Ha ha ha! Welcome to the world of psychosocial disabilities where there are*no *certainties, Harish :-)
The problem is that we tend to divide people into groups, when we need to instead categorize situations. Think WHEN instead of WHO for EVERYONE universally. ALL PEOPLE IRRESPECTIVE OF ABILITY WILL BE INCAPACITATED IN THE FOLLOWING SCENARIOS - the length and nature (physical, mental, cognitive, memory of incapacitation is irrelevant (think slippery sliding scale instead of ON/OFF switches) : - When roaring drunk - When under the influence of hallucinogens / mind altering drugs - When in a delirium or coma - When in a vegetative state - When somnambulating - When unconscious / under anaesthesia / experiencing seizures - When in an isolating /stressful / depriving environment for a prolonged period (eg ICU syndrome) - When experiencing off the charts / chronic, unremitting pain. - When experiencing concussion or amnesia or shock - When there is fluctuation in body mineral, fluid, electrolyte levels / imbalance So yes, all people disabled or otherwise are susceptible to affected decision-making in such situations of incapacitation that can improve, worsen, fluctuate (some types of mental conditions), steadily deteriorate in cognition / memory (Alzheimer's) and insidiously, be cloaked in 'normalcy' (absence or petit mal seizures). How does that answer you question? It doesn't ! All it 'solves' is extending discriminatory assumptions of * some* groups of people to possibly discriminatory assumptions of *all*types of people !!! No easy answers, unfortunately.... it's a kind of mindboggling, Catch-22 situation ;-) On 12 July 2012 22:10, harish <[email protected]> wrote: > ** > Dear Rahul > > I am merely trying to understand this better, I have no intention to be > negative in any way. > > When trying to have the application of your point b, it seems it is the > state of mind at that point of time, has the bearing on thelegality to > contract or otherwise. however, if this is challenged then on what can one > fall back on? How to prove it in a future date? > > Accordingly, the state of mind can also be taken at the time of dispute. > The situation would have altered then. > > Hence, this can result in uncertainty and dilute the effictiveness of the > contract > > > Then, where do we stand? Even if the contract is otherwise legal. How > would the market take it? > Harish Kotian. > > > ----- Original Message ----- > *From:* rahul cherian <[email protected]> > *To:* Dlu South <[email protected]> > *Cc:* Vaishnavi Jayakumar <[email protected]> ; > harish<[email protected]>; Rajesh > Asudani <[email protected]> ; [email protected] ; Bhargavi > Davar <[email protected]> ; Ratnaboli Ray <[email protected]> ; Soumitra > Pathare <[email protected]> ; Poonam Nataraj <[email protected]> ; Amita > Dhanda <[email protected]> ; viakalathur sunder <[email protected]>; MH > Policy Committee Secretariat <[email protected]> ; Sruti > disABILITY CENTRE <[email protected]> ; Javed Abidi <[email protected]>; > [email protected] ; [email protected] ; MHA > digest<[email protected]>; nami > india <[email protected]> ; Val Resh <[email protected]> ; > Lavanya > Seshasayee <[email protected]> ; Punitha > Suresh<[email protected]>; Vandana > Gopikumar <[email protected]> ; > [email protected] ; Lakshmi > Ravikanth<[email protected]>; > BALM <[email protected]> ; Nirmal Thomas <[email protected]> ; > David > Nash <[email protected]> ; Vivek Varkey<[email protected]>; > Vijayakumar > E <[email protected]> ; [email protected] ; shetty > chaitali <[email protected]> ; > chidambaranathan<[email protected]>; S > P Simmachandran <[email protected]> ; Rajiv Rajan<[email protected]>; > [email protected] ; Nazir <[email protected]> ; Deepak > Thanumalaya meenakshi nathan <[email protected]> ; Vijayakumar > Advocate <[email protected]> ; Porkodi <[email protected]>; > Ashok > Kumar <[email protected]> ; sudha <[email protected]> ; Amba > Salelkar <[email protected]> ; [email protected] ; The > Spastics Society of Tamilnadu > SPASTN<[email protected]>; Jayshree > Raveendran <[email protected]> ; Janaki > Pillai<[email protected]> > *Sent:* Thursday, July 12, 2012 4:26 PM > *Subject:* Re: A brief report on the discussion held yesterday on the > banking rights of Persons with Intellectual disabilities and persons with > mental illnesses > > Dear Smitha, > > > > Thank you for this. A couple of clarifications will be helpful. Under > contract law, there must be a meeting of minds between the parties to the > contract on the terms of the contract for it to be valid. Under Section 11 > of the Contract Act "*Every person is competent to contract who is of the > age of majority according to the law to which he is subject, and who is > sound mind and is not disqualified from contracting by any law to which he > is subject*.” From this it appears that by default everybody who is > above 18 can contract. Section 12 of the Contract Act defines what is > “sound mind” for the purposes of contracting. As per Section 12 “*A > person is said to be of sound mind for the propose of making a contract, > if, at the time when he makes it, he is capable of understanding it and of > forming a rational judgement as to its effect upon his interest. A person > who is usually of unsound mind, but occasionally of sound mind, may make a > contract when he is of sound mind. A person who is usually of sound mind, > but occasionally of unsound mind, may not make a contract when he is of > unsound mind.* > > ** > > *Illustrations (as given in the Contract Act)* > > *(a) A patient in a lunatic asylum, who is, at intervals, of sound > mind, may contract during those intervals.* > > ** > > *(b) A sane man, who is delirious from fever, or who is so drunk that > he cannot understand the terms of a contract, or form a rational judgment > as to its effect on his interests, cannot contract whilst such delirium or > drunkenness lasts*." > > > From the above it is clear that the question of whether a person is of > sound mind or not is a question of fact. These sections have somehow gotten > twisted into the position it is in today. We are yet to commence research > in this area as to how this has happened. > > Our preliminary study of the RBI regulations indicate that by default > anybody with any of the disabilities mentioned in the NT Act would require > a guardian to undertake banking. This seems to be contrary to the Contract > Act as well as the CRPD, the Constitution etc. > > > Thanks, > > Rahul > > > > > On 12 July 2012 15:40, Dlu South <[email protected]> wrote: > >> Dear Friends, >> >> Greetings from Vidya Sagar! >> >> Pl find below a brief report on the discussion held yesterday (11th July >> 2012) on the banking rights of Persons with intellectual disabilities and >> Persons living with mental illnesses. >> >> Kindly share your inputs on the same. >> >> Do let us know if we could have a Stake holders meet on the same by 28th >> Saturday or 29th Sunday of this month. Pl get back on your preferred >> day/date by this week end. >> >> Vaishnavi, could you share the Know Your Customer policy of Banks with >> the group? >> >> Thanks & Regards >> >> Smitha.S.S >> >> *REPORT*: >> >> Vaishnavi Jayakumar, Rahul Cheriyan, Amba Salelkar, Dipti Bhatia, >> Dhanasekar.A, Shanthi.R and Smitha.S.S were part of the discussion. >> >> Smitha briefed about the issues faced by a group of young adults with >> Cerebral palsy and Mental retardation in opening a bank account on their >> own for availing loans for a self employment venture and the denial of >> banking rights for Persons living with Mental Illnesses. >> >> Amba described the provisions from the Master Circular of RBI Guidelines, >> specific to banking facilities for the elderly, sick, incapacitated persons >> and persons with Visual Impairment, Access to physical disabilities, >> banking for persons with intellectual disabilities through guardianship >> from Local Level Committees as referred by the National Trust Act and for >> persons with mental health issues through guardianship processed under the >> District Magistrate. >> >> Rahul elaborated the process of contract between an individual and a >> bank; that it is a consensus between the two parties and there would not be >> a consensus in case of a person with an unsound mind; Legal capacity is >> assumed to be, for all citizens at and above the age of 18, unless it is >> proved otherwise; RBI Guidelines reflect default Legal Capacity for persons >> with Visual Impairment and physical disabilities; whereas it requires >> guardianship for persons with National Trust Disabilities and Persons with >> Mental Illness. >> >> Further discussions were held on the provisions of the National Trust >> Act, which gives room for the execution of legal capacity, without >> guardianship, for persons with 4 National Trust disabilities. The >> eligibility of a person living with mental illness, who has an >> understanding about the contract, to sign a contract was made clear from >> the provisions of the contract act, which only requires an understanding of >> the contract at the time of signing the contract.These provisions had been >> perverted in the RBI Guidelines, denying legal capacity for persons with >> intellectual disabilities and mental illnesses. >> >> It was therefore decided to study the Know your Customer Policy of the >> Banks and that certain regulations are formulated for this purpose. >> >> The group emerged with the following ideas to obtain banking facilities >> for persons with intellectual disabilities / mental illness at ease: >> >> 1. 1. Banks to have a small questionnaire that is a simple test of >> understanding of the client with respect to the contract being made. >> >> 2. 2. If dissatisfied, the client could be attended by an in-house >> panel equipped with professionals on mental health and intellectual >> disabilities. >> >> 3. 3. Branch manager could refer the client for an assessment to >> Local Level Committees or Mental health Networks, the payment for services >> being taken care by the banks. >> >> 4. 4. Any client with Mental Illness / Intellectual disabilities, >> who have a proof of other transactions/contracts currently on use, need not >> undergo the 2nd and 3rd processes. >> >> The group felt the need to organize a Stake holders meet to evolve new >> ideas, formulations to enable easy access of banking facilities for persons >> with intellectual disabilities and mental illnesses. The criterion of the >> meet shall be as follows: >> >> · Disabled people to get easy access to banking >> >> · No discretion to be allowed on the part of the bank/bank >> authorities >> >> · To introduce new recommendations to RBI guidelines >> >> The discussion came to a close with an agreement to hold the stake >> holders meet at the earliest. >> >> >> >> >> >> >> >> >> >> > > > -- > Rahul Cherian > Inclusive Planet Centre for Disability Law and Policy > +91 98403 57991 > ++++++++++++++++++++++++++++++++++++++++++++++++++++++ > For more information about our work visit www.inclusiveplanet.org.in > > -- You received this message because you are subscribed to the Google Groups "Mental Health Advocacy (News 'N Views) India" group. 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