If you didn’t see the news recently, the family at the center of the 2009 movie (based on a 2006 bestselling book), “The Blind Side,” has been sued because of a legal maneuver allegedly pulled 20 years ago. The story involves a then-16-year-old impoverished Michael Oher who believed he was being adopted into the wealthy Tuohy family. An adoption creates a parent-child relationship; the lawsuit suggests what really occurred was quite different.

Rather than adopting Oher, Leigh Anne and Sean Tuohy were granted a conservatorship over him. So, what is a conservatorship and how does it differ from other relationship distinctions? This article uses language from Virginia laws which govern conservatorships but Tennessee law, where the Oher conservatorship was granted, is similar and the outcome should be the same. As used below, the person asking to be appointed as the conservator is the petitioner and the person subject to the potential conservatorship is the respondent.

A conservatorship grants a person, the conservator, the power to control the finances of another person, the conservatee. When a conservatorship is granted, the conservatee is also stripped of the ability to take the actions which the conservator has been granted the power to perform. Meaning, if a conservator has been granted the authority to control the conservatee's finances, then the conservatee is unable to control their finances. The conservatee cannot write a check, withdraw cash nor pay for anything. The only person who may do so is the conservator, on behalf of the conservatee.

Conservatorship is different from a power of attorney. With a power of attorney, a person, the attorney-in-fact, is granted authority to take action on behalf of another person, the principal. However, the principal retains the ability to act on their own. A power of attorney is just a contractual agreement between two people authorizing A to do things for B which B may do as well. A conservatorship is a court order which transfers powers from one person to another.

The purpose of a conservatorship is to protect those who are unable to care for themselves. The sole reason a conservatorship may be granted is because the conservatee is incapacitated. The incapacitation could be due to illness, such as dementia, or a legal incapacity such as being a minor or being incarcerated.

At the time the Tuohys were granted the conservatorship Oher was 18, an adult. Therefore, the only reason the conservatorship should have been granted is if the judge found him unable to effectively receive and evaluate information sufficient enough to care for himself. Making bad decisions is not enough to grant a conservatorship. So, who determines if someone is unable to meet the required standard of competency?

A medical professional’s opinion that the respondent is incapable of caring for himself must be filed with the petition. That means an expert opinion is required, not just testimony from a child that the parent has changed and/or become incompetent. A medical opinion was not present in the Oher case. The judge who granted the conservatorship even noted in the order Oher was competent but granted it anyway because he and his mother agreed with the petition.

If the respondent agrees with the petitioner they should be subject to a conservatorship is that enough to have it granted? Well, there is a saying that if you know you are insane, you are not insane. So, if you know you need a conservator, do you need a conservator? What protections are there for a person subject to a petition for a conservatorship? In the opinion of this author, the protections given to a respondent should have prevented the Oher conservatorship from being granted.

In a conservatorship the respondent is entitled to two layers of legal protection. When the petition is filed the Court must appoint the respondent a Guardian Ad Litem, GAL. A GAL is an attorney appointed to advocate for the best interests of the respondent. This is different from an attorney representing a client. An attorney representing a client must advocate for what the client wants, even if the attorney does not think it is in the client's best interests. A GAL is not concerned with what the respondent wants, rather the GAL is only concerned with advocating for what the GAL thinks is in the respondent's best interests.

A GAL is most common in child custody proceedings. The attorney for each parent advocates for what the parent wants. The GAL advocates for the child's best interests.

In addition to a GAL the respondent is entitled to his own attorney, even if he cannot afford one. In situations where the respondent declines an attorney the judge must still appoint one for the respondent if deemed necessary. Oher is claiming he was tricked into the conservatorship because he thought he was agreeing to an adoption. There does not appear to have been either a GAL nor attorney for Oher in his proceeding. If he’d had either a GAL or an attorney he would have understood what the Touhys were advocating for as both attorneys would have had an obligation to explain it to him, or to inform the judge he was under the incorrect belief it was an adoption proceeding.

Obtaining a conservatorship is not easy, but facts now coming to light show the Oher conservatorship was easy. Whether or not the conservatorship should have been granted, and this author believes it should not have been, it was. Until a court order overturns it, it is valid, and binding. It is also apparent all parties ignored it once it was entered, which could have caused significant problems for Oher. Once the order was official his ability to enter into a contract no longer existed. It was up to the Touhys to sign contracts on behalf of Oher. Any contract Oher signed was subject to being declared invalid.

So, consider this scenario: After he was drafted by the Baltimore Ravens Oher signed a contract that guaranteed him $4 million. What if during his first practice he suffered a career ending injury. If the Ravens then learned Oher was under a conservatorship at the time he signed the contract, do you think the Ravens would have paid out - or would they have filed suit to invalidate their obligation to pay him the $4 million?

Not all family disputes involve multi-million dollar NFL contracts or blockbuster movies but every case is important to the family involved, and every case has its own nuances. If you need help navigating the intricacies of family law, contact Todd Knode (tknode@setlifflaw.com) at 804-377-1277 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.