Conservatorship in Hollywood and beyond
Conservatorship (the American version of guardianship and administration) hit the headlines in recent years when Britney Spears sought to challenge her father’s control of her affairs.
Many would remember the heart-warming story of Michael Oher told in the Oscar-winning film The Blind Side from 2009. Michael was an impoverished student taken in by a benevolent wealthy family who encouraged him to a successful College football and later NFL career.
Now 37 years of age, Michael now alleges that his ‘adoptive’ parents, the Tuohys, tricked him into conservatorship when he turned 18 in order to profit from him.
In his application, Michael asks the Court to terminate the conservatorship and order an accounting of the money earned by the family using his name and likeness, together with compensation.
Conservators owe a fiduciary duty to the person entrusted to their care to manage their assets only for that person’s benefit. There are strong parallels between the duties of a conservator and that of an administrator or attorney in Victoria.
Could this happen here?
In Victoria, pursuant to the Guardianship and Administration Act 2019, the Tuohys may have been appointed as Michael’s administrators by the Guardianship List of the Victorian Civil and Administrative Tribunal. To do so, the Tribunal would have needed to be satisfied that Michael was a person under a legal disability by reason of which he was unable to make decisions about his legal and financial affairs.
Administrators are subject to stringent oversight and auditing by the Tribunal. They must not enter into any transaction if there might be a conflict of interest between the represented person (in this case, Michael) and the interest of the administrator (or their relative, business associate or close friend). Breach of that duty and loss to Michael could have given rise to a right to compensation. The Tribunal can authorise conflict transactions if there is a reason for doing so.
Alternatively Michael may have appointed the Tuohys as his attorneys for financial matters under an Enduring Power of Attorney.
Similar to the duties of administrators, as attorneys, the Tuohys would be prevented from both profiting from their role and acting in any conflict transaction (without permission from the Tribunal or the Power of Attorney itself) and any breaches of those duties could give Michael a right to compensation. Attorneys are required to keep accounts, and a failure to maintain accurate accounts could also lead to compensation. Breaches of duties by attorneys can also be punishable by imprisonment in some circumstances.
For more information about guardianship and administration or powers of attorney, please contact our office on (03) 9646 4477.
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