Over the past year, media around the world has detailed Britney Spears’ battle to have her father removed as her conservator, which has included numerous documentaries on the subject.
Ms. Spears’ father was first appointed as her conservator in 2008, which gave him control over her $60 million estate and person.
However, in recent times, Ms. Spears began voicing her desire to have her father removed as her conservator.
Then, last week, Ms. Spears got her wish when a judge granted her petition to have her father suspended from his position as her estate conservator.
But what does the law say on such matters in Ontario?
Are There Conservators In Ontario?
The short answer is no, there are no conservators in the province. “Conservator” is not a legal term used under Ontario law.
However, there are legal structures in place under Ontario law that allow a person to take control over another person’s estate and personal matters under certain circumstances. Those people are called guardians.
When Will a Guardian Be Appointed?
In Ontario, a guardian may be appointed where a person is determined to be mentally incapable of making certain decisions.
A person will be declared mentally incapable where they are assessed as being incapable of making a decision if they do not understand the information relevant to the decision or don’t understand the consequences of making or not making it, or both.
Such determinations, depending on the issues raised, may be made by a qualified professional, a capacity assessor (who is either a doctor, nurse, psychologist, social worker or occupational therapist), or a judge.
If someone is determined to be mentally incapable, they may have a guardian appointed as a legally authorized substitute decision-maker to make choices on their behalf.
Generally, unless the person had already planned for the appointment of an attorney for personal care or property, a guardian of property or a guardian of the person will be appointed under Ontario’s Substitute Decisions Act, 1992.
Guardians of Property
A guardian of property is a person or trust corporation that makes financial decisions on behalf of a mentally incapable adult. These types of guardians will either be appointed by the Office of Public Guardian and Trustee or by the Ontario Superior Court of Justice.
Once appointed, a guardian of property will be responsible for managing all property, including real estate and bank accounts, that the incapable person owns. A guardian of property can:
- open and close bank accounts;
- redirect pensions and other income;
- apply for benefits or supplementary income to which the person is entitled;
- pay bills;
- buy goods and services.
However, it should be noted that a guardian of property cannot:
- make personal care decisions, including health care decisions;
- make a will on behalf of the mentally incapable person;
- sell property that is the subject of a specific gift in a will, subject to certain exceptions.
Guardians of The Person
As a separate appointment from that of a guardian of property, a guardian of the person may be appointed by the court to make personal care decisions on behalf of a mentally incapable adult.
A guardian of the person can make personal care decisions relating to the incapable person’s health care, nutrition, shelter, clothing, hygiene, and safety.
However, it should be noted that such an appointment is not a carte blanche to make all the decisions set out above. Instead, the guardian of the person will only be appointed for those types of decisions that the person has been found incapable of making in a previous determination.
Does Ontario Law Allow You to Challenge the Decision?
Although Ms. Spears does not appear to have challenged her conservatorship as a whole, in Ontario, a person may appeal certain kinds of incapacity decisions, such a:
- Certain decisions that a person is incapable of managing property;
- A decision by a health care practitioner that a person is incapable of making choices about their medical treatment; and
- A decision by an evaluator that a person is incapable of making choices about admission to a long-term care facility.
In other cases, a person much contact a lawyer for advice regarding how to oppose an incapacity-related decision.
Contact Campbells LLP for Experience Advice on Estate Matters
Protecting your assets and ensuring your family and other loved ones are provided for in the future is not something most people want to think about. However, effectively managing your wealth and protecting your spouse, children, and your estate is something that everyone should do at some point to ensure that your express wishes are carried out.
An effective estate plan goes far beyond just creating a will. You should also consider securing other important legal tools including powers of attorney (for personal care and for property), trusts (including Hansen trusts if you have disabled children or other dependants), as well as the designation of beneficiaries on life insurance policies, pensions, and other key documents.
The best way to guarantee that your wishes will be carried out exactly as you would like them to is to consult with an experienced estate lawyer.
At Campbells LLP in Oakville, our wills lawyers have been helping clients with Wills and estates matters since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective.
At Campbells LLP, we are proud of the strong, long-lasting relationships we build with the clients for whom we craft Wills and estate plans. With our help, you can ensure that your family and loved ones are taken care of, that your wealth is distributed as you wish, and that the risk of any potential litigation is minimized. Our overall mission is to provide the right solution for each and every one of our clients. Contact us online or at (905) 828-2247 to learn more about our services.
