by Reagan Hanna, Associate Member, University of Cincinnati Law Review Vol. 92
In late 2009, the film production of the book The Blind Side was released.1Michael A. Fletcher, “Blind Side” Subject Oher Alleges Tuohys Made Millions Off Lie, ESPN (Aug. 14, 2023), https://www.espn.com/nfl/story/_/id/38190720/blind-side-subject-michael-oher-alleges-adoption-was-lie-family-took-all-film-proceeds. This movie depicts the story of a struggling young man, Michael Oher, taken in and supposedly adopted by Sean and Leigh Anne Tuohy.2Id. With the help and support of the Tuohys, Mr. Oher had a stable place to live, graduated college, and was drafted into the National Football League.3Petition to Terminate Conservatorship, for Accounting, and Other Relief at 3, In Re: Michael Jerome William, Jr. a/k/a Michael Jerome Oher, No. C-010333, (Tenn. Prob. Ct. Aug. 14, 2023). However, in February 2023, Mr. Oher discovered that he was never adopted by the family.4Id. Rather, Mr. Oher agreed to a conservatorship, which is vastly different to adoption.5Id.
Mr. Oher filed a Petition to Terminate Conservatorship, for Accounting, and Other Relief against the Tuohy family on August 14, 2023.6Id. at 11-12. Mr. Oher believes his conservators, Sean and Leigh Anne Tuohy falsely mislead him and the public into believing he was adopted.7Id. at 5. He specifically alleges that they used his name and likeness to create public misrepresentations about the relationship for the benefit of the Tuohy’s foundation.8Id.
The 2004 conservatorship agreement states that as the conservators, the Tuohys would have all powers of attorney, approval of all contract and agreements that bound Mr. Oher, authority to make medical and educational decisions, andaccess to all his medical and school records.9Id. at 4. However, Mr. Oher was never truly aware of his rights under this agreement and the situation.10Id.
Additionally, in 2006, the Conservators began contract negotiations on The Blind Side, allowing Mr. Oher to sign away his unconditional right to the story and proceeds.11Id. at 5-6. An “Amendment to Life Story Rights Agreement” initiated payments to the Tuohys; however, a similar agreement was not made on Mr. Oher’s behalf.12Id.at 7. Ultimately, Mr. Oher has petitioned the Shelby County, Tennessee Probate Court to remove the Tuohys as conservators, terminate the conservatorship filed in 2004, grant other relief resulting from the failure of his conservators to act in his best interest, and abuse of their conservator status.13Id. at 9.
This article explores the legal and ethical implications of electing to utilize a conservatorship in this type of scenario and how others in similar situations could be affected. Part II provides background on the law on conservatorships and how financials are handled for a person under a conservatorship. Part III discusses how Mr. Oher’s situation interplays with the law, how it could play out as the case progresses through the courts, and how the challenges may be handled better by the law in the future. Finally, Part IV concludes by focusing on the potential outcome of the case and the best way to marry the law and ethics.
A conservatorship is a legal mechanism used when the court believes a minor or incapacitated person needs assistance and appoints a guardian to manage their financial and personal affairs.14Conservatorship and Guardianship, Fam. Caregiver All., https://www.caregiver.org/resource/conservatorship-and-guardianship/ (last visited Oct. 5, 2023). However, where a person is either a minor, a person with a disability, or one lacking capacity, the law provides a few avenues of relief. While the age of that person may determine which route to take, such avenues may include a power of attorney, adoption, or entering into guardianships and conservatorships.
A basic option that allows a person, the agent, to assist an adult, the principal, is through a power of attorney. A power of attorney is a form of assistance allowing an agent to take legal action for their principal that they themselves would take such as opening a bank account.15General Power of Attorney, Legal Info. Inst., Cornell L. Sch., https://www.law.cornell.edu/wex/general_power_of_attorney (last visited Oct. 2, 2023).
Another relevant approach is adoption. Generally, an adoption is where the legal relationship between parent and child is established through court order but does not differ from that of a biological relationship.16Tenn. Code Ann. § 36-1-102 (West 2023). An adopted child effectively has the same relationship with the adoptive parents as if it were a true biological parent-child relationship.17Tenn. Code Ann. § 36-1-121 (West 2023). However, those who may be adopted include any person regardless of birthplace, citizenship, or residency, including an adult.18Tenn. Code Ann. § 36-1-107 (West 2023).
Under Tennessee law, the court may limit and take away the decision-making powers and duties from a person with a disability, lacking the capacity in some way, shape or form, and places that decision-making responsibility in the hands of a conservator forming a conservatorship.19Tenn. Code Ann. § 34-1-101 (West 2023). However, the crux of a conservatorship is that unless there is clear and convincing evidence that a person is fully or partially disabled and in need of some assistance, then a conservator may not be appropriate.20Tenn. Code Ann. § 34-1-126. A fiduciary can also be used to describe a conservator, while a ward can be used to describe a person under the control of the state with a disability.21Tenn. Code Ann. § 34-1-101.
As conservator of both a person and that person’s property, a conservator has an obligation to take an oath of faithful performance.22Tenn. Code Ann. § 34-1-109. However, faithful performance includes both ethical and legal duties. Ethically, a conservator must act in the best interest of the person with a disability to remain a conservator.23Tenn. Code Ann. § 34-3-108. Conservators may exercise decision-making rights and duties for the ward in areas where the person with a disability lacks capacity to do so.24§ 34-1-101. Legally, conservators have a statutory duty to timely file each required inventory and accounting of assets especially related to the spending of money which may only be approved by the court.25§ 34-1-126. Conservators have statutory fiduciary duties to protect the interests of the ward financially. The potential for abuse of power over a ward’s finances is limited by the court.26Tenn. Code Ann. § 34-1-111. The court requires that the conservator(s) file an annual accounting and inventory of expenditures accompanied by receipts, bank statements, and verification of assets.27Id. Each year alongside the financial accounting, a statement must be included that explains the physical or mental condition of the ward to advise on whether the person still requires the conservatorship.28Id.
A conservator may be discharged for several other reasons, including failing to act in the best interests of the person with a disability, the person is no longer disabled, or failing to fulfill statutory fiduciary duties.29Tenn. Code Ann. § 34-3-108. If a conservator does not comply with the annual accounting requirement, that is grounds for a notice, hearing, and potential removal.30Id.
Similarly, the court has legal responsibilities to stay up to date on its cases. The court has the duty to notify the fiduciary and the fiduciary’s attorney of record if the fiduciary fails to file the annual accounting.31§ 34-1-111.Subsequently thereafter, the fiduciary has thirty days to produce the accounting and if upon failure again, will be summoned to show cause.32Id. After multiple chances, if an account filing is not made, the court can revoke the fiduciary’s authority and appoint a substitute.33Id.
Either way, the court may come forward on its own if it believes there are statutory violations of the fiduciary. Additionally, the ward themselves may petition the court to modify or terminate a conservatorship.34Id.
Because Mr. Oher believes the Tuohys used his conservatorship to benefit from his own work and life, he hopes to recover his dignity as well as his rightfully owned money.35Petition to Terminate Conservatorship, supra note 3.Intuitively, this raises several legal and ethical questions regarding the events that occurred before and during his conservatorship. Throughout his entire adult life, Mr. Oher believed he was adopted into the family. This warrants the question of whether the family may have chosen a conservatorship in the interest of themselves.36Id. at 3. This Part discusses both what the conservator’s and the court’s legal and ethical duties are throughout a conservatorship.
A. The Conservator’s Legal and Ethical Duties
As a ward of the state, Mr. Oher’s best interest would have included getting him into a stable and safe home.37Tenn. Code Ann. § 34-3-108. While the Tuohys provided him with a place to live, the chance to adopt Mr. Oher while he was still a minor was not brought to the table, even though adoption was a possibility. If Mr. Oher had been legally adopted when he turned eighteen, he would have had control over his own financials and been able to contract and negotiate with his own name and likeness for himself on deals such as The Blind Side.
Even if the Tuohys made the best decision for Mr. Oher at the time and treated him like their son, that fails to explain their failure to keep up with their legal duties. According to the petition and various sources, not a single annual accounting was filed with the court during the nineteen-year conservatorship.38Petition to Terminate Conservatorship, supra note 3. Without account filings each year, the court is unable to confirm that the Tuohys, acting as Mr. Oher’s conservators, complied with their statutory duties to show the court Mr. Oher’s financials were dealt with responsibly and legally. The missing filings should have been timely addressed by the court and were grounds for the removal of the Tuohys as conservators. An inquiry into this suspect situation induces the Tuohys to produce nineteen years’ worth of financial accounting to show just what happened. However, this indicates another issue: the court system failed to fulfill its duty to follow up on delinquent conservatorship accounts.
In his petition, Mr. Oher argues that the Tuohys abused their authority and tricked him into signing multiple contracts that voided his right to The Blind Side. Therefore, when the court reviews Mr. Oher’s petition and looks back at the records with no indication of any financial accounting, it should raise red flags.
B. The Court’s Legal and Ethical Duties
The court must step in when a fiduciary does not perform their statutory duties.39Tenn. Code Ann. § 34-1-111. The court has given the Tuohy’s some leeway, but nineteen years is excessive. The court should have given notice to the Tuohys that they were in violation of their statutory duties, not only the first annual account, but the following eighteen were all well overdue. This leaves Mr. Oher at the mercy of the court. If the court is not doing its due diligence to keep conservators on track, Mr. Oher’ s best interests will not be served.
Additionally, the court has an ethical responsibility with conservatorships because the individual autonomy and rights of a person are at risk of being taken away, and a well-informed potential ward should be a priority. A key issue in Mr. Oher’s case is that he was ill-informed, both morally and legally, of the situation at hand. No one informed Mr. Oher about the rights and obligations tied to the conservatorship agreement he signed.
Considering situations such as Mr. Oher’s and to better advocate for guardianship reform, the National Conference of Commissioners on Uniform State Laws, also known as the Uniform Law Commission, drafted the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (“UGCOPAA”).40 Guardianship, Conservatorship, and Other Protective Arrangements Act, Unif. L. Comm’n, https://www.uniformlaws.org/committees/community-home?CommunityKey=2eba8654-8871-4905-ad38-aabbd573911c (last visited Sept. 21, 2023). The goal of the UGCOPAA is to provide oversight to variations of guardians and guardianship arrangements to mitigate abuse and exploitation.41Katie Robinson, Uniform Guardianship Act Recommended for Enactment by Senate Committee, Unif. L. Comm’n (Dec. 6, 2018), https://www.uniformlaws.org/committees/community-home/digestviewer/viewthread?MessageKey=62fffa0e-c746-49ea-9d84-7d2303788433&CommunityKey=d4b8f588-4c2f-4db1-90e9-48b1184ca39a&tab=digestviewer. While typically aimed at aging individuals in need of assistance, the same principles should apply to conservatorships and others in need of supervision or assistance legally.
In his petition, Mr. Oher points to a lack of evidence at the time for the basis of his conservatorship, the fact he was mentally competent, and his conservators failure to file yearly statements as to his condition.42Petition to Terminate Conservatorship, supra note 3. Subsequently, the UGCOPAA makes it a point to be a guide for courts in the determination of the “basis” for appointment of a guardian or conservator.43Id. Rules such as the UGCOPAA are working towards putting the rights of those at risk entering a guardianship or conservatorship first and presume the capacity of an adult.44Id. It resembles the notion that one is innocent until proven guilty, and similarly, that one is ideally presumed well in capacity until there is proof otherwise.45Id.
While the UGCOPAA imposes a higher standard on conservators like the Tuohys, it also imposes a higher standard of duty on the attorneys involved. For example, one point of the UGCOPAA is that the focus should be on implementing more alternatives to promote individual rights and using the least restrictive means necessary.46Id. There does not seem to be any proof that an attorney for the Tuohys or any other attorney tried to reevaluate and preserve Mr. Oher’s rights in labeling him as disabled or lacking capacity.47Petition to Terminate Conservatorship, supra note 3. Moreover, the lesser restrictive means could have been a simple power of attorney or adoption earlier on in the process.
The claim in Mr. Oher’s case is that there seemed to be insufficient proof that he lacked the capacity to be placed under a conservatorship.48Id. As a legal and ethical matter, if there would have been more emphasis on the independent screening of Mr. Oher in 2004, he may have been deemed mentally competent and in good capacity, potentially preventing this situation. As of the date of the current petition, Mr. Oher seems more than willing to submit to any examination to prove that this conservatorship should terminate.49Id. at 9.
The ruling on Mr. Ohers petition to the court hinges on whether the Tuohys can and will produce accurate account records with explanation as to why filings were not made. If the Tuohys are unable to produce those records, relief should certainly be granted for Mr. Oher, simultaneous with legal repercussions for the Tuohys. Even if those records and accounts are produced, there should be some sort of hearing and punishment for failing to comply with their statutory duties each year. If in the event the court gets the account filings and decides there has been no wrongdoing on the part of the Tuohys, Mr. Oher has offered to submit to any mental and physical screening to show the court and the world, that he is fully competent.50Id. In the event Mr. Oher is deemed competent, the conservatorship should be terminated.
Ultimately, the court must decide whether the conservatorship should be terminated and if Mr. Oher should be awarded other relief. However, the court should look at the totality of the circumstances of the Tuohy’s conduct, their failure to file required documents, the court’s failure to acknowledge and act on that failure, and the best interest of Mr. Oher. The priority of a conservatorship should be the best interest of the ward and if an ulterior motive is found, then the court should rightfully terminate and grant relief to Mr. Oher. While conservators are held to a high standard, the court should be held to a similar ethical standard to conduct adequate due diligence. If the court is not doing its own due diligence, then the court system is failing people like Mr. Oher just as much as his conservators might have been.
Note: This article was written before Judge Gomes ended Mr. Oher’s conservatorship on September 29, 2023.
- 1Michael A. Fletcher, “Blind Side” Subject Oher Alleges Tuohys Made Millions Off Lie, ESPN (Aug. 14, 2023), https://www.espn.com/nfl/story/_/id/38190720/blind-side-subject-michael-oher-alleges-adoption-was-lie-family-took-all-film-proceeds.
- 3Petition to Terminate Conservatorship, for Accounting, and Other Relief at 3, In Re: Michael Jerome William, Jr. a/k/a Michael Jerome Oher, No. C-010333, (Tenn. Prob. Ct. Aug. 14, 2023).
- 6Id. at 11-12.
- 7Id. at 5.
- 9Id. at 4.
- 11Id. at 5-6.
- 12Id.at 7.
- 13Id. at 9.
- 14Conservatorship and Guardianship, Fam. Caregiver All., https://www.caregiver.org/resource/conservatorship-and-guardianship/ (last visited Oct. 5, 2023).
- 15General Power of Attorney, Legal Info. Inst., Cornell L. Sch., https://www.law.cornell.edu/wex/general_power_of_attorney (last visited Oct. 2, 2023).
- 16Tenn. Code Ann. § 36-1-102 (West 2023).
- 17Tenn. Code Ann. § 36-1-121 (West 2023).
- 18Tenn. Code Ann. § 36-1-107 (West 2023).
- 19Tenn. Code Ann. § 34-1-101 (West 2023).
- 20Tenn. Code Ann. § 34-1-126.
- 21Tenn. Code Ann. § 34-1-101.
- 22Tenn. Code Ann. § 34-1-109.
- 23Tenn. Code Ann. § 34-3-108.
- 24§ 34-1-101.
- 25§ 34-1-126.
- 26Tenn. Code Ann. § 34-1-111.
- 29Tenn. Code Ann. § 34-3-108.
- 31§ 34-1-111.
- 35Petition to Terminate Conservatorship, supra note 3.
- 36Id. at 3.
- 37Tenn. Code Ann. § 34-3-108.
- 38Petition to Terminate Conservatorship, supra note 3.
- 39Tenn. Code Ann. § 34-1-111.
- 40Guardianship, Conservatorship, and Other Protective Arrangements Act, Unif. L. Comm’n, https://www.uniformlaws.org/committees/community-home?CommunityKey=2eba8654-8871-4905-ad38-aabbd573911c (last visited Sept. 21, 2023).
- 41Katie Robinson, Uniform Guardianship Act Recommended for Enactment by Senate Committee, Unif. L. Comm’n (Dec. 6, 2018), https://www.uniformlaws.org/committees/community-home/digestviewer/viewthread?MessageKey=62fffa0e-c746-49ea-9d84-7d2303788433&CommunityKey=d4b8f588-4c2f-4db1-90e9-48b1184ca39a&tab=digestviewer.
- 42Petition to Terminate Conservatorship, supra note 3.
- 47Petition to Terminate Conservatorship, supra note 3.
- 49Id. at 9.