Overprotected: Section 3 Counsel & Britney Spears
On July 14, 2021, Britney Spears was granted the right to hire her own lawyer to free herself from her conservatorship. The Ontario equivalent is a “‘guardianship” not “conservatorship”. You can read more about the differences between a guardianship and conservatorship here.
Previously, Spears had a court appointed lawyer, Samuel D. Ingham III. We do things differently in Ontario, but you could say that Britney’s court appointed lawyer is similar to what we have here called “section 3 counsel” per the Substitute Decisions Act (SDA) 1992, S.O. 1992, c.30 (s.3).
What is section 3 counsel?
Section 3 of the SDA as amended, states:
Counsel for person whose capacity is in issue
3(1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act,
- the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and
- the person shall be deemed to have capacity to retain and instruct 1992, c.30, s.3(1).
Responsibility for legal fees
- If legal representation is provided for a person in accordance with clause (l)(a) and no certificate is issued under the Legal Aid Services Act, 1998 in connection with the proceeding, the person is responsible for the legal 1992, c. 30, s. 3( 2); 1998, c.26, s.108.
- Nothing in subsection (2) affects any right of the person to an assessment of a solicitor’s bill under the Solicitors Act or other review of the legal fees and, if it is determined that the person is incapable of managing property, the assessment or other review may be sought on behalf of the person by,
- the person’s guardian of property; or
- the person’s attorney under a continuing power of attorney for property. 2009, c. 33, 2, s. 71(1).
Section 3 of the SDA states that, where the capacity of a person is at issue in a proceeding, that person will be deemed to have the capacity to instruct counsel for the purposes of that proceeding.
What are the duties of s. 3 counsel?
The leading case of Sylvester v. Britton 2018 ONSC 6620 lists the duties of section 3 counsel:
- Seek instructions from [the individual] and act on those instructions;
- Keep confidential all communications with [the individual] and all information that he/she obtains from the individual or on the individual’s behalf;
- Diligently and ethically advance [the individual’s] interests in accordance with her instructions;
- Ensure that legal, procedural and evidentiary requirements are tested;
- Make [the individual’s] position or wishes known to the court; and
- If [the individual] lacks capacity to provide instructions at any point in the litigation, promptly take steps for the appointment of a litigation
Section 3 counsel is still required to follow Spears’ instructions, advocate on her behalf and determine if the client has the capacity to provide instructions – this is essentially the role of counsel.
Spears’ prerogative to counsel
Spears’ fundamental right to choose her lawyer has now been restored. In Ontario, this would mean that her lawyer has been satisfied that Spears has capacity to instruct him or her and she does not require to continue to be deemed to have the capacity for the purposes of instructing counsel. This supports her case as it illustrates that she has the capacity, and a guardianship/conservatorship is not required.
For someone who has had all her decision making and financial freedom taken away, having the chance to make a major life altering decision in choosing her advocate is a matter of significance.
Despite s. 3 counsel being court directed, the legal fees of s. 3 counsel would still be borne by Spears (in this hypothetical) . From section 3(2) of the SDA, appointed counsel would be permitted to reimburse themselves from Spears’ funds for the work on her file. If the legislation is similar to Ontario, Spears is still responsible for her court appointed lawyer’s fees.
Overall, Spears being able to choose her own lawyer may be indicative that she has the capacity to instruct counsel and doesn’t need to be deemed to be able to do this by the courts. With the free Britney movement, it is a hopeful step for Spears to be rid of what she would say is a “toxic” relationship with her father.