a lawyer, Andrew M. Wallet, have exclusive control over her fortune and her personal care. In late 2019, James Spears stepped back from his role as Britney’s personal conservator due to health reasons and was replaced by a professional conservator.  On August 18, 2020, Britney’s court-appointed lawyer filed court documents objecting to her father’s return as personal conservator and seeking to have the professional conservator’s appointment made permanent. The court documents also stated that Britney preferred to have a “qualified corporate fiduciary” appointed to oversee her finances.

Unfortunately for Britney, a California judge extended the current conservatorship arrangement to February 1, 2021, while directing the parties involved to file further materials. These latest developments have only served to fan the flames of the #FreeBritney movement, a collection of fans who have protested the conservatorship, taking the position that Britney is being held against her will.

In Ontario, we have a similar legal mechanism called a guardianship to protect those who have been found by a court to be incapable of managing their property and personal care. Guardianships are typically sought for individuals who are unable to manage their affairs due to infirmity, such as those suffering from dementia or grievous injuries from a serious motor vehicle accident, and have no valid powers of attorney.

Anyone may apply to be appointed as guardian for an incapable person, but preference is usually given to the incapable person’s spouse (which includes a partner with whom the incapable person had been in a conjugal relationship for at least 1 year), child, or other family member.

Guardians are fiduciaries who are required by law to act only in the best interests of the incapable person. Therefore, the requirements for guardianship applications are comprehensive. Persons seeking guardianship appointments are required to bring a court application, which typically includes a report by a designated capacity assessor confirming the incapable person’s incapacity, an affidavit by the person seeking the appointment, a management plan (for guardians for property), and a guardianship plan (for guardians of the person).

The court may order not just that the guardian be appointed, but also that the legal costs associated with the application be paid entirely or partly by the incapable person.  The courts are typically more reluctant to order legal costs if the incapable person is a minor or has limited finances.

In appropriate cases, the court may also appoint a lawyer to act for the incapable person, known as “section 3 counsel”. Much like Britney’s court-appointed lawyer, the main role of section 3 counsel is to communicate the incapable person’s wishes to the court.

The outcome of Britney’s conservatorship remains to be seen. In the meantime, if you think you might need to bring a guardianship application on behalf of a loved one, our team of experienced lawyers would be happy to assist you.

 

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Kimberly A. F. Cura

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