07 Sep Blind Trust? Was Michael Oher Or The Touhys Not Protected From The Blind Side?
The Oscar-nominated film “The Blind Side” will never be seen in the same light after the recent petition by Michael Oher to terminate the rights of Sean and Leigh Anne Touhy to act as the conservator for the 37-year-old former football star who played in the NFL after playing college football at Ole Miss. His suit has demanded an accounting to see if the Touhys profited from his name, image and likeness or made additional profits from the well-known movie starring Sandra Bullock. The feel-good story (about a poor teenager who had been in the Tennessee foster care system before taken into the home of a wealthy family) has turned ugly.
The Touhys were able to get a court-ordered conservatorship when Oher turned 18. They said it was to help Oher get health insurance, college admission and driver’s license. They indicated it was the fastest way to alleviate NCAA recruiting concerns about an alum trying to get the highly touted recruit to Touhys alma mater (Sean played on the Ole Miss basketball team and Leigh Ann was a cheerleader there). Adoption is a much lengthier process. It would be a violation of NCAA rules for a booster to provide benefits to a recruit to steer the recruit towards the college of the booster unless there was some relationship (i.e., parent, guardian or, in this case, conservator). The Touhys brought Oher into their home and provided for him. This would have been a clear violation of NCAA rules if they didn’t take further action. The Touhys were most considerate in bringing Oher into their home when he was 16. However, they didn’t seek guardianship over him while he was under the age of majority (18). Under Tennessee law, guardianship can be achieved until one reaches age 18. After age 18, conservatorship could be sought.
There are 2 different types of conservatorships in Tennessee: (1) conservatorship of the estate (similar to guardianship of the estate in Texas) gives the conservator the power over the person’s (ward’s) finances, including income or assets due to the person’s inability to manage assets or property, and (2) conservatorship of the person whereby the conservator makes medical decisions for the ward. Conservatorship is usually for an individual with intellectual or developmental disabilities. Conservatorship of the person should remove only those rights where the individual lacks decision-making ability. However, the judge permitted the conservatorship without any medical affidavit which is normally required to show he was disabled. So even though Tennessee law requires proof of disability (this article is not to be construed as to giving legal advice under Tennessee law), this did not occur when Oher turned 18 relying on Oher consenting to the conservatorship. If someone lacks mental capacity, would they have the capacity that some of their rights would be taken from him or her? If Oher wasn’t disabled, should there even have been a conservatorship? Furthermore, an ad litem (an attorney acting on behalf of the ward) is often appointed to represent the ward before any rights are taken away. That did not occur.
In this case, Oher consented to conservatorship without legal representation (it is not mandatory). Usually there is a psychological exam to determine if there is a disability – although in this case the judge allowed conservatorship based solely on the family’s testimony. The judge approved the Touhys to be conservator of the person when he was 18 in Tennessee. Additionally the judge made the head-scratching decision requiring Oher’s financial decisions such as contracts to be negotiated by the Touhys. So, although the court order was for conservatorship of the person, the judge expanded that to include powers normally only permitted to a conservator of the estate. Conservators of the estate are usually required to give an accounting to the court. No accounting was done in the 19 years of conservatorship. They remained conservators until after the petition by Oher alleging the Touhys profited at his expense and misleading him to agree to be conservators instead of adopting.
The Touhys never did adopt Oher. In fact, they have been estranged for approximately 10 years. However, even if conservatorship was simply quicker and Oher was part of one happy family, as portrayed in the book and movie, it does raise the question of why he was never adopted. Under the law, an adult can be adopted. Furthermore, why is this coming out now – 19 years later? Did Oher not know the difference between conservatorship (where rights of the ward are relinquished) and adoption (officially becoming a family member which gives the individual other rights such as under inheritance laws benefiting a child if a parent passed without a will). However, Oher’s own book written over 10 years ago indicates he knew that he was under conservatorship. If one thought that he simply wasn’t bright, that could be refuted since he graduated from Mississippi and even made the dean’s list. Although this is different from the “Free Britney” issue where her father was the conservator of Britney Spears’ estate, it does make one wonder what took so long for this request. Is it an attempt to pressure the Touhys into some sort of settlement (the Touhy’s made millions through owning fast-food franchises)? Was it revenge for being misled and never being adopted? Did the Touhys use Oher’s story to enrich themselves using Oher’s name, image and likeness? Did Oher simply not like his depiction in the book and movie as failing to be the sharpest tool in the shed?
In many states (including Texas), the court is supposed to consider less restrictive alternatives such as medical and financial powers prior to taking away rights as occurred here. Although the conservatorship of the person was limited, it would seem that Oher did not have an intellectual disability.
One of the attorneys for the Touhys said each family member (including Oher) received $350,000 after taxes and agent fees in connection with “The Blindside”. Others say each family member received $225,000. The payments for the Blind Side (which grossed over $300 million) to family members and Oher should be easy to ascertain. The more interesting question is to see if the Touhys used Oher’s name, image and likeness to profit in any way which would entitle Oher to damages. The judge ordered an accounting which is due in September.
The answers to the questions herein are presently unknown. Oher probably thinks he blindly trusted the Touhys. The Touhys feel “blind-sided”. Neither should turn a blind eye.
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