For everyone stuck at home looking for a new show to watch (even though it’s officially on Hulu) you might have been shocked after watching Framing Britney.
First – you feel bad for Britney Spears. Then you think – oh we probably don’t do that here our laws are different. The final thought – could that happen to me?
Let’s start at the beginning. How did this happen?
If you haven’t seen the movie yet, all you need to know is that Jamie Spears, Britany’s dad, has conservatorship over her. We’ll explain the rest.
From now on – I’m going to tell you what a “conservatorship” looks like in Ontario using Britney and Jamie as an example.
It starts with a guardianship application. Jamie applies to the court to become Britney’s Guardian of Property and Personal Care (also called her substitute decision maker).
In Ontario – we call it “Guardianship” not “Conservatorship”. Had Jamie applied in Ontario – it all boils down to capacity.
Jamie would have had to show the court proof that Britney is incapable of making decisions. The court would have to make a finding of incapacity – deeming Britney capable – and then the next decision is who to appoint as her guardian. Jamie would have to prove that he is the right person for the job to make decisions on her behalf.
The most important theme is what is in the best interest of Britney? There is an actual test for incapacity stated in the law. This means “mental capacity” is a legal test – not clinical. The key aspects is the ability to understand and appreciate the consequences of a decision (found in the Substitute Decisions Act, the “SDA” – more on that here).
The law presumes every person is capable of making decisions which means Britney is presumed to be capable. It would be up to Jamie to rebut this presumption and prove in law and fact that she is not capable.
Property vs. Personal Care
Just like in the movie – we also have differentiated between personal care decisions, such as decisions concerning health care, nutrition, shelter, clothing, hygiene or safety and property decisions, which are decisions related to money and finances.
The “test” for capacity is different for personal care and property. A person may be able to manage their personal care but not their finances.
For a guardian to be appointed, the court must find that the person is incapable and as a result “it is necessary for decisions to be made on his or her behalf” (s.25, s.58(1) SDA).
It is usually a capacity assessment that provides proof of a person’s incapacity.
Britney may not wish to be assessed. In which case, Jamie may apply to the court to seek a court-ordered capacity assessment. Also, capacity assessments may vary. Britney may have an assessment which shows she is capable while Jamie may provide an assessment evidencing that she is incapable.
Property: Court audits
Leaving personal care behind for a second and just talking about property – over here, Jamie is not allowed to do whatever he wants with a person’s money. He must act in Britney’s best interest and courts like to keep an eye on these things. The court’s watchful eye comes in the form of a “passing of accounts” – a formal court audit of how Jamie is managing Britney’s property.
And we can’t talk about guardianship without talking about our other government entity – the Office of the Public Guardian and Trustee (the “PGT”). They exist to protect the rights of those who may not be capable.
The PGT usually mandates for accounts to be passed when a person is incapable of managing property. The PGT would review the accounting. If the PGT or Britney have problems with Jamie’s accounting – they would file an Objection. This gives Britney a voice to tell the courts that things are not right. Britney also has the right to force Jamie to pass his accounts at any time. This is where she “compels” an accounting from Jamie.
It is then up to the courts to decide whether to:
- accept Jamie’s accounting, and/or take other measures such as:
- remove Jamie (appoint someone else, e.g. PGT)
- order Jamie to pay back money (usually plus interest), or
- reduce his compensation (ss. 42(1), (7) (8) SDA & ss. 49(3)(4) Estates Act – Helpful guide to passing of accounts here.)
Before even being appointed, Jamie would have had to show the court for their approval a Management Plan (the “Plan”), which is essentially a budget. When Jamie then passes his accounts (asking the court to audit him), Jamie would have to show that he followed the Plan.
Of course, things change. Brittney makes a new album, she has a perfume deal, she does shows in Vegas, but that doesn’t excuse Jamie from the Plan. Jamie would need to first change the Plan (by Amending the Management Plan for court approval) before veering from the course.
If Jamie fails to follow his own Management Plan, the courts may reduce his compensation or remove him.
Why does Britney have a court appointed lawyer?
I saved the best for last because this was the only part that really threw me for a loop. How come Britney can’t choose her own lawyer?
Okay it is important to note – Britney needs the requisite capacity to retain counsel and give instructions to counsel. But it is up to the lawyer to satisfy themselves and determine that their client has capacity.
I found it fascinating that Britney had retained a lawyer in February 2008, Adam Streisand, who stated he thought Britney was capable to retain him. However, he was removed by the court after the judge viewed Britney’s private medical reports and then the court appointed her a lawyer.
I found it odd Britany was stripped of her right to retain her own lawyer at any point. Even if she was deemed incapable, there is no saying that decision won’t be appealed or changed later.
If Streisand satisfied himself that Britney had capacity then he should be able to represent her!
When Lawyer is Appointed
We do have a mechanism in place which would have protected Britney if she didn’t have her own lawyer.
Depending on the nitty gritty, either the PGT would have represented her, or she would have been appointed “section 3 counsel.”
A lawyer acting as “section 3 counsel” (found in section 3 of the SDA) is only appointed when a person does not have legal representation and their capacity is in issue. Had Britney not been represented, then the court may direct the PGT to arrange for her to be represented and she would be deemed capable to retain and instruct counsel.
Will Britney be freed?
Now you can see that Guardianships can be a complicated (and costly) process.
Here – once a person has capacity (and a court finds they are capable), their guardianship would be terminated. Simply put – Britney does not need someone else to make her decisions if she has the capacity to make decisions herself!
If Britney lived in Ontario, once she was able to prove her capacity and be found capable, she would be “freed.”
Britney – we are rooting for you!