In recent years, the national media have been awash in stories of unscrupulous guardians and conservators. Most prominently, headlines screamed about Britney Spears’ father — enemy number one of the #FreeBritney movement — who was accused of profiteering off his daughter.
Last week, NFL player Michael Oher became the focus of the nation’s newest high-profile conservatorship case. Oher, the subject of the blockbuster movie “The Blind Side,” filed a
a court petition alleging that he had been duped into “agreeing” to a conservatorship, and asking for it to be terminated and his conservators sanctioned.
Unlike Spears, he did not allege that his conservators absconded with his earnings or prevented him from making personal decisions. And within days of the lawsuit being filed, the conservators announced they were “glad” to terminate the arrangement (although that actually can be done only by the court that appointed them to make decisions for Oher).
Oher’s story is unfortunate, but it could have a silver lining. With past high-profile stories, the focus on “bad” people (Spears’ father, a Nevada guardian turned abuser, a scam artist obtaining guardianship over elderly marks) masked a much bigger problem: probate courts run amok.
Oher’s case, in contrast, lays the core problem bare: courts unnecessarily strip people of their rights and then fail to monitor the risky arrangements they create.
Oher was put under conservatorship in Tennessee. Tennessee law prohibits a judge from imposing a conservatorship unless the judge finds clear and convincing evidence that the person is disabled and needs that assistance. Yet a Tennessee judge imposed a conservatorship on Oher despite explicitly finding that he did not have any disability. Likewise, the judge never found that conservatorship was needed, and there is no evidence the judge considered whether Oher’s alleged “needs” could be met in a less restrictive way.
The sheer wrongness of the court’s order is shocking. But it is an open secret that courts appoint conservators (called guardians in some states) without fully considering the alternatives, or evaluating the person’s needs and abilities. Likewise, courts routinely grant conservators broad powers when more limited ones would be sufficient to meet the needs of the situation.
The Oher case also reveals another core problem: inadequate representation for those alleged to need a conservator. Although conservatorship can strip people of the right to make even the most basic, intimate decisions about their own lives, many states — including Tennessee — do not ensure that they have an attorney to represent their wishes.
Worse yet, Oher alleges that a single attorney purported to represent both him and those petitioning for conservatorship over him. That’s akin to an attorney representing the plaintiff and defendant in the same lawsuit.
In addition, the Oher saga reflects courts’ failure to supervise their appointees. Oher alleged that in the 19 years during which he had been under conservatorship, his conservators did not file a single accounting of his funds even though Tennessee law requires this annually. That a court would allow no accounting to be filed for 19 years, with potentially millions of dollars at stake, is appalling if true. Moreover, as Oher’s apparent continued confusion about his conservatorship suggests, courts often fail to adequately explain to people subject to conservatorship what that arrangement means and what their rights are under it.
In short, the Oher case shows that we must fix court systems, not merely punish bad actors.
Fixing court systems will require ensuring that all judges who appoint conservators have the training needed to understand when an appointment is legally appropriate, and how to determine if that standard is met in a particular case. It will also require ensuring that courts have the systems they need to track cases and monitor those they appoint.
Congress could help. Conservatorship is governed by state law, but Congress could jumpstart court improvement by appropriating funds for state court systems to adopt needed reforms.
For example, they could make funding for court improvement available to states that adopt the Uniform Act designed to prevent these types of court failures. Likewise, Congress could — much as state court leaders have urged — appropriate funds specifically for judicial training or case management. And recognizing that the federal Constitution is violated when states strip people of constitutional rights without due process, Congress could create new avenues of redress for people whose rights are unlawfully removed.
Voters can help too. Many of the judges who appoint conservators are elected. Voters and the media should ask judicial candidates running for probate court positions key questions.
How much time will they spend considering a petition for conservatorship? Do they believe the court should obtain an independent evaluation of a person’s needs and abilities before imposing a conservatorship? Will they remove people’s rights without hearing from them first? Many do.
That could change if voters become savvy to the problems with conservatorship and select judges who will only impose it when there are no other feasible options for meeting individuals’ needs.
“The Blind Side” inspired many with its powerful story of hope and redemption. Oher’s conservatorship saga could have greater power. By exposing profound court failures, it could inspire the changes to the court system that are needed to ensure that Americans won’t have to worry that, like Oher, they may be swept up in an unnecessary conservatorship.
Nina A. Kohn is the David M. Levy Professor of Law at Syracuse University College of Law, a visiting professor at Cornell Law School and a distinguished scholar in elder law at Yale Law School’s Solomon Center for Health Law & Policy. Follow her on Twitter: @ninakohn.