Beyond The Will, Client Compass

This week, we heard about yet another conservatorship that may have been improper or involved misconduct: that of Michael Oher, the former NFL player. I take no position on the truth of the matter, that is what the discovery process and trial are for, but today I wanted to write about why we seem to hear so often about conservatorships gone wrong.

There has been what feels like a lot of news in the past few years about conservatorships that have been used to allegedly exploit people and deny them money that is rightfully theirs. Remember Free Britney? Amanda Bynes? And now, Michael Oher, the subject of the movie The Blind Side, Super Bowl champion, and eight-year NFL veteran.

As is being widely reported, including by ESPN and NPR, the Tuohy family allegedly became conservators of Oher instead of adopting him. Thereafter, the Tuohy family allegedly profited significantly from Oher, including from royalties from The Blind Side. Oher was over eighteen at the time of the petition and therefore was involved in petitioning the court for the conservatorship, which he alleges the Tuohys told him was akin to being adopted. What does appear to be true is that Oher was not adopted and is indeed under a conservatorship, despite having no known intellectual disability or obstacle to managing his affairs.

The Oher case is proceeding in Tennessee but Burns and Levinson is primarily a Massachusetts firm. So, this post will address how a case like this might play out in Massachusetts: specifically, the potential grounds to avoid a conservatorship being put into place or to end a conservatorship that is no longer needed.

Generally, a conservatorship puts into place a fiduciary who can manage a protected person’s finances. A conservator can be appointed for a minor if the minor has significant financial assets in need of administration or needs protection from financial exploitation. If a conservator is appointed for a minor for no reason other than age, the conservatorship ends automatically when the minor is emancipated. See G. L. c. 190B, § 5-429(f). A conservator can also be appointed for an adult who is under a legal disability. For this type of conservatorship, the court is required to “make appropriate findings of fact” in support of the conservatorship decree. G. L. c. 190B, § 5-407.

In Massachusetts, a conservator cannot be appointed unless the court finds that “the person’s needs cannot be met by less restrictive means.” G. L. c. 190B, § 5-407(b)(8). This may be one reason the conservatorships in the news tend to have gone so wrong: the protected person is under too many restrictions.

In the case of Britney Spears, there was controversy over whether she would be allowed to make her own reproductive decisions. In Massachusetts, a conservator would not have authority over healthcare decisions: such authority belongs to the protected person, their healthcare proxy, if one has been invoked, or their guardian, if one has been appointed. However, as with a conservatorship, the presumption in Massachusetts is that a guardianship will be limited in scope. The person under guardianship should retain the ability to make as many medical decisions as are within their capabilities or even to make medical decisions in cooperation with the guardian rather than the guardian simply dictating outcomes.

Another reason that conservatorships in the news may go wrong is that the people under conservatorship do not have a disability that prevents them from managing their assets.

At least in the case of Oher, there is no evidence that he has any disability preventing him from managing his finances: had his case proceeded in Massachusetts, the court may not have appointed a conservator for him, even if he was the petitioner. An alert judge would have pointed out that there were many options to manage his money short of a conservatorship, including establishing a trust into which the royalties from the book and movie—and Oher’s NFL salary—could have been paid. Such a trust could have been set up to disburse money to Oher as needed or to pay his bills directly.

So, why do conservatorships seem to go wrong so often? I speculate that there are a few reasons that we seem to hear about the conservatorships that go off the rails: first, the conservatorships that are going right are not newsworthy. The people who genuinely need conservatorship and whose conservators are behaving as they should—the vast majority—are boring. There are likely hundreds of thousands of conservatorships that are operating as they should and offer genuine and important protections in the United States, none of which has ever been reported on in gossip magazines or national newspapers. Second, and relatedly, people may not publicize that a conservatorship exists. People under a conservatorship may feel stigmatized or may simply not want to let others know their business, and so they might choose to keep their conservatorship quiet.

Whatever the reason bad conservatorships make the news, there are steps to try to prevent a conservatorship from going bad. In Massachusetts, there are tools that the courts use to try to ensure that a conservator is performing their duties adequately. The first of these is the inventory requirement. A conservator is required to inform the court of the assets under management within ninety days of being appointed. G. L. c. 190B, § 5-417. The second of these is the annual accounting requirement. The conservator is required to file an accounting of all monies received and expended each year. G. L. c. 190B, § 5-418. Interested parties must receive notice and may object to the accounting. Lastly, some powers of a conservator require court approval to exercise. Almost all powers over real estate require court authorization before the conservator exercises those powers, including selling property, erecting new buildings, and leasing property. See G. L. c. 190B, § 5-423.

A conservator also has a fiduciary duty to the protected person to act on their behalf and in their best interests. Conservators must take seriously this fiduciary duty: any breach is grounds for removal as conservator and/or a potential lawsuit. Anyone appointed as a conservator should remember that they can no longer act as they would with their own money but must administer the protected person’s assets under a higher standard.

There are two takeaways here: first, a conservatorship is not always the answer and, second, a conservator must perform their duties adequately and according to the law. If someone you know is under a conservatorship that you have concerns about, talk to them about it and seek information. If someone is trying to put you under a conservatorship, you can fight the conservatorship if you think it unnecessary. Either way, talk to a lawyer, including—if you are in Massachusetts or Rhode Island—those here at Burns and Levinson to make sure that your conservatorship, however you may be involved, does not become a cautionary tale.