Most of us are aware of the legal battles surrounding the conservatorship of pop singer Britney Spears in California. In 2008, Spears’ father was appointed by the California Superior Court as a conservator over her assets, estate, and business affairs. Although Spears’ conservatorship was initially intended to be temporary (and was appointed as such), it ultimately became a permanent conservatorship that has been in place since 2008. In September 2021, her father was recently suspended by a court ruling as conservator over her estate, with the status of the conservatorship subject to upcoming court hearings. But how would the Britney Spears Conservatorship saga have played out in Alberta?
In Canada, although it is not called a “conservatorship”, the same type of legal arrangement exists in each province under the province’s guardianship legislation. In Alberta, the legislation governing guardianships is the Adult Guardianship and Trusteeship Act1Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2. (the “AGTA”). Under the AGTA, when an adult has lost capacity to make decisions, a court order will appoint someone to help the adult by acting as either an “Adult Guardian” for their personal decisions (with such an arrangement being referred to as a “Guardianship”) or an “Adult Trustee” for financial decisions (with such an arrangement being referred to as a “Trusteeship”). Alternatively, someone can be appointed as both Guardian and Trustee for making both personal and financial decisions.
The AGTA is premised on four guiding principles:
- The adult is presumed to have capacity and able to make decisions until the contrary is determined;
- The ability of the adult to communicate verbally is not a determination of capacity, and the adult is entitled to communicate by any means that enables them to be understood;
- A focus on the autonomy of the adult with a less intrusive and less restrictive approach; and
- Decision making that focuses on the best interests of the adult and how the adult would have made the decision if capable.
WHERE AN ADULT GUARDIAN OR TRUSTEE MAY BE APPOINTED BY THE COURT
Under the AGTA, an Adult Guardian or Trustee may be appointed for adults:
- who are 18 years of age or older;
- who have had a capacity assessment completed that indicates they lack capacity to make personal and/or financial decisions;
- where less intrusive and less restrictive options are not likely to be effective;
- who may be vulnerable because of a permanent or temporary disability or illness;
- who don’t have a personal directive and need someone to make personal decisions for them (guardianship);
- who do not have an enduring power of attorney and need someone to make financial decisions for them (trusteeship);
- who do not have the capacity to make a power of attorney (trusteeship); and
- who have assets or financial interests in need of protection (trusteeship).
CAPACITY OF THE ADULT IS A FUNDAMENTAL DETERMINATION
The capacity of the adult in question is a fundamental part of the legal process to determine whether an Adult Guardianship or Trusteeship is required, and adults are presumed to have capacity under the AGTA. Capacity in decision making means the ability to understand information that is relevant to the decision and to appreciate the reasonably foreseeable consequences of a decision and a failure to make a decision.
Applications to the Court for either a Guardianship Order or Trusteeship Order require a capacity assessment of the adult in question, and the capacity assessment in Alberta must be conducted by a physician, psychologist or other health care professional designated as a capacity assessor with specific training in this area.
GUARDIANSHIPS AND TRUSTEESHIPS ARE GRANTED IN EXCEPTIONAL CIRCUMSTANCES
It should be kept in mind that an Adult Guardianship or Trusteeship is not the norm and is only granted by the courts in exceptional circumstances. As the public watches Spears’ legal battles over her conservatorship play out in the media, many will probably wonder if the same type of situation could occur in Alberta. In our view, Spears’ recent vocal opposition to her conservatorship, as well as her powerful testimony in court to that fact (detailing the trauma that she has experienced as a result of the conservatorship, and her stated belief that the conservatorship is abusive), would clearly contradict two of the AGTA’s guiding principles: (1) the best interests of the adult in question, and (2) the autonomy of the adult in question, with a focus on the least intrusive and least restrictive approach. Furthermore, there doesn’t appear to be any suggestion that Britney lacked capacity to make financial or personal decisions.
Many of the provisions in the AGTA, including provisions for judicial review of the Guardianship Order or Trusteeship Order or of a capacity assessment determining that an adult lacks capacity, are meant to safeguard against the abuses of power that Spears is alleging occurred in her case. Under the AGTA, the capacity assessment focuses on the adult’s ability to understand information that is relevant to decision making and to appreciate the reasonably foreseeable consequences of a decision and a failure to make a decision. If the Spears case were to proceed in Alberta, upon Britney’s demonstrated ability to make both personal and financial decisions, it would be extremely unlikely that an Alberta Court would grant a Guardianship or Trusteeship Order.
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- 1Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2.