Britney Spears’ conservatorship, and the resulting “Free Britney” movement, has been a topic of much discussion in the news. Plenty of attention, and rightfully so, has been focused on what Britney’s wishes are with respect to the conservatorship. Recently, Britney made a powerful statement to the Judge presiding over her conservatorship case that outlined her wishes as well as the trauma she experienced from being under a conservatorship.
Britney’s conservatorship highlights potential issues that can arise in the appointment of substitute decision makers by the Court. In Ontario, this process is called a guardianship. Her conservatorship further raises the importance of ensuring that the conservatorship, or guardianship, is in the best interests of the alleged incapable person and that affected individuals have the opportunity to exert their agency (agency is the capacity of individuals to act independently and to make their own choices) in the guardianship process. This blog examines the legal measures that are in place in Ontario that advance these goals.
Britney Spears’ conservatorship
In 2008, Britney was placed under a conservatorship for her estate (property) and person. During the conservatorship, various individuals, including her father, have acted as her conservators, and they have made decisions regarding her property and personal care. As the conservatorship progressed, concerns were raised regarding whether Britney was truly incapable of managing her affairs and whether the conservatorship was even necessary. These concerns ultimately culminated in the Framing Britney Spears documentary that was released in 2021.
On June 23, 2021, Britney made a statement to the Judge hearing her case. In her statement, she described the abusive aspects of her conservatorship (such as forcing her to work, forcing her to take medication against her will, and making decisions regarding her body and family planning) and the resulting harmful impact the conservatorship has had on her. She further outlined her wishes regarding her property and person and, ultimately, advocated for her conservatorship to end without a further evaluation.
An examination of her (apparent) toxic conservatorship, and the resulting trauma experienced by her, highlights the importance of ensuring that the conservatorship is truly in the best interests of the alleged incapable person. In addition, Britney’s experience also underlines the importance of there being safeguards in place to ensure that the alleged incapable person is aware of their rights and can have the opportunity to exert their agency throughout the process by expressing their wishes and preferences.
What if Britney Spears lived in Ontario? What protections are in place for adults in Ontario who are alleged to be incapable and who purportedly require someone to manage their property and/or personal care?
Guardianship applications in Ontario
In Ontario, if an adult is alleged to be incapable such that he or she requires a person to manage their property and/or personal care, a person or persons may apply to the Court to become appointed as Guardian. The legislation in Ontario that provides the legal framework for guardianship applications for adults is the Substitute Decisions Act.
In Ontario, the process to have a Guardian appointed for an incapable person includes procedures that appear to promote agency and are designed to protect the alleged incapable person. These procedures are as follows:
Service requirements
Guardianship applications must be served personally on the incapable person and the Public Guardian and Trustee (“PGT”). This service requirement ensures that the alleged incapable person is aware that a person is seeking to be appointed as his or her Guardian. Service of the application materials further ensures that the person is aware of when and where the hearing of the application will be, and it allows the person to view the proposed Guardian’s plans for the management of their property and/or care. It also gives that person an opportunity to seek out legal advice if they disagree with the Application, or aspects of the Application.
The PGT is a government body that oversees all guardianship applications for adults to ensure that the guardianship is in the best interests of the person and further, that their property and care will be managed properly. The requirement to serve the PGT allows for an independent party to review the materials to confirm that these goals are met.
Presumption of capacity
A person is presumed capable until proven otherwise. This presumption is outlined in section 2 of the Substitute Decisions Act and offers protection to the alleged incapable person. The person seeking to be appointed as Guardian, therefore, must provide evidence to the Court confirming that the alleged incapable person is, in fact, incapable based on the legal tests as described in the following section.
Medical evidence to support incapacity
Importantly, when the guardianship application is commenced, there needs to be sufficient medical evidence presented to the Court that demonstrates that the alleged incapable person is incapable of managing their property and/or personal care. The medical evidence that is usually presented is a capacity assessment completed by a designated capacity assessor.
There are distinct legal tests used to determine the capacity to manage property and personal care, and the capacity assessor must make their determination of capacity based on these legal tests.
Section 6 of the Substitute Decisions Act outlines the legal test for the capacity to manage property: (a) the ability to understand the information that is relevant in making a decision in the management of his or her property; and (b) the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.
Section 45 of the Substitute Decisions Act outlines the legal test for the capacity to manage personal care: (a) the ability to understand the information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety; and (b) the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
The determination of capacity rests on these legal tests.
Notably, undue influence (when a person is coerced and acts against their own free will), which has been suggested to have occurred in Britney Spears’ case, is not a factor considered in these legal tests regarding capacity. In addition, individuals can make “risky” decisions or improper/poor decisions, and can even be persuaded into making a decision, but still be legally capable of making the decision.
Rights advice to the alleged incapable person
As part of the application process, there is a requirement that the proposed Guardian is to tell the alleged incapable person about the application being commenced and that they are seeking to become appointed as their Guardian. The applicant must also explain what this will mean and advise the person that they have a right to oppose the appointment. This process is termed “rights advice”.
In the application materials, the proposed Guardian needs to provide sufficient evidence to the Court that they have given the appropriate rights advice.
Wishes of the alleged incapable person
Under the Substitute Decisions Act, sections 24(5) and 57(3) outline the criteria that the Court shall consider when determining who should be appointed as Guardian, if it is determined that a Guardian is required. Of importance, these sections state the Court shall consider the incapable person’s wishes, if those wishes can be ascertained.
When applying to the Court, it is, therefore, important that the proposed Guardian provide evidence of the alleged incapable person’s wishes (if they can be ascertained) regarding who they want to become Guardian, as well as how they wish for their property and personal care to be managed. It is similarly important that the proposed Guardian ensures their plans are consistent with the person’s wishes (past and present).
Guardianship as a last resort
The appointment of a Guardian is a last resort. Sections 22(3) and 55(2) of the Substitute Decisions Act state that if there are alternative courses of action where the needs of the person will be met that do not require the Court to find the person incapable and are less restrictive on the person’s decision-making rights than a guardianship, then the Court shall not appoint a Guardian.
Ongoing obligation to consult
Lastly, if a Guardian is appointed, there is an ongoing duty, under the Substitute Decisions Act, for the Guardian to consult with the incapable person as well as supporting family members and friends regarding management decisions in the guardianship. This ensures that the incapable person is involved in the management of their property and care and that their wishes are continually assessed throughout the guardianship.
Conclusion
With these measures in place, the legal framework surrounding guardianships in Ontario, although likely not perfect, seeks to ensure that persons are protected and have agency in the guardianship process. If Britney Spears lived in Ontario and it was determined that she required a Guardian (after concrete medical evidence was presented to support her incapacity) and a guardianship was deemed necessary, she would likely have much more autonomy than she does under her current conservatorship.
With respect to Britney Spears’ conservatorship, the Court shouldplace significant weight on her wishes. There should further be a thorough examination of the conservatorship system that appears to have truly failed her.
#FreeBritney
A special thank you to my colleagues, John Morrissey and Jenny Yu, for their comments and edits.