Saturday evening’s television line-up included a story about former NFL tackle Michael Oher. His story was a 2009 feature film called The Blind Side that earned more than $300 million. The sum of the story is that Oher was born in Memphis in 1986, the son of a mom with substance issues and a dad who had a history of incarceration. He spent much of his youth in foster care but at age 17 he began to live with Sean and LeighAnne Touhy. Touhy was an affluent former college basketball star who at one point owned more than 100 fast food franchises.
By living with the Touhys, Michael Oher was enrolled in the best schools that Memphis TN had to offer. He excelled at high school football and ended up attending the University of Mississippi, the same college his foster parents attended. Here the story becomes somewhat murky. The Touhys suggest that a conservatorship was needed for Oher to attend Ole Miss. That seems odd because by the time Oher graduated high school he would have been an adult and entitled to all the rights of any other adult in Tennessee. He finished Ole Miss and played eight seasons in the NFL. Along the way he met Tiffany Roy by whom he has four children. Curiously, but not uncommonly in today’s world, the couple did not marry for more than a decade. But that will seem trifling when we get to the focus of the CNN documentary.
The focus of that documentary arises from a suit brought by Mr. Oher in August 2023 to terminate his conservatorship. That’s the one the Touhys secured circa 2004 when Michael reached 18. It has subsided for 18 years during which time there was an NFL career and four kids arising from a nearly 18 year relationship with Ms. Roy. The allegations in the lawsuit suggest that the Touhys essentially ran his financial life and did so to their benefit and his disadvantage. He wants an accounting for what occurred; meaning an explanation of what income came in and what was paid with it. The Touhys profess they have done nothing wrong.
The parties have agreed that the conservatorship should end but the presiding judge was reported by the Associated Press as wondering how it ever started. And therein lies a story…or at least a blog because it comes on the heals of the 13 year long conservatorship of Britney Spears.
Ironically, the trend in recent years is to narrow the world of guardianship and to make the least cumbersome it reasonably can be. In Pennsylvania, Act 61 was signed into law last year. It now mandates that a legal representative be appointed in all proceedings and that guardians have training. The trouble is that the system responds slowly to legal changes and both the Spears and Oher case are outstanding examples, albeit from other states.
In the case of Ms. Spears, it appears that as she reached adulthood she displayed some erratic behavior. Meanwhile, her talent was producing immense income and that career had been largely brought about by her parents. In the case of Mr. Oher, the CNN bio suggests that he was always a bright and talented child who really began to shine once afforded a stable household (The Touhys) and access to one of Memphis’ best school systems.
The core problems with the guardianship system are that while it professes a goal of getting the ward out of the system most of the people who are admitted to the system come in showing little prospect of escape. Dementia is a progressive disorder. The vast majority of childhood mental disabilities do not abate over time. So, while hope springs eternal, experience has shown that recovery or development of self-sufficiency is quite rare. And most of the institutions created to support people with these disabilities are conditioned to provide “maintenance” in contrast to “growth.”
The Pennsylvania guardianship law (termed conservatorship in other states) requires a petition to be brought when a disabled child becomes an adult (18) or when an adult can no longer reliably manage his/her person and/or finances. There is a hearing and often the person whose life is affected is not in the courtroom. Rather, the person seeking the guardianship testifies and comes with an expert report assessing the existing infirmity and prognosis. Blessedly, the new law seems to now mandate that someone independent is tasked with making certain that the petitioner and expert are correct.
Upon proof that protection is required a guardian is appointed. Ordinarily the same person is named to manage the personal needs (residence; medical care; etc) and the estate (financial matters) but the court has the authority to divide that role. Once appointed the guardians are required to file annual reports with the Orphans’ Court offering some information related to the physical conditional and residence of the ward and detailing the income/expenses and assets of the ward. The problem here is that these reports are rarely publicly available and rarely reviewed by anyone for accuracy or completeness. In many instances, the reports simply repeat the same words and phrases used to secure the guardianship in the first place. Unless someone comes into the courthouse with a petition raising a fuss, years can go by with no meaningful review of what has transpired in the lives of the ward or the guardian appointed.
We live in an age where baby boomers have accumulated some substantial wealth. And as we have noted in prior posts, adult children are not without temptations when they are appointed to administer millions of dollars for the care, comfort and maintenance of an elderly relative who no longer cares or apprehends whether her clothes come from Gucci or Marshalls.
The Oher case is just another example of how weak the protections of the guardianship system can be. It was not covered in the CNN program, but one has to wonder how Michael Oher allowed the Toughys to have control over his NFL contracts, his housing, his money, and to some extent his “family.” The biopic goes to some lengths to demonstrate that despite years of foster care and an otherwise hard childhood, Michael Oher was and is a very bright and personable human. Although one has to wonder the response of the court clerk who encounters a 6’4” man weighing 300 lbs who stops by to ask to see the file related to “his” guardianship. We are still left to ask: where is the other Oher? That would be the one who hired a lawyer shortly after his selection in the NFL draft to free himself from a guardianship that may have served others more than it protected him.
For a gander at what information guardians are required to provide: http://www.pacourts.us/forms/for-the-public/orphans-court-forms
The guardianship forms are coded with the letter “G”