Buyers with an Intellectual Disability

[izabsmiling]

This is something I have thought of as I have an adult son who has brain damage .I am his carer.

He has asked if I could help him open up an account here to buy things.I have said that between State Trustees and myself we can help him buy things from here when needed (ie;using my account).

He is fortunate to have a carer but I know that many don't have that and there is always the possibility that he could get a friend to help him set up an account without either myself or State Trustees knowledge.

To sellers he just would be a faceless buyer and there could be all sorts of problems for the seller and himself.He may well be awarded the top prize for numptiness .He would not be meaning to be difficult ...he would however need a lot of things explained...though would most likely never tell anyone that himself.

The boards kind of open up my eyes up even more to those possibilities .

Has anyone else faced similar issues or thought about them?

[davewil1964]

VCAT has already determined that in this case, otherwise the Trustee would not be handling the money.

Besides there is a difference between mental illness/drunkenness and intellectual disability.

How old is your reference? The term drunkards would seem to date it.

[izabsmiling]

Sorry ,yes you did pretty much say that davewil, thank you 🙂

[carly2579]

hi OP  im physically  disabled on DSP    and   at aged 33 i still live at home i biuy and sell on ebay for a hobby   with my mums help she helps me send the packages etc  but  otherwise i can do it myself  i love the social interaction on these forums  and i have learnt alot of   selling skills from these guys   xxx

[carly2579]

i also have many other heal issues so i cannot  work so yes   this  gives me something to do and focus on

[lyndal1838]

With all due respect Carly, the OPs son has brain damage, which is somewhat different to physical disability.

You have the ability to actually sell on ebay and interact with your buyers even though you need help with sending the packages.

The OP was wondering about the advisability of allowing her son to have his own ebay account.

In view of the fact that the courts have ruled that he is in need of care and supervision in his everyday life I would think that an ebay account of his own is a very bad idea and could open his carers up to all sorts of problems.  I think the OP has come to the same conclusion now.

[*crikey*mate*]

Iza, I wasn't implying that a mentally ill person or someone with an intellectual disability had alcohol problems.

I outlined areas where contract law makes exceptions to the general rules. It comes under the section "Intention to be legally bound, subsection Capacity. Those are just the categories specifically addressed. (Minors, Mentally Ill and Drunkards). There are more allowances made for drunkards and the mentally ill than there are made for minors.

There are misconceptions that neither a child nor a person of dimished mental capability can enter into a legally binding contract, when it is clear that they are able to.

Every time a person buys a lolly from the corner store they enter into a legally binding contract regardless of their age. To prevent a person of diminished responsibility from entering into a contract means not even allowing them the ability to buy a can of coke.

BTW - I saw someone mention that this topic was started as a result from another thread - I personally don't see the problem with that and can understand how the intentions were genuine. I understand how something can be on a person's mind and then another post/situation can cause them to think about it and want to ask the question, such as you have.

As for your situation, it appears that it has been ruled that your son is not capable of being financially responsible for his own affairs, so I would ASSUME that you, as the appointed carer of his affairs would be ultimately held responsible.

I have shown where a person of diminished accountability for their actions can still be held liable for their actions - ie - if those items purchased can be proven to be of a necessary nature.

[viewmont1071]

http://www.nvp.org.au/

I have had some interaction with this local corporation and have found the young people generally that I have worked with benefit  by slowly increasing their decison making boundaries.

The fact is that somewhere along the way they will be in situations where guidance and help is not immediately available.

I find generally ( depending on impairment level) that those living in adult shared accomodation have become more accustomed to dealing with those situations.

I think that by empowering incrementally when trusted help and advice is still nearby and available is much better than shielding until the point comes where the shield departs forever which then leaves the person with a carer that may still be compassionate, responsible but not so protective.

I think an ebay account may help in that respect in that you can easily monitor interaction.

I know that we already have a long time poster on these boards (who loves video games) who buys a lot ( and sometimes has got into more trouble than Speed Gordon) and all his affairs are administered by the state trustees office.He is given an "allowance" for entertainment and works within those parameteres

My point is that  particular poster "trusts" the help he receives on these boards, has developed friendships amongst otyher postees and I am sure he has benefited more than being detrimentally affected.

[*crikey*mate*]

Please note that whilst my notes below focus primarily on minors, the general principles are also atypical for drunkards and the mentally diminished.

I am wondering (but don't know) if a person with diminished mental capabilities in the form of an intellectual disability would be given a "mental age" (ie they may be 25 chronologically, but are determined to operate at the level of a 15 year old IYKWIM). If that is the case, (as it is with criminal law), that mental age could be used as a guideline and in Contract Law be afforded the protection given to Minors rather than the Mentally Ill. It appears though that there are greater protections afforded to those with a mental illness.

CAPACITY

Capacity deals with who has the legal ability to enter into contracts.  The law takes the view that some people need to be protected.

• Mental Capacity but no legal capacity = Minors, aliens, bankrupts and convicted felons.

• Legal Capacity but no or limited mental capacity = intoxicated (drugs and alcohol) and mentally disabled.

Having full legal capacity implies a person can sue or be sued, remedies are available and they can enter into binding contracts. 

Generally where capacity is an issue, then both common law and statute is applicable and it is important to consider both.

-          Statutes includes:-              

• DEALING WITH MINORS:   Law Reform Act 1995 (Qld) – S17 states the age of majority is 18 years

• DEALING WITH MINORS, MENTALLY ILL AND DRUNKARDS

Sale of Goods Acts 1896 (Qld)

Ss5(1) – capacity to buy and sell is regulated by common law;

Ss5(2) – however where necessaries are sold and delivered the person must pay a reasonable price;

Ss5(3) – necessaries means goods suitable to the condition in life of the person to his or her actual requirements at the time of the sale and delivery.

Contracts with Minors

Generally contracts with minors are voidable at the option of the minor although an adult with whom the contract is made will usually be bound, however:-

Binding Contracts with Minors

NECESSARIES (Case 136)

• Necessaries are those things which an individual cannot reasonably exist in the society in which he or she lives.  A list of what constituted necessaries was comprehensively set out in Case 136.                  A minor will only be required to pay a reasonable price for same (ss5(2) of Sale of Goods Act (Qld))

• The test of whether something is a necessary is whether it is of a nature suitable to the minor’s condition (Case 138) but cannot be purely luxurious -  (Case 137);

• Will be difficult to prove that a later contract was for necessaries where the minor is already sufficiently supplied with those types of items (Case 139);

• The person claiming that a contract is binding because it relates to necessaries (the Plaintiff – usually the adult) will have the onus of proof (Case 140).

• Particular types of necessaries:-
  
  
  
  • Transport:     Yes will be considered necessary if used to get to work (Case 141 & 142);
  
  
  
  

No if just for convenience or leisure (Case 143 & 144).

• Services for:  Education, dental, medical and career instruction (Case 145 & 146)

• Necessaries for the minor’s family (Case 136).

• While an adult who supplies necessaries (ie. one that is not a trader as such) on a minor’s promise to repay may recover a reasonable price for same (Case 159), if they lend money to the minor so that s/he can purchase them personally, they are not protected (Case 160) as the minor could use the money for something other than necessaries.  Equity will intervene however and require a minor to pay back that part of the loan used for the purchase of necessaries if spent on necessaries (Case 161) – See remedies.

[*crikey*mate*]

I have just reread the OP and it seems to me that Iza is asking us to consider that the person we (as a seller) are dealing with has a some sort of mental deficiency, that could explain why they may come across as an unreasonable buyer.

It is something worth bringing to our attention, as I know I have had my fair share of "difficult" buyers, and I assume that other sellers have encountered similar situations - from change of mind purchases to endless excuses for delayed payment.

However, unless sellers are specifically made aware of the existence of the diminished responsibility, especially in this kind of medium where the seller has no personal contact and only communication through text, it appears that any contract entered into (ie a purchase made) is potentially binding.

Unfortunately, for your situation Iza, it appears that eBay nor individual sellers cannot be held responsible for who opens an account, outside the perameters of their terms and conditions (ie you need to be 18) - I'm not sure if they also disclude those with mental diminishment (do they? and if they do, are they opening themselves up for claims of discrimination? Can eBay (or anyone else specifically deny membership to say a person with BiPolar, Schitzophrenia, or a person who is intellectually disabled?)

It seems to me that the Trustees have appointed you as carer and combined with themselves are responsible for your charge's actions. It is neither the sellers nor eBay who are responsible. The principles and guidelines within Contract Law outline this.

So IF, your boy (or any other person) does open up an account, it just means that you (their carer or the person charged with their financial guidance/control) will need to be extra vigilant in order to protect both yourself and your boy.

If the seller is not aware of any problems, it is difficult for them to make allowances. If they do know, I am sure that many would make allowances, but with the exception of what I have pointed out above, they are not legally required to.

Any buyer or seller is entitled to expect that a legally binding contract be completed and generally speaking, the purpose of contract law is to ensure that the person is put into the position they would have been in had the contract been completed, so once the contract has been entered into, in order to void the contract, it needs to be proven that there are reasons why it was not legally binding.

I emphasize here that the seller needs to be made aware that they are entering into a contract with a person of diminsihed responsibility - the information must be supplied to them, they are not expected to know or make special considerations for "just in case".

[izabsmiling]

Hi Everyone,

Things are a little hectic at the moment . I will do my best and make a start with replying ..and come back later if needs be.

Hi Carli and judy, that is fantastic .:-)

Hi Viewmount, There ought to be more places like that.My son and my whole family have experienced what happens when my son lives independently, even in those places who are supposed to be supported.

I have been told by various workers and am well aware (as I have been involved) that he would be dead or in jail if it wasn't for our support.Many carers most likely feel as I do and would want as much independence as is individually possible for their child.

The man who's GF my son spoke to.I didn't know what had happened however at a time I had to live away from my family (for their sake..no other option at the time) with my son however one night a man knocked on the door and asked if my son was there..said they were friends of his .I sent him out...soon after he was ambushed by 6 adult men (who hid behind an archway) one punched him in the nose (broke it) and the others smashed bottles ready to do more harm.Naturally I ran out like a mad woman and thankfully they left..one yell keep away from my girlfriend and another quite bluntly propositioned me.

He has had his medication stolen outside chemists,been attacked and robbed and threatened in a shopping complex (I asked the police to keep film however my son was too afraid to take legal action).He has lived in supposedly supported accom and he and others been left not only without the support worker but had to leave the house as the worker was away.Eventually after I had done some work they all were told to go to a hotel....which they did and were refused to stay there as they were too young.So much has happened in the Community that he is afraid to go out a lot of the time...other than in the company of those he believes are friends.

As a parent and carer it is a little frustration to have well meaning (often changing) workers come in ,without reading the full history and encouraging behaviour that would set my son up to fail...there can be an attitude (and I am not the only carer who feels it , I am fully aware of that) that we as carers are restricting those we care for and offering to help get someone a licence ..when reports state shouldn't drive or at least not drive without the full OK of an OT .That is for there own good and the good of everyone else on the road.I recognise that and appreciate that.That sort of help is dangerous .The attitude that home based carers don't know or aren't doing all that is possible to help those they care for..in the same way a paid 'Team" of workers is doing can also be very ignorant,incorrect and upsetting .I don't think many realise that...I have had workers say in the end...I have read the full history and I understand NOW.

3 weeks ago he had an appointment with a pysch who had tears in her eyes (she tried to hide it) when I went to speak with her after my son had.

at the same time his salvo worker was offering to help him get his licence and enrol in a course that I know there is no way he could do.He would not even stay in the room...that is if I could get him there.I don't want him set up to fail...i have seen what that does.

Everyone has so many variables .My son's memory is not good,his concentration has a limit of about 5 mins,nothing interests him...at the moment it is tormenting the dog (never been an issue before though I have been asked repeatively since he was 3 if he did that).He was 3 when his Kindergarten teacher told me that there was something wrong...being a young Mum with not that much experience I didn't notice that how he was wasn't age appropriate.

Yes Crikey you are right in some of the things you are saying.It isn't legal.My son would not accept that or appreciate that.He is according to him 'fine'.He can't see or appreciate the importance of when he is medically ill and needs to go to a Dr .If he said yes..5 minutes later it would be no..

The best way might be if more people were aware of the possibility and tried to think that people are basically good.