Blind Sided, The Dangers of Conservatorship

 

In 2009, the heart-warming story detailing Michael Oher’s life became a smash hit at the box-office in The Blind Side. The movie would go on to make over 300 million dollars globally. Yet in his petition filed in August against his conservators, the Tuohy family, Oher alleges that he received nothing from these proceeds while his conservators received millions. Oher’s petition also alleged that the document granting 20th Century Fox, the studio who profited from the movie, the perpetual, unconditional, and exclusive rights to Oher’s story without an exchange for payment was not signed by Oher. In his petition, Oher sought to have his conservatorship ended and for all of the financial records that were required to be kept by the Tuohy family. 

 

Prior to meeting the Tuohy family, Oher was a ward of the state of Tennessee who frequently spent his nights at classmates’ homes. Consequently, when the Tuohy family indicated that they wanted to adopt Oher, but as Oher was eighteen at the time, a conservatorship was instead drawn up. The 2004 conservatorship filing indicated the Tuohy family would have full control over Oher and that he would not be able to contract or make medical decisions for himself. Critically, for this filing, Michael Oher had no diagnosed mental or physical disabilities. In deciding to remove the conservatorship in September, the Shelby County Probate Court noted that they had never seen a conservatorship of this nature used for someone who was not disabled.

 

 

Under the statute governing conservatorship in Tennessee, it is clear that the state intended for the statute to only touch those with disability. The section of the statute that lays out who may be appointed as a conservator explicitly states that the individual appointed to act as a conservator should be done in order to achieve the best interests of the “person with a disability.” The statute further addresses the need for a physical or psychological examination prior to entering into a conservatorship. A step that was unfortunately ignored in the instance of Michael Oher’s 2004 filing. 

 

 

In the case of Michael Oher, it seems abundantly clear that this conservatorship should not have been imposed as he lacked a requisite disability. Even if the conservatorship was warranted, however, the overriding issue is that his conservators did not necessarily act in his best interest when they signed away the rights to his story with 20th Century for no payment in return. However, in instances where conservator abuses their authority, it can be difficult for a ward of a conservatorship to remedy the situation. 

 

In Tennessee, an individual within a conservatorship can petition the court to have an attorney appointed to assist the individual in matters concerning the conservatorship. If an individual for example wants to contest the validity of the conservatorship, they can ask the court to appoint an attorney on behalf of them to aid them in their petition. However, even with a court appointed attorney it can be an uphill battle for an individual seeking to escape a conservatorship. While a court appointed attorney is expected to act in the best interest of the individual bound by the conservatorship, it does not necessarily mean they will do so.

 

In a 2009 New Jersey case, an attorney appointed to represent a ward within a conservatorship formed an attorney-client relationship with the individual who was acting as the conservators for the ward in guardianship proceedings. Guardianship differs significantly from conservatorship as conservatorship is generally voluntary and does not require an individual to be mentally incompetent. This created a conflict of interests between the two clients as a guardianship may impose restrictions on the ward of the conservatorship that they never sought to be bound by. 

 

In this case, this failure to act in a proper manner resulted in the disbarment of the attorney for improperly handling this conflict of interest. Consequently, there are times when even a court appointed counselor will not act in the best interests of a ward of a conservatorship, but once an individual is placed in a conservatorship, they may sacrifice much of their ability to obtain a representation that will advocate zealously on their behalf. For example, Britney Spears was not able to obtain counsel of her own choosing for more than 13 years while in her conservatorship. 

 

 

Determining whether a conservator once appointed might start using their authority against the interests of a ward might be an impossible task for a court to determine at the outset. A court may likewise find it an impossible task to recognize if an advocate they appoint on behalf of the ward of a conservatorship will always act in their best interest. However, in cases where there could be a conflict of interests because of financial gain, the court should examine the appointment of a conservator with extra scrutiny.