Lawyers all over the state of Tennessee are scratching their heads about the Michael Oher conservatorship and the ensuing litigation.
On Aug. 9, 2004, a lawyer in Hernando, Mississippi, filed a petition on behalf of Sean Tuohy and his wife, Leigh Anne Tuohy, to be appointed conservators over Michael Oher (the “Respondent”). The petition states that the court should grant the Tuohys “full co-legal custody, guardianship and conservatorship” over Oher.
Although the petition asks that the Tuohys be named conservators over “the person” of Oher, which would mean they would have the power to make decisions about healthcare, they also requested that Oher not be allowed to enter into any contracts on his own behalf.
The petition goes on to say that Michael Oher “has no known physical of psychological disabilities.” The petition is signed by the Tuohys, by Oher’s mother and by Oher.
Three months later, without any further pleadings being filed, the judge awarded the Tuohys the ability to make all medical decisions for Oher. His right to enter into contracts was also taken away and given to the Tuohys.
How conservatorship is supposed to work in Tennessee
For the next 19 years, the court never required any proof of disability nor did the court require accountings or annual status reports.
This is not how the law of conservatorship works in Tennessee. A court is required to find by clear and convincing evidence, based at least in part on the report of a physician, that the respondent is fully or partially disabled and that he or she is in need of assistance from the court. Rights are then removed from the respondent and vested in the conservator.
There is no “custody” or adoption proceeding that goes along with a conservatorship. The Tuohys could have adopted Oher, even though he had reached 18 years of age. An adoption, however, is fundamentally different than conservatorships and does not remove any rights from a child.
Under Tennessee law, conservators are required to file an accounting and a status report once a year. No accountings or status reports were ever filed in the Oher case.
Michael Oher was a son “but not in the legal sense”
In August, 2023, 19 years later, Michael Oher filed his own petition to terminate the conservatorship and require the Tuohys to account to him.
The Touhys have filed an answer. They claim that they never told Oher that they were going to adopt him and that their sole motivation in pursuing the conservatorship was to enable Oher to play for the University of Mississippi (“Ole Miss”), which would have been forbidden under NCAA recruiting rules if they were supporting Oher and he was not a part of their family. They state that they referred to Oher as a son, felt that he was like a son, and “have used that on occasion but not in the legal sense.”
My very limited research shows that the Tuohys have a book on Amazon.com for which they are listed as co-authors and which is called: “In a Heartbeat: Sharing the Power of Cheerful Giving.” The description of the book refers to the “remarkable couple depicted in ‘The Blind Side’” and the “story of Michael Oher and the family who adopted him.
The judge over the Oher case in Memphis, Kathleen N. Gomes, entered an order at the end of September terminating the conservatorship but retaining the other issues, i.e., Oher’s action for accountings and damages.
More will be revealed as this lawsuit progresses, but the case is disturbing. An 18-year-old could be confused by the language of the original petition which refers to guardianship and custody along with conservatorship. Moreover, the Tuohys seem to have profited from the story about adopting Oher in many ways, only one of which may have been financial.
Barbara Moss is founder of Elder Law of Nashville PLC.
This article originally appeared on Nashville Tennessean: Memphis judge ended Michael Oher’s conservatorship.