The inspiring feel-good story of Michael Oher and the Touhy family has turned into another sad tabloid event. To make it worse, all that unpleasant drama could have been avoided.
Michael Oher was 18 and an adult when the Touhy’s proposed the idea of adopting him. Yes, an adult can be adopted. It is commonly done when there has been a parent-child relationship, often for many years, and everyone wants to make if official, formal, and legal with an adoption.
The Touhy’s certainly took Michael into their home and treated him like a family member.
When a minor is adopted, he becomes a child of the adoptive parents for all purposes. Like any other child, the parents have the authority to make all decisions for him.
When a child becomes 18, he is an adult and has independent authority to make his own legal and financial decisions. The parents may provide guidance and wise counsel, but they no longer have any legal authority to make decisions.
When an adult is adopted, he becomes child of the adoptive parents for all purposes, but he is still an adult. If an adult is competent, he has the independent authority to manage his own affairs.
As it turns out, Michael wasn’t actually adopted. He became the Touhy’s ward. There is a big difference. The Touhy’s were his guardians. As his guardians, they had the authority to manage his legal and financial affairs for him even as an adult. As their ward, Michael would not inherit from the Touhys like the Touhy’s biological children.
It appears that there may have been some failure to communicate or that Michael did not understand what he agreed to. In any human interaction, it is important to have what lawyers call a meeting of the minds – a mutual understanding and a common set of expectations. It helps to avoid unpleasant disagreements later.
I often recommend to adoptive parents that they should provide independent legal counsel for the birth parents, or at least for the mother. It is not required. It seems counterproductive. It also seems like an unnecessary additional expense.
Independent legal counsel for the birth mother is important to the integrity of the process. It also protects the adoptive parents from false claims that the mother did not understand what she was doing or was made promises that were not kept.
Independent legal counsel for the birth mother is also not really an additional expense. The lawyer for the mother will perform many of the tasks that I would otherwise perform as the lawyer for the adoptive parents.
The lawyer for the mother will also independently confirm that the mother knows and understands her parenting options, the legal impact of her decisions to place her child for adoption, and that she has the capacity to make a knowing and voluntary decision to place her child for adoption.
It is important to confirm that the mother understands that her parental rights will be permanently terminated, and the adoptive parents will become her child’s parents. After her revocation period, she cannot change her mind. This is not a co-parenting arrangement. If any promises were made about continuing contact, those promises are not conditions on the placement and adoptive parents failure keep those promises is not a legal ground to set the adoption aside.
Hiring independent legal counsel for Michael would have been a small expense for the Touhys. A lawyer for Michael would have explained the difference between adoption and guardianship. We could be more confident that Michael understood what he had agreed to and that he had the same expectations as the Touhys.
All that unpleasant drama could have been avoided for them and we would still have our inspiring feel-good story.
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