Let’s flashback sixteen years to 2004. A Harvard student named Mark Zuckerberg has just created a new social media platform called “The Facebook”; the final episode of Friends airs; the Expos say adieu to Montreal; and Britney Spears is the hottest popstar on the planet, having just released her chart-topping single “Toxic”. A simpler time.
Obviously, things have changed over the last decade-and-a-half. In many ways (without going into detail) you could say our world has grown more toxic since those innocent days at the beginning of the century. This is especially true for Britney Spears who has fallen from superstardom and is now embroiled in an ugly legal dispute with her father, James Spears, over the control of Britney’s finances and personal care.
James has wielded decision-making power over his daughter’s health care decisions and financial assets, which include her $60M music empire, for over a decade, since Britney was declared incapable of managing those aspects of her life due to concerns about her mental health. Now, in a heated court fight (which has generated its own #FreeBritney movement) Britney is asking that her father be removed from his position of authority because, she says, the relationship between them is neither sustainable nor healthy and her dad’s involvement is not in her best interests. James argues that Britney is not capable of managing her affairs and that he is the most appropriate person for this guardianship role. So far, the courts have sided with James, maintaining his guardianship over Britney’s affairs.
A guardianship (or a “conservatorship” as it is referred to in California, where the Spears litigation is unfolding) is a regime that can be put in place as a means of managing the affairs of an individual under disability who, for whatever reason, is not capable of managing their property and/or personal care.
In such circumstances, a court may appoint a “guardian” (or “conservator”) who is legally authorized to make decisions on the incapable person’s behalf. The guardian assumes the role of fiduciary, and owes a solemn fiduciary duty to always act in the best interests of the incapable person.
In Ontario, guardianship appointments are governed by statute, specifically the Substitute Decisions Act, 1992, RSO 1990, c C.12 which provides for two types of guardianships: Guardianship of Property, and Guardianship of Person.
A guardian of property, once appointed, can do on behalf of the incapable person anything that the incapable person could normally do in relation to his/her property (including selling assets, paying bills, attending to legal matters) except make or change a will. A guardian of property may be appointed when an individual is deemed incapable of managing his/her property or “not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decisions”.
A guardian of person may be appointed where an individual is deemed to be incapable of personal care or “not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”. A full guardian of person appointment provides broad powers to the guardian to make a range of decisions on behalf of the incapable person regarding living arrangements, shelter and safety, health care decisions and even their employment and legal affairs.
In California, the laws in respect of guardianships are somewhat similar to those Ontario, in that a court can appoint a “conservator” to oversee or manage a person’s financial or medical affairs, where the latter individual has been deemed incapable of doing so themselves.
It goes without saying that guardianship/conservatorship appointments are very serious matters, conveying sweeping authority to the guardians and severely limiting the autonomy of the incapable person. It is for this reason that guardianship appointments are often considered to be appointments of last resort, however, in many instances they are a necessary step in order to ensure that a person’s finances and health care decisions are properly managed.
The ultimate consideration in any guardianship appointment is the best interests of the incapable person, and courts will generally only award guardianship over an incapable individual’s affairs to a person (or corporation) if it appears to be in the incapable individual’s best interests.
THE SPEARS’ SAGA
Back to Britney’s blow-up with her dad, James. This ordeal dates back to 2007, and Britney’s messy divorce from her former spouse, Kevin Federline (aka K-Fed). Britney was in the midst of a public mental health breakdown at the time, which saw her shave her head, attack a paparazzi’s car with an umbrella, engage in dangerous behaviour with her young children and committed to psychiatric facilities on multiple occasions. At the time, these antics were fodder for tabloids that were obsessed with Britney in the wake of her very public divorce, however there were also legal ramifications that were not publicly known at the time.
Britney’s erratic behaviour, and underlying mental health problems, gave rise to a guardianship/conservatorship being granted to her father, James, who was appointed by a California court as Britney’s conservator in 2008 and put in charge of making all decisions regarding Britney’s finances and personal care, after it was found that Britney was not capable of doing so herself.
Since that time, James has managed Britney’s multimillion-dollar media enterprise, making all decisions relating to her career and business on Britney’s behalf, in addition to managing Britney’s health care decisions. Despite this conservatorship which has been in place for 12 years, Britney has remained relatively active in her career, rolling out four albums and holding down a four-year Las Vegas residency during that time.
However, recently, Britney has made attempts to have James removed as her conservator. In September of 2020 Britney asked a California court to remove her father as her conservator, because she no longer shared a viable working relationship with him and that, in her submission, his involvement as her guardian of property and person was not in her best interests. James, on the other hand, argues that: he has always acted in Britney’s best interests since being appointed her conservator in 2008; he has in fact helped her grow her business empire and improve her health during that time; he is the most appropriate person or entity to act in this role; and Britney is mentally incapable and lacks capacity to make decisions on her own behalf regarding her care or finances, so her assessment of the situation cannot be accepted.
In a recent November 2020 ruling, a Los Angeles court denied Britney’s application to have James removed as her conservator. However, the court did appoint a corporate guardian, a company called Bessemer Trust, to act as co-conservator alongside James. This can be seen as at least a partial victory for Britney, as it means that her father no longer has sole control over her affairs, but must act together with a corporate trust company in carrying out decisions on behalf of Britney.
The new development will likely be welcomed by Britney Spears’ loyal fans who have formed the “#FreeBritney” movement on social media, which is aimed toward having Britney liberated by what her fans perceive as the overbearing and unjustified control of her father as her conservator.
The Spears guardianship litigation is set to continue with fresh hearings in 2021, and it will be interesting to see how these matters develop and whether James is permitted to remain as Britney’s conservator, despite Britney’s apparent objections to same.
The Britney Spears conservatorship dispute raises many issues that we commonly see in the context of guardianship proceedings. Primarily, it identifies the difficulty in determining what is actually in the best interests of a person who has been deemed incapable, but who voices their objection to a specific guardian acting that has been appointed by a court to act in that person’s best interests. Ultimately, the primary consideration for any court in appointing a guardian will always be the best interests and well-being of the incapable person. However, in many cases, it can be difficult to ascertain how the person’s interests are best served, especially when their own capacity and ability to make decisions for themselves has been challenged.
Oftentimes, courts may be reluctant to change a guardianship appointment, especially one that has seemingly worked well for many years, because a judge may be apprehensive about disrupting the status quo and, potentially, prejudicing the interests of the incapable person as a result.
In circumstances like the Spears Guardianship litigation, a court is put in a difficult situation. James Spears may have his daughter’s best interests at heart, he may have done a fine job managing Britney’s affairs as her conservator since assuming that role in 2008, however, now Britney (having previously been deemed incapable) seeks her father’s removal from this post. Of course, the court wants to do what is best for Britney, the question is whether she is capable of knowing what is in her own best interests, given her alleged mental health issues. Most often, such cases are determined by the medical evidence or expert opinions commenting on what is best for the subject of the guardianship, and whether the allegedly incapable person is able to make informed decisions in regards to same.
In Ontario, such evidence can come in the form of capacity assessments, conducted by qualified capacity assessors who are able to assess and comment on an alleged incapable person’s ability to manage their property or person within the meaning of the SDA. In addition, “Section 3 counsel” can be appointed for the allegedly incapable individual; s. 3 counsel can advocate for the allegedly incapable person and convey their interests and wishes to the court in the context of contested guardianship proceedings.
 SDA, s. 31.
 SDA, s. 6.
 SDA, s. 45.
 SDA, s. 59.
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.