Editor’s note: On Friday, Shelby County Probate Court Division 1 Judge Kathleen Gomes said she is ending the conservatorship agreement between Michael Oher and Sean and Leanne Tuohy. Oher’s lawsuit against the Tuohys will continue.
Memphis resident Sylvester Arthur Tucker, 75, was placed in the conservatorship of his daughter Elicce Tucker, by Judge Robert Benham in 2005.
A year earlier, the same justice handled the conservatorship case of former football player Michael Oher brought by Sean and Leanne Tuohy.
That’s where the similarities between the cases end.
Elicce Tucker, who is Black, faced entirely different demands from those required of the Tuohys, the wealthy white couple with connections in sports and marketing circles in Memphis. For instance, Benham’s orders in Sylvester Tucker’s case let his daughter know she would face extensive vetting, reporting and monitoring.
Yet in the 19 years since the judge’s ruling in Oher’s case, the Tuohys failed to file generally required regular reports on Oher’s financial and personal status. In the interim, Oher earned an estimated $30 million as a professional athlete, a change that experts said the Tuohys, as conservators, should have reported to the probate court. They did not.
On Friday, opposing attorneys in Oher’s lawsuit against the Tuohys will appear in probate court for a status conference in a case that touches on wealth, race, privilege, allegations of deception and Southeastern Conference football.
But the case’s implications reach far beyond the sports and media worlds. The conservatorship process exists in a system with strict standards. Yet, the lawsuit and other documents examined by MLK50: Justice Through Journalism reveal a lot of leeway in court practices; recordkeeping and oversight can vary widely. Observers say that looseness leaves ample opportunity for the exploitation of the vulnerable people the conservatorship system is supposed to protect.
Cindy Ettingoff, general counsel at Memphis Area Legal Services, said Oher, or anyone entering conservatorship, should have the help of a court-appointed guardian ad litem, a knowledgeable person free of ties to anyone else in the process, to get the full picture of what it all means.
“As a guardian ad litem, you meet the person, you talk to them, and you see what you think they understand, or if there’s some reason for them not to understand,” Ettingoff said.
Benham waived the requirement for a guardian ad litem in Oher’s case. In a recent interview with MLK50 from his California retirement home, he didn’t express an opinion on how Oher had come away from proceedings marked by an imbalance of power among the parties at the hearing. While the Tuohys were there with their lawyers, there was no counsel to represent Oher and Denise Oher, his mother.
“I don’t know if anybody took advantage of anybody else,” Benham said.
‘The petitioner was like a son’
The status conference will follow Tuohys’ recent court filings in response to Oher’s August lawsuit, which seeks to end the couple’s legal control over his life and earnings granted them by Shelby County Probate Court in 2004.
“They vehemently deny that they saw the Petitioner as a gullible young man whose athletic talent could be exploited for their own benefit,” one response in their filings says.
In another development, records of Oher’s years in Memphis public school recently arrived at court following his demands for documents that could answer persistent questions about his background and intelligence. Also approved: subpoenas sent to major Hollywood entities for records of the money earned by “The Blind Side,” the hit 2009 movie, which portrayed future college and NFL star Oher as the Tuohys’ powerful but learning-deficient son.
Oher has charged that the couple let him believe he was being adopted at age 18 when they had instead achieved control through the legal status of conservatorship, usually requiring a finding of disabilities of mind or body. He was not their son, although the film, media references and Leigh Anne Tuohy’s publicity material call him that.
“You threaten my son, you threaten me,” actor Sandra Bullock says to an adversary in her Oscar-winning portrayal of Leigh Anne Tuohy, who in real life is an interior decorator and motivational speaker.
The Tuohys’ response to Oher’s charges seeks to offer an explanation to that depiction. “The conservatorship was formed with the sole purpose of giving the Petitioner the opportunity to choose to go to the school of his choice including ‘Ole Miss,’” it reads.
“Respondents consider the Petitioner as part of their family, and over time, the Petitioner referred to Respondents as ‘mom’ and ‘dad,’ and the Respondent’s (sic) occasionally referred to the Petitioner as a son,” their response says. “In fact, they have always felt that the Petitioner was like a son and have used that on occasion but not in a legal sense.”
Years before Oher, now 37, filed his August action to be released from conservatorship, he along with a co-author depicted his view of the arrangement in the 2011 book “I Beat the Odds: From Homelessness, to The Blind Side, and Beyond”:
“They explained to me that it means pretty much the exact same thing as ‘adoptive parents,’ but that the laws were just written in a way that took my age into account,” Oher wrote.
However, Tennessee law makes it plain that an adult can be adopted.
Oher has asked for a jury trial, but no date had been set by Wednesday morning, according to filings in the case.
Judges with broad authority
Benham said he hadn’t met the Tuohys before Aug. 9, 2004, when they entered his court for the Oher conservatorship hearing.
However, Benham, 85, noted that he had attended Vanderbilt University for his undergraduate and law degrees. And like many, he had kept up with Southeastern Conference sports.
“I knew of Sean Tuohy,” Benham said. “I followed sports, and I knew he was a basketball player at the University of Mississippi.”
Sean Tuohy had achieved sports, business and social prominence after not only playing for Ole Miss, but also for helping the Rebels win their first Southeastern Conference men’s basketball championship. His delivery of Oher to the school added to Tuohy’s glittering status among wealthy backers of the school’s athletic program.
Sean Tuohy’s role as a host to Oher and as a sports booster at the University of Mississippi could have kept the school from giving Oher a scholarship. The National Collegiate Athletic Association would have seen the Tuohys’ support of Oher as an impermissible gift to an athlete being recruited.
“When it became clear that the Petitioner could not consider going to the University of Mississippi (‘Ole Miss’) as a result of living with the Respondents, the NCAA made it clear that the only way he could attend Ole Miss was if he was part of the Tuohy family in some fashion. Conservatorship was the tool chosen to accomplish this goal,” according to the Tuohys’ Sept. 14 filing.
The Tuohys succeeded in their bid to take on decision-making power over Oher’s life activities and finances through the legal mechanism of conservatorship, which the law reserves for protection of people with disabilities of body and mind.
“The statute in conservatorship and guardianship cases gives judges very, very broad authority, frankly, more authority than anybody ought to have,” Benham said.
Two cases, two sets of requirements
In a phone interview from her Memphis home, Elicce Tucker, 68, said she hadn’t minded looking after her father’s day-to-day life and finances when he lost the ability to take care of himself. Sylvester Tucker had returned home after a long career in manufacturing in Chicago.
“I was his baby,” Tucker said. “He spoiled me rotten. I took care of my daddy and my mama both before they died.”
The judge’s order nailed the chief requirements of her father’s conservatorship.
“[Sylvester Tucker] is a disabled person, has property requiring supervision, and should be placed in conservatorship,” Benham ordered in a court document.
In contrast, the order of conservatorship placing Oher in the Tuohys’ care said specifically that at 18, Oher had no physical or psychological disability.
In Sylvester Tucker’s case, the court relied on a medical report from physician F. Palmer Wilson and the sworn word of a paid guardian ad litem, a person appointed by the court but paid for by the conservator of someone subject to a court action.
In the Oher case, Benham waived the requirement for a guardian ad litem, as well as the requirement of annual financial reports.
The judge also did not impose on the Tuohys an order to file annual status reports about Oher’s general well-being when he was placed in conservatorship, although the record shows he did not specifically waive them. Court documents contain no filings of this kind from the couple, although under state law these reports cannot be waived.
“If you’re doing an annual status report, even if it’s not over money, and the person’s status has changed in a significant way, that should be listed,” said Susan Mee, a Nashville-based attorney who has practiced in conservatorship cases in Shelby and counties across the state.
Meanwhile, Elicce Tucker had to file schedules of her father’s income, expenses and holdings, which included an aged Oldsmobile worth $300. The car was described as inoperable, but she listed it anyway. And despite the probate court’s oversight, Tucker said, she never gained sufficient title to the 40 acres of Arkansas farmland she inherited from her father. She said she is encountering problems selling it now.
It’s difficult to determine how often disadvantaged people in conservatorship face disparate treatment, lawyers say, because Tennessee doesn’t tell counties how to keep their records, which sometimes appear in digital form and sometimes in file cabinets.
“I hope judges aren’t making decisions on appointing a conservator based on the finances involved in the case,” said Amy Willoughby Bryant, a Memphis native and director of the Davidson County Office of Conservatorship Management. “I can’t say that doesn’t happen.”
Bryant’s office keeps detailed accounts of conservatorships in electronic form, allowing staff to see, for instance, how many cases have had usual protections waived. Outside users of the database pay a $25 monthly fee but can call up conservatorship cases, documents and financial statements by parties’ or lawyers’ names. The files can be cross-referenced by case number, status, file date, petitioner, respondent and status.
Shelby County, where Oher’s case was brought, has no equivalent office. Its online system allows searching only by case numbers.
Bryant believes the dispute between Oher and the Tuohys is more significant than watching a Hollywood ending unravel.
“I think it’s a perfect case to show why we need better conservatorship oversight in Tennessee,” she said.
Thomas Goldsmith is a freelance writer based in Nashville.
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