All About Estates

#FreeBritney: Conservatorship vs. Guardianship

Many of you have heard of the #FreeBritney movement which has been gaining media attention over the past few years. After Britney Spears’ very public breakdown due to mental health issues, a court in California appointed her father, Jamie Spears and a third party, as her conservators. The court appointed conservators under conservatorship have controlled and managed her career, finances and medical decisions since 2008. The term “conservatorship” is not one we use in Ontario. The equivalent to a conservatorship in Ontario is “guardianship”. Today’s blog discusses the differences between a conservatorship and a guardianship and how one would proceed to terminate a conservatorship or guardianship in their relevant jurisdiction.

In California, a conservatorship is established when a judge appoints an individual or an organization (the “conservator”) to care for an individual who “cannot care” for themselves, or who cannot manage their finances (the “conservatee”). The court  decides based on evidence what rights will be granted to the conservator, taking into consideration the condition of the conservatee. Normally, a conservatorship is granted in situations where an adult is mentally incapacitated and unable to care for themselves or is unable to make financial decisions. A conservatorship can be temporary or long term. If the conservatee regains the capacity to manage their own affairs, the conservatorship may be revoked by the court. To proceed to have a conservatorship terminated in California, sufficient proof would need to be provided to the court to prove that the conservatee is capable of making sound financial and healthcare decisions for him/herself.

Alternatively, in Ontario, there are two types of adult guardianships: guardian of property and guardian of personal care. Today’s blog, speaks only to guardianships of property. Adult guardianships are generally used to protect individuals who  are unable to make decisions in their best interest. A guardian of property is a person or organization who is appointed to manage the financial affairs of a person who is incapable of doing so. A person is  incapable if they are unable to understand the relevant information or appreciate the overall impact that may result from decisions they make or do not make with respect to their financial affairs. If a court appoints a guardian of property, they are in no way limited in terms of who they may appoint. However, a person who is being financially compensated to provide services to an incapable person is generally prohibited from being appointed as a guardian of property. In general, a guardian of property has a duty to act in the incapable person’s best financial interests and is required to manage the incapable person’s finances in a manner that will provide them with the best quality of life. A guardian is similar to a trustee in that a guardian cannot use an incapable person’s finances to benefit the guardian or others. The guardian is required to maintain accurate financial records of all financial transactions, carefully maintain assets or sell assets if required, invest funds as a prudent investor would and make all efforts to collect all of the income and benefits the incapable person is entitled to. If a guardian would like to vary a guardianship order appointing a guardian, or terminate the guardianship, it may do so under section 22 of the Substitute Decisions Act (“SDA”) or they can substitute another person as guardian on motion in the proceeding in which the guardian was appointed.

What can be deduce from the above is, whether it be a conservatorship or guardianship, the person or organization appointed has a fiduciary obligation to ensure the conservatee or the incapable person’s finances  are properly managed. What we have learned from the #FreeBritney movement is that to terminate or revoke a conservatorship is no easy feat. Will the #FreeBritney movement reign supreme? Stay tuned.

About Krista Brown
Krista Brown has worked in the legal profession for over 21 years. Krista has extensive experience in complex, high value estate planning, estate and trust administration as well as drafting Marriage Contracts for high net worth clients. Krista's experience also includes drafting wills, trusts, codicils, powers of attorney and cohabitation and marriage agreements.

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