Retired NFL star Michael Oher, whose story was made famous in the blockbuster movie "The Blind Side," filed a petition in a Shelby County, Tennessee, court last week asking to end a conservatorship that Sean and Leigh Anne Tuohy filed in 2004.
Oher alleges in the petition that the Tuohys, who took him into their home when he was in high school, repeatedly stated that they "loved him and that they intended to legally adopt him." Believing these statements and trusting the Tuohys, he thought the legal paperwork they presented to him shortly after he moved in was for adoption. In reality, it was a conservatorship petition. Oher was 18 at the time and had no diagnosed physical or psychological disabilities. The recent petition alleges that the Tuohys sought the conservatorship to "gain financial advantages for themselves" and their foundation.
Oher's story raises many questions about conservatorships and guardianships. The laws on these matters vary from state to state, but the following are some basics:
What Is a Guardianship/Conservatorship?
Typically, a person seeks both a guardianship and conservatorship for a loved one at the same time. However, a person can obtain a guardianship without a conservatorship and vice versa depending on the individual's care needs and capacity.
A guardianship is ordered if a court determines that a person is incapable of making personal care decisions for themselves and it is the least restrictive means to help that individual (e.g., they do not have a healthcare directive).
A conservatorship, on the other hand, is related to finances. A court orders a conservatorship when the individual is unable to make financial decisions and there is not another less-restrictive alternative, such as a power of attorney, living trust, technological assistance, etc. Usually, guardianships and conservatorships are reserved for people who are struggling with dementia, in a coma, or diagnosed with other serious medical or psychological impairments.
Once one becomes a ward, or "protected person," under guardianship or conservatorship, they lose a number of basic legal rights. A protected person under conservatorship loses the legal right to determine how to spend their money, enter into contracts, buy a home, make investments, pay bills, or draft a will. To safeguard the protected person and limit the potential for abuse, guardians must file at least annual well-being reports. Similarly, conservatorships are subject to court supervision, and the conservator must seek court approval for certain transactions.
How Does Someone Become a Guardian or Conservator in Minnesota?
To establish a guardianship or conservatorship in Minnesota, a person must file a petition with the probate court in the county in which the proposed protected person resides. The petitioner must request that a specific person be appointed as a guardian and/or conservator, whether that be themselves, another family member, an attorney, or a professional agency. The petitioner must also request the powers they would like the court to grant to the guardian and/or conservator, whether those be comprehensive or more limited.
A conservatorship petition must describe the "present general mental condition" supporting an allegation that the proposed protected person is "unable to manage property and business affairs because of an impairment in the ability to receive and evaluate information or make decisions, even with the use of appropriate technological assistance." The petition should also explain whether the proposed ward "has demonstrated behavioral deficits evidencing an inability to manage [their] estate," and which less restrictive measures, if any, have been attempted and considered but found to be insufficient to meet the person's needs.
The law is similar in Tennessee, which, given the allegations in Oher's petition, raises questions about why the judge granted the conservatorship.
Can You Terminate a Conservatorship?
Media reports say the Tuohys have agreed to an end to Oher's conservatorship. But typically, once someone is under conservatorship, it is very difficult to regain lost rights.
In Minnesota, a conservatorship can be terminated if a court finds that the person no longer needs the assistance or protection of a conservator.
How Can You Avoid a Guardianship or Conservatorship?
As noted above, a guardianship or conservatorship is designed to be a last resort, ordered only if it's the least restrictive option—meaning there are no other alternatives. Conservatorships are time consuming and can be emotionally draining for family members and the protected person. In addition, court proceedings in certain states, including Minnesota, are public records, exposing a protected person who values independence or privacy to potential embarrassment.
To avoid a guardianship and/or conservatorship, it is best for families to engage in proactive estate planning. That includes executing estate planning documents, particularly powers of attorney and healthcare directives, that clearly express who they would like to take care of them if they are unable to make decisions for themselves.
We Can Help
Maslon attorneys can assist your family with your guardianship and conservatorship needs. Further, to avoid guardianships and conservatorships, Maslon recommends talking with one of our trust and estate attorneys to help prepare estate planning documents that address the risk of future incapacity.