Michael Oher has had a remarkable life so far. Born to a single mother struggling with addiction and growing up in and out of foster care, Oher went on to star as a University of Mississippi football player and was selected in the first round of the 2009 NFL draft. He played eight seasons in the NFL, won a Super Bowl in 2016, and is the subject of a book that inspired an Oscar-winning movie, The Blind Side.
Sean and Leigh Anne Tuohy, the Tennessee couple that took Oher into their home when he was in high school and were appointed as conservators of his estate, are featured prominently in The Blind Side. But Oher has recently alleged that, contrary to the movie’s portrayal of events, the Tuohys never actually adopted him. Oher alleges that the Tuohy’s instead tricked him into agreeing to the conservatorship and unjustly profited from his trust in them.
While the accusations will play out in court, they raise questions about conservatorships, when they are necessary, and how they affect estate planning.
What Is a Conservatorship?
A conservatorship is a court-ordered arrangement that gives one person (or multiple people), called a conservator,legal authority to manage the affairs of another person, known as a conservatee or ward.
Most jurisdictions – including Tennessee, where the Michael Oher conservatorship was created – recognize two types of conservatorships:
- A conservatorship of the person authorizes a conservator to manage the personal affairs of the conservatee, including their healthcare and living arrangements.
- A conservatorship of the estate grants the conservator the authority necessary to supervise the conservatee’s financial affairs, such as managing their money, paying their bills, and in some instances, setting up an estate plan for them.
Conservatees are often children, but they can also be adults who are incapacitated, have developmental or age-related disabilities, or are otherwise deemed by the court to be unable to handle their own financial or personal affairs. A famous example of this is the Britney Spears conservatorship that was set up following her pattern of erratic behavior and placement in a psychiatric hospital for observation. In Spears’s case, her conservatorship was split into two parts – one for her estate and finances and one for her as a person.
A conservatorship may be established following a court petition by a friend or relative asking for the appointment of a conservator. The petition must explain the basis for establishing the proposed conservatorship. In many cases involving adult conservatorship, the petition must indicate that the conservatee is at risk of either injury to their person due to their inability to manage their daily needs or make medical decisions, or that they are at risk of financial exploitation or involuntary depletion of their assets. Following an investigation and a hearing, the court decides whether a conservatorship is warranted.
If a conservatorship is granted, a conservator is named, and their specific powers are set out in a court order. Typically, the court requires that conservators file annual financial accountings or plans for the care of the person, depending on the type of conservatorship.
Michael Oher’s Conservatorship
In 2004, shortly after Oher turned 18 and about two months before he signed on to play football at Ole Miss, a Tennessee judge entered an order establishing a conservatorship over Oher with the Tuohys as conservators. At the time, the conservatorship was established with the permission of Oher as well as his biological mother. According to the conservatorship filing, a judge declared that the Tuohys “should have all powers of attorney to act on his behalf and further that Oher shall not be allowed to enter into any contracts or bind himself without the direct approval of his conservators.”
Legal experts say the 2004 filing for a conservatorship of the person is unusual because Oher had “no known physical or psychological disabilities.” The petition notes that he was a good student and made the dean’s list his sophomore year.
In an August 14 petition to terminate the conservatorship, which was allegedly scheduled to end when Oher was 25 years old, Oher claimed that the Tuohys deceived him and did not act in his best interest as conservators. His petition stated that he did not understand that he was giving up his right to contract for himself, the Tuohys misrepresented the conservatorship as an adoption, and that “the lie of adoption” enabled the Tuohys to enrich themselves at the expense of Oher, including from film royalties.
In addition to seeking to sever the conservatorship, the lawsuit filed by Oher sought a full accounting of assets; an injunction prohibiting the Tuohys from using his name, image and likeness; compensatory and punitive damages; and costs and attorney’s fees.
Adoption versus Conservatorship
Adopting Oher would have made him a member of the Tuohy family, no different in the eyes of the law than the Tuohys’ two birth children. Adoption would also have allowed Oher to retain power over his own financial affairs—a power that he surrendered under the conservatorship.
The Tuohys say they are blindsided by Oher’s accusations that they profited from the conservatorship. Their version of events portrays the conservatorship as necessary to help Oher with a driver’s license, health insurance, and the college admissions process. Sean Tuohy said he was advised by lawyers at the time that adoption was not an option because Oher was 18 and a legal adult.
Many states, including Tennessee, however, allow adult adoption. Adoption laws in Tennessee permit a person to be adopted at any age. When the adoptee is over the age of 18, consent from birth parents is not needed—only the consent of the adopted adult. This law is apparently not new. As part of a fact check about adult adoptions in the state, a Tennessee adoption attorney told Fox 13 Memphis that they have been doing them for decades.
Conservatorships and Estate Planning
The Tennessee judge overseeing the case has signed an order ending the conservatorship. However, Oher’s accusations against the Tuohys will still have to play out in court. Among the legal questions to be answered are whether the Tuohys filed an annual report with an accounting of Oher’s finances with the probate court and if they have received money on Oher’s behalf and properly disbursed it to him.
Conservatorships, illustrated by the Michael Oher and Britney Spears cases, can sometimes lead to family feuds about the intentions of a conservator toward a ward. Taking away somebody’s legal rights to make decisions – and giving those rights to somebody else – is often reserved only for extreme situations, such as when somebody is brain injured, suffers a stroke, is in a coma, or develops dementia.
In such cases where the court declares that a person is unable to manage their own affairs, a conservator may be appointed. One of the rights the court may give to the conservator is the right to make an estate plan for the conservatee. Depending on the situation and specific authority granted to the conservator, however, a person subject to a conservatorship may still have the capacity to set up their own estate plan. The ward may also later revoke or amend a conservator-drafted estate plan if they can show that they possess testamentary capacity or their rights delegated by the court are restored.
Given the restrictive nature of a conservatorship and the lengthy court process to establish it, families may want to avoid conservatorship except when there is an imminent need that cannot be addressed through less restrictive means. If estate planning documents like powers of attorney for finances and healthcare are already in place, the family can avoid conservatorship and step in to manage finances or make important decisions the second it becomes necessary.
Plan Early and Often to Avoid Difficult Choices Later
Failure to plan for all possibilities – even those we would rather not think about – can have unintended consequences. If you neglect estate planning considerations now, you could limit your future options around issues like conservatorships, probate, and inheritance.
Maybe there is an adult member of the family whom you never legally adopted but would like to adopt now for estate planning purposes. There might be lingering questions about what would happen to you, your spouse, your adult children, or your aging parents if disability or incapacity suddenly struck. Alternatively, it could be the case that a loved one is already showing signs of dementia and may not have the capacity to execute estate planning documents.
Our estate planning attorneys are in the business of addressing these sensitive questions in a professional and legal manner and creating a plan that leaves nothing to chance. To start planning today, contact our office and schedule a meeting.
At Cheever Law, APC, we don’t just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love, starting with a valuable and educational Life & Legacy Planning Session. This will allow you to get more financially organized and make the best choices for the people you love. If you have already completed your estate plan, we will review that plan at your Life & Legacy Planning Session to ensure that it will work the way you intend and address any holes or gaps that may be present if circumstances have changed since you executed your plan.
To learn more about our one-of-a-kind systems and services, contact us or schedule a no-obligation 15-minute introductory phone call today.