Buried more than halfway through Michael Oher's 2004 conservatorship order is a detail that attorneys following the case describe as “troubling” and “hard to explain.”
Nearly 20 years ago, a Tennessee judge appointed Sean and Leigh Anne Tuohy to make decisions on Oher’s behalf despite finding that the 18-year-old had "no known physical or psychological disabilities."
That decision appears to contradict a Tennessee law enacted to ensure that conservatorships are imposed only on people incapable of caring for themselves. The statute requires “clear and convincing evidence” that someone is disabled and needs assistance from the court before a conservator can legally be appointed.
Judge Robert Benham noted in his conservatorship order that it was the desire of both Oher and his birth mom that the Tuohys become his conservators and that fulfilling that wish was in Oher’s “best interest.” The rising high school senior had built “a close, familial relationship” with the Tuohys, according to the judge, while living in their home for much of the previous year.
“It sounds like the court is saying this is some sort of voluntary conservatorship where Oher just gave up his legal rights to someone else,” Mollie Corn, a Chattanooga attorney who specializes in conservatorships, told Yahoo Sports. “I’ve never heard of that before. That’s not in the law.”
Or as Knoxville-based conservatorship attorney Stewart Crane succinctly put it to Yahoo Sports, “If there’s no disability, then there’s no legal basis for a conservatorship.”
Oher, whose upbringing is the inspiration for the best-selling book and blockbuster movie "The Blind Side," filed a petition in court last week alleging he had been misled into agreeing to a conservatorship and cheated out of millions. Attorneys for the Tuohys responded by describing Oher’s lawsuit as a “shakedown” to extract money from the family that took him in when he had no home and “loved him as a son.”
That nasty exchange served as a harsh reality check for anyone who wanted to believe that the real-life story of Oher and the Tuohys was as tidy and perfect as the Hollywood version. Oher, according to Tuohy family attorney Steve Farese Sr., has been estranged from Sean and Leigh Anne for about a decade and recently has become “more and more vocal and more and more threatening.”
At the center of the rift is a conservatorship that is unlike any that some legal experts have seen before. They questioned whether Oher would have agreed to sacrifice so many basic rights if he had an attorney to represent his own interests and advise him what other alternatives existed.
In 2004, the judge appointed the Tuohys “conservators of the person,” which typically provides the legal authority to make healthcare and housing decisions for incapacitated individuals in need. But in this case, the judge also granted power of attorney to the Tuohys and declared that Oher would “not be allowed to enter into any contracts” without the direct approval of the wealthy Memphis couple.
“That’s beyond conservatorship over a person,” Nashville-based conservatorship attorney John Crow told Yahoo Sports. “Conservatorship over the person shouldn’t really apply to a person’s finances. To me, I’d read that as a full conservatorship.”
That discrepancy is notable because a conservator in charge of someone’s money and property would typically be responsible for notifying the court of any change in assets or income and for filing annual accountings.
Corn says she has never seen a conservatorship of a person restrict an individual’s right to enter into a contract, which the Oher/Tuohy order does.
In a court filing earlier this week, Oher alleged that the Tuohys “flagrantly disregarded their statutory and fiduciary duties” by not filing a single accounting of his funds in the 19 years he has been under conservatorship. He is asking the court to compel the Tuohys to provide a full accounting of the income they’ve generated through contracts negotiated on his behalf or through the use of his name, image and likeness.
Of particular interest to Oher is the movie rights deal that the Tuohys negotiated more than 15 years ago with 20th Century Fox. Oher’s petition last week alleged that Sean, Leigh Anne and their two biological children received $225,000 each plus 2.5% of the film’s proceeds. Farese estimated last week that Oher and the four other members of the Tuohy family have each pocketed about $100,000.
“No money has been hidden,” Farese told Yahoo Sports. “Everything was distributed properly. There is a paper trail for everything.”
The money that Oher made during his eight seasons in the NFL does not appear to be an issue. Oher has not mentioned his NFL earnings in any of his legal filings and the Tuohy family's attorneys have claimed he hired and fired his own agents and negotiated his own contracts.
Among the reasons why the terms of Oher’s conservatorship are confusing to legal experts is that the Tuohys had an unusual purpose for pursuing it.
They didn’t petition for a conservatorship to protect someone who was disabled and in need of assistance. They sought one to help ensure that Oher had the option to play football at Ole Miss without risking potential NCAA eligibility issues.
By NCAA rules, the Tuohys would have been regarded as Ole Miss boosters because of their significant donations to their alma mater. Sean, a former all-SEC point guard, and Leigh Anne, a former Ole Miss cheerleader, have their family name on the university’s basketball practice facility in recognition of their “continuous support.”
That booster classification became a potential problem for the Tuohys when they opened their doors to Oher and the once-homeless teen blossomed into one of the nation’s top offensive line prospects while living under their roof. The NCAA forbids boosters from even contacting prospects, let alone providing food, clothes, shelter and the groundwork for a new life.
Oher could have rendered this issue moot had he spurned interest from Ole Miss and accepted a scholarship offer from another power-five program. Instead, the 6-foot-4, 344-pound teenager committed to Ole Miss over LSU and Tennessee just weeks after the court appointed the Tuohys his conservators, making them his legal guardians and overriding the booster issue in the eyes of NCAA investigators.
“Remember, this conservatorship was set up for the purpose I indicated earlier, so that If he chose to go to Ole Miss, there would not be an issue about Sean being a booster,” Randall Fishman, another Tuohy family attorney, said at last week’s news conference in Memphis. “That is the sole reason. After that got done, nobody really gave a damn.”
Statements like that clear up some confusion for conservatorship attorneys and raise other questions.
Crane is mystified that the Tuohys didn’t seek an adult adoption, which is legal in the state of Tennessee and would have satisfied the NCAA.
Corn wonders why Oher didn’t just temporarily transfer power of attorney to the Tuohys.
Crow argues that the Tuohys opened themselves up to potential legal issues not dissolving this “sham conservatorship” once Oher got to Ole Miss.
“I think the intent was clearly football, 100 percent football,” Crow said. “But the ramification of the conservatorship is that [Oher] can’t legally make a medical decision for himself or enter a contract. That’s a pretty big mess-up.”
In the wake of Oher’s latest filing, a judge could compel the Tuohys to provide financial records involving Oher to the court. Oher asked in the filing that those records be turned over within two weeks.