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  • Written by Naomi Cahn, Professor of Law, University of Virginia
‘The Blind Side’ lawsuit spotlights tricky areas of family law

What’s the difference between adoption and conservatorship? Millions of dollars and the freedom to make your own choices, if you ask retired football player Michael Oher.

Oher, whose story was made into the 2009 movie “The Blind Side,” says he believed he signed papers to be adopted[1] by an affluent white couple, Sean and Leigh Anne Tuohy, in 2004. But papers filed in court recently indicate Oher was in fact never adopted. Rather, he has been under a court-imposed conservatorship[2] all this time. Further, it is alleged that the arrangement allowed the Tuohys[3] to “gain financial advantages” by striking deals in Oher’s name.

The Tuohys’ attorneys have pushed back[4], saying that Oher had long known he wasn’t formally adopted and that the conservatorship was necessary[5] for his college football aspirations. Their current attorney has also said he believes the long timeline for getting an adoption – compared with the relatively speedy[6] conservatorship process – played a role in their decision.

As the high-profile legal drama continues to unfold[7], Leigh Anne Tuohy’s personal website[8] still describes Michael Oher as the couple’s “adopted son.”

As a law school professor[9] who teaches trusts and estates as well as family law, I have been intrigued by the precise connections between the Tuohys and Oher. A conservatorship and an adoption are two very different legal proceedings, and the resulting relationships are entirely distinct.

What is a conservatorship?

Conservatorships are legal mechanisms to help people who can’t care for themselves or their finances – for example, due to advanced dementia[10]. They’re typically not for[11] people like Oher who have been signing their own contracts or writing their own books. The goal is to protect a vulnerable person’s well-being and their assets from being misused. Another recent conservatorship in the news, that of Britney Spears[12], was also the subject of contentious legal proceedings, although the conservator in that case was her father.

Adoption is a different legal process that results in a new parent-child relationship. Parents have certain rights and responsibilities for their children, but once a child turns 18 – regardless of whether they are adopted – they are legal adults: They can make their own medical decisions, enter into their own contracts and get married without any parental involvement. People in conservatorships don’t typically have the same kind of freedom.

In Tennessee, where the Tuohys live, parents are not required to support their children once they graduate from high school[13]. But the existence of a parent-child relationship remains meaningful even after a child turns 18. For example, parents and children may have legal inheritance rights[14], or children may be required to pay for a parent’s necessities[15].

The Tuohys say they were told that they couldn’t adopt an adult[16]. But under Tennessee law, as in many other states[17], adoption can take place at any age. To be sure, in Tennessee, anyone 14 or older needs to consent for the adoption to take place[18]. So Oher would have had to agree – which he says he thought he did.

In addition, adoption typically requires[19] ending the rights of the birth parents[20], which can be done either voluntarily or through a termination hearing. So even though Oher was over 18, the Tuohys could have adopted him – but that probably would have required ending the parental rights of Denise Oher, Michael Oher’s mother.

Tuohys’ relationship to Oher

The Tuohys didn’t file for adoption. Rather, they asked a court to appoint them Oher’s conservators, which it did.

Only a court[21] can impose a conservatorship, and only a court can terminate one. A handful of states explicitly allow for a “voluntary[22]” conservatorship – that is, one to which the person subject to the conservatorship agrees. Others, including Tennessee, seem to allow that[23] implicitly, providing for special procedures[24] when the person joins the petition.

That appears to be what happened with Oher: He joined[25] in the request for a conservatorship, and so did his birth mother. At issue is whether he knew he was doing so.

Although Tennessee law[26] requires that the court find an individual “fully or partially disabled and … in need of assistance”[27] before issuing the order on conservatorship, there do not seem to have been any claims[28] that Oher could not manage his own finances, health or living situation. The court apparently found that it was in Oher’s “best interest[29].”

Nonetheless, the Tuohys were apparently given authority to act on behalf of Oher. Although they were appointed “conservators of the person[30],” which typically does not include control over finances, they were also given authority to approve any contract that Oher wished to sign[31]. It’s unclear just what financial arrangements they undertook, other than those[32] that Oher alleges related to “The Blind Side” – he claims that a deal saw the Tuohys receive millions of dollars in royalties[33] from the film. An attorney for the Tuohys strongly denied[34] exploiting Oher, describing the lawsuit as a “shakedown”; they are reportedly preparing a legal response.

Little oversight

Conservatorships – also called guardianships in some states – can be useful to help people who cannot make their own decisions. Even then, to protect the individual’s autonomy, states typically require that conservators be given the least amount of power possible.

But there is typically very little oversight[35] over conservatorships. Generally, a conservator is supposed to provide an annual report to the court. Under-resourced courts, however, may not be able to monitor the guardianship. It isn’t even clear how many conservatorships exist in the U.S., due to uneven record-keeping[36].

There are alternatives to guardianships. In advance of any incapacity, an individual can designate a trusted person, known as an “agent,” to act on their behalf through advance medical directives or financial powers of attorney. Another option is supported decision-making, in which the individual retains decision-making authority but receives help from other people[37]. These arrangements can be informal or written as contracts[38].

Oher’s options

Oher has already asked the court to compel the Tuohys to stop using his name and image, to provide an accounting of – and an end to – the conservatorship, and to return any money which should have been paid to Oher. He is seeking information about his school records and any contracts related to the movie[39]. Outside of the conservatorship system, Oher could sue for damages in the event of any breach of fiduciary duty or fraud.

When all the smoke is cleared, maybe Oher can persuade Hollywood to make a sequel to “The Blind Side” about his struggle with the conservatorship system.

References

  1. ^ signed papers to be adopted (slate.com)
  2. ^ under a court-imposed conservatorship (www.espn.com)
  3. ^ arrangement allowed the Tuohys (www.espn.com)
  4. ^ pushed back (apnews.com)
  5. ^ conservatorship was necessary (people.com)
  6. ^ relatively speedy (sports.yahoo.com)
  7. ^ continues to unfold (variety.com)
  8. ^ personal website (perma.cc)
  9. ^ law school professor (www.law.virginia.edu)
  10. ^ advanced dementia (www.theguardian.com)
  11. ^ not for (www.npr.org)
  12. ^ Britney Spears (theconversation.com)
  13. ^ graduate from high school (law.justia.com)
  14. ^ legal inheritance rights (www.nytimes.com)
  15. ^ pay for a parent’s necessities (www.dallasnews.com)
  16. ^ couldn’t adopt an adult (people.com)
  17. ^ many other states (www.childwelfare.gov)
  18. ^ needs to consent for the adoption to take place (codes.findlaw.com)
  19. ^ typically requires (codes.findlaw.com)
  20. ^ ending the rights of the birth parents (www.findlaw.com)
  21. ^ Only a court (theconversation.com)
  22. ^ voluntary (www.americanbar.org)
  23. ^ seem to allow that (heinonline-org.proxy1.library.virginia.edu)
  24. ^ special procedures (law.justia.com)
  25. ^ joined (documents.shelbycountytn.gov)
  26. ^ Tennessee law (thehill.com)
  27. ^ fully or partially disabled and … in need of assistance” (law.justia.com)
  28. ^ any claims (www.washingtonpost.com)
  29. ^ best interest (sports.yahoo.com)
  30. ^ conservators of the person (www.caregiver.org)
  31. ^ any contract that Oher wished to sign (documents.shelbycountytn.gov)
  32. ^ other than those (www.washingtonpost.com)
  33. ^ millions of dollars in royalties (www.espn.com)
  34. ^ strongly denied (people.com)
  35. ^ very little oversight (time.com)
  36. ^ uneven record-keeping (www.eldersandcourts.org)
  37. ^ from other people (thearctennesse.wpengine.com)
  38. ^ written as contracts (supporteddecisionmaking.org)
  39. ^ contracts related to the movie (www.tennessean.com)

Authors: Naomi Cahn, Professor of Law, University of Virginia

Read more https://theconversation.com/the-blind-side-lawsuit-spotlights-tricky-areas-of-family-law-212175

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