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Mentally incompetent: Can we get the contract voided due to his mental capacity?

This is a discussion on Mentally incompetent: Can we get the contract voided due to his mental capacity? within the Business Contracts & Partnerships forum, part of the BUSINESS & FINANCE LAW category; My son is 21 and is mentally incompetent. He had a birth defect that affected his brain. He was special ...

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Old Jan 21st, 2008, 08:36 PM   #1
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Default Mentally incompetent: Can we get the contract voided due to his mental capacity?

My son is 21 and is mentally incompetent. He had a birth defect that affected his brain. He was special ed in school, works at the Goodwill for handicapped persons and canot read past third grade level.
He cannot do basic math and his Mother has to handle his finances, paying his bills and writing his checks for him. He was receiving SSi benefits for his disability until he got a job with Goodwill. A girl talked him into signing as a co-signer for a 2006 car with a Credit Union company for $16,000 spread out over 66 months. My question is can we get this contract voided due to his mental capacity and get him off the contract as a co-signer? We live in Ohio.
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Old Jan 22nd, 2008, 11:33 PM   #2
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Default re: Mentally incompetent: Can we get the contract voided due to his mental capacity?

Very interested to see how this works out. My 25-year old mentally handicapped son in similar situation and was recently tricked by a girl into co-signing a $5,000 signature loan at a local Credit Union. The girl has now left town after making just 1 payment and now we are left holding the bag. My son is able to hold a job in a call center, but cannot afford the adverse credit reporting nor can he afford to repay the loan under current terms.

I wish you well.
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Old Jan 23rd, 2008, 11:02 PM   #3
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Default re: Mentally incompetent: Can we get the contract voided due to his mental capacity?

[mentally handicapped son in similar situation and was recently tricked by a girl into co-signing a $5,000 signature loan at a local Credit Union. ]

If you can show that the document can be voided---

Call the CU to discuss.

World Law's lawyers could also probably intervene and help resolve this if need be. You may email them on the home page.
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Old Jan 24th, 2008, 11:09 PM   #4
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Default re: Mentally incompetent: Can we get the contract voided due to his mental capacity?

Thank you for the advice. Have been talking actively with the CU over past few days but their primary concern is collecting the delinquent payments and since they cannot find the girl who was primary on the loan, they are focussed on my son for payment.

As footnote, when the loan was made, my son was told by CU loan officer that he didn't need to read the terms on the papers he was signing since he was only the co-signer and not primary. Interestingly he was not given any documents by the CU (not even those that he signed). I have subsequently obtained from CU those documents and am very concerned that the girl who conned my son has loan docs with my son's signature, SSN, and address info. Seems to me that at very least the SSN should have been redacted on copy given to this girl.

Will try for resolution with CU (planning on paying them a visit tomorrow).
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Old Jan 25th, 2008, 12:13 AM   #5
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Default re: Mentally incompetent: Can we get the contract voided due to his mental capacity?

More background in event that others wish to provide advice regarding 25-year old who was convinced by girl to cosign a $5,000 signature loan.

Loan document has my son listed as "co-borrower" although he did not receive any of the loan procedes. Not sure if that is any different that being considered a cosigner, but "cosigner" is the term that the collections dept has been using in my conversations with CU. At any rate, my son did not receive the "Notice to Cosigner" which appears to be required under CFR 444.4. I'm hoping that this oversight combined with fact that they simply pushed papers in front of him to sign and his mental handicap will carry some weight in our appeal to have him removed from the loan obligation.

We reside in Virginia.
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Old Jan 26th, 2008, 11:11 AM   #6
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Default re: Mentally incompetent: Can we get the contract voided due to his mental capacity?

They may back down if you threaten to sue or file a complaint with the state attorney general.

Not clear to me here how handicapped your son really is?
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Old Sep 2nd, 2010, 01:02 PM   #7
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Default re: Mentally incompetent: Can we get the contract voided due to his mental capacity?

this is calvins mother he is my son who is a property owner on fowlerville rd in greenville s.c. the property owners above him are threatning to close the only access to his property and others on the lower end of this private drive can they close this as my son needs medical help of emergency sevices due to eptileptic seizures and elderly citizens that are also on this road they only own land in between land owners here. can you please direct me to where i need to talk to someone about this situation.
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Old Sep 2nd, 2010, 01:07 PM   #8
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Default re: Mentally incompetent: Can we get the contract voided due to his mental capacity?

this is calvins mother he is my son who is a property owner on fowlerville rd in greenville s.c. the property owners above him are threatning to close the only access to his property and others on the lower end of this private drive can they close this as my son needs medical help of emergency sevices due to eptileptic seizures and elderly citizens that are also on this road they only own land in between land owners here. can you please direct me to where i need to talk to someone about this situation. calvin has the iq of 52
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Old Jan 4th, 2012, 10:36 AM   #9
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Default Re: Mentally incompetent: Can we get the contract voided due to his mental capacity?

In many States, it is a crime to take advantage of mentally handicapped persons and any contracts signed or co-signed by them may be legally voided. What you all need to do is contact your local law enforcement authorities and the District Attorney and give them the names of those who criminally defrauded your sons and loan institutions. Then file suit against the girls who took illegal advantage.
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Old Aug 12th, 2012, 12:32 PM   #10
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Smile Re: Mentally incompetent: Can we get the contract voided due to his mental capacity?

First, I would like to make the distinction between being handicap and mentally incompetent. A handicapped person may be liable for a contract they entered into without duress or undue influence. For instance, my mother is considered handicap but not mentally incompetent therefore she would be responsible or liable for a contract she legally accepted. Conversely, contracts entered into by mentally incompetent persons may be void, voidable or valid depending on the circumstances. Here’s a brief illustration of each:

Void – If a court has determined a person mentally incompetent and has appointed a guardian to represent the person, ANY contract entered into by the mentally incompetent person is void meaning no contract exists.

Voidable – A contract is voidable when a court has not previously determined a person to be mentally incompetent but in fact the person was incompetent when entering into a contact – the contract MAY be voidable. The contract can be voided if the person lacked the mental capacity to comprehend the nature of the contract. If sufficiently proven the contract can be disaffirmed. Any consideration the mentally incompetent person received, legal value, would have to be returned and they may have to pay for the value of any necessaries received.

Valid – A contract most likely will be valid if the mentally incompetent person was not been previously determined incompetent by a court and had capacity at the time the contract was formed. If the incompetent person understands the nature, purpose and consequences at the time of entering into the contract, that person will be bound to it. This sometimes occurs with elderly people who have moments of clarity and lucidness.

If these criteria are not satisfied perhaps you should consider the defense undue influence. The girl exercised undue influence over your son - it may be worth discussing with an attorney.

Disclaimer: I am not an attorney therefore all advice is just that, advice. You should discuss any legal options and remedies with an attorney.
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