Wills and Estates lawyer Sheila Morris’ article "You want a piece of me? The guardianship of Britney Spears” was published by The Lawyer’s Daily. Sheila takes a look at how Britney’s guardianship debacle would play out in Ontario. Sheila also addresses issues such as why Britney might end up under a guardianship in the first place, and the powers and obligations Britney’s guardian would have.
The article was published on February 17, 2021. To read it in The Lawyer’s Daily, visit: https://www.thelawyersdaily.ca/articles/24651/you-want-a-piece-of-me-the-guardianship-of-britney-spears(subscription required).
You want a piece of me? The guardianship of Britney Spears
The New York Times’ documentary, Framing Britney Spears, has been making waves across news and social media outlets these past weeks. Much of the documentary’s focus is on the relentless hounding to which Spears was subjected at some of her most vulnerable moments, though one wonders whether the film is hitting her one more time by republishing the very footage and photos it denounces. The film’s other main focus is the controversial conservatorship that has controlled every aspect of Spears’s life, including her estimated US$59 million fortune, for the past 12 years.
How would this situation play out in the Hollywood of the North? Let’s imagine for a moment that Spears has been transported to Ontario …
My perogative: What is a conservatorship or a guardianship?
If Spears is not mentally capable of making certain decisions about her own property or personal care, she will require a substitute decision maker. If she had received good legal and financial advice, she would have executed a continuing power of attorney for property and/or a power of attorney for personal care, which would appoint someone of her choosing to act as her substitute decision maker. In this case, she would have had an opportunity to think about and decide for herself who she trusts to act in her best interest if she becomes incapacitated. If, however, she did not execute powers of attorney, then someone must apply to the court to become her appointed guardian. This person is not necessarily someone she trusts or would have chosen.
Overprotected: What does it mean to be incapable?
There are two broad categories of substitute decision making: decisions related to property and decisions related to personal care. Property refers to things that have monetary value, such as cash, real estate, investments, beneficial interests, etc. Personal care refers to health care, nutrition, shelter, clothing, hygiene and safety. Before anyone can begin making financial decisions on Spears’s behalf, they must first demonstrate that she is unable to understand information that is relevant to making a decision, or that she is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about her property.
With respect to personal care, they must demonstrate that Spears is unable to understand information that is relevant to making a decision concerning her own health care, nutrition, shelter, clothing, hygiene, or safety, or that she is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision on these matters. The opinions of medical professionals and certified capacity assessors are often the foundation for these determinations.
A guardianship intrudes on a person’s civil and human rights. Ontario courts would take very seriously the consequences of declaring Spears incapable and appointing a guardian to manage her affairs. Courts would almost always prefer a less restrictive way of managing her rights if it is at all possible.
In the zone: Duties and obligations
Spears’s substitute decision maker must act in her best interest. They must try to explain their duties to her, and to encourage her participation in decisions about her property. They must also try to foster regular personal contact between Spears and her supportive family members and friends and consult those friends and family from time to time. Spears’s guardians of property must keep accounts of all financial transactions and follow specific rules about how her money can be spent on gifts, loans and charitable donations.
Give me more: Compensation
Spears earns income from album sales, concert tours (including her record-breaking four-year residency in Las Vegas), merchandise, film and TV appearances, endorsements, clothing lines, and, a fragrance line.
Her guardian of property will be entitled to compensation, which will be paid out of her assets. Specifically, they will be entitled to three per cent on all monies received by Spears, three per cent on all monies paid out, and they can claim an additional annual fee of three-fifths of one per cent on the annual average value of the assets, referred to as a “care and management fee.” Based on her estimated net worth, the care and management fee alone amounts to US$354,000 per year. With those kinds of numbers, it would be critical to ensure that her guardian is properly accounting for all of the money coming in and going out.
Stronger: What lies ahead for Britney
Currently Spears’s father is sharing the conservatorship duties with Bessemer Trust, an American financial institution. She has opposed her father’s attempts to gain increased control over her finances, and the Los Angeles County Superior Court recently agreed with her by dismissing her father’s objections to sharing control with the trust company. Whatever transpires in the interim, this Spears fan hopes that she will one day soon be able to manage her own property and personal care and take back control of her life.
If you have any questions regarding this article, estate litigation, or estate planning contact estate litigator Sheila Morris at firstname.lastname@example.org.
Re-printed with permission from The Lawyer's Daily - originally published on February 17, 2021 (subscription required).