DennisBeaverJuly 2, 2016 • By Dennis Beaver

If someone in your family has had a terrible accident or health issue causing them to make horrible financial decisions, then today’s story will be very helpful and begins in 2010.

It was late at night when 21-year-old Heather, who resides in Humboldt County, was driving home from a party with a friend, “Who we believe was highly intoxicated, and apparently grabbed the steering wheel, turning the car into a light pole,” her mother, Kelly, told You and the Law. (Not their real names.)

“Her injuries were life-threatening, including a fractured pelvis, broken back, neck, and an adult version of shaken-baby syndrome, leaving her in a coma for months and significant neurological impairment.

“During that time when we did not know if she would live, or come out of the coma, I was appointed her conservator and continued to handle her financial affairs until 2013 when she insisted that she could take care of herself and make her own decisions. I fought and fought, but in the end, gave up,” Kelly explained.

That decision haunts her to this day, as “Heather is her own worst enemy, impulsive and has trouble making sound decisions about money.”

On May 15th of 2015, two Kirby vacuum salesmen knocked on the apartment that Heather shares with her boyfriend, Roy, and demonstrated what “this amazing machine can do.”

Even though her only source of income is a monthly $986.10 Social Security Disability payment, she agreed to finance the purchase. She was right about one thing — the Kirby is “an amazing machine,” anyone who owns one will tell you as they last forever and have the best warranties in the industry.

We spoke with Heather and it was immediately obvious that she exhibits the typical characteristics of TBI (traumatic brain injury) speech, but how she appeared that day to the salesmen–and if they knew that their customer was severely impaired–is anyone’s guess. Also, as Kelly stated, “Roy would do anything for her, and also signed the contract,” would likely have removed any doubts the salesmen might have had about the sale being appropriate.

Within hours Heather realized that “I was impulsive and did something really stupid, so I phoned the Kirby distributor to come and pick up the vacuum cleaner,” she told us. However, the salesmen complied with California law, providing a required 3 Day Cooling Off notice which stated that “Cancellation must be in writing.” Her oral attempts failed.

One year later, after making a few payments, she finally came clean to her mom about what she had done. Kelly reads You and the Law in the Eureka Times-Standard and referred her to us. Heather phoned, and immediately the deep sadness of it all became clear.

But knowing the Kirby Company, there was no doubt the right thing would be done-even though they just manufacture the vacuum cleaner and had no responsibility in any way for the sale. Within minutes, I connected Halle Sminchak, Senior Director of Public Relations at the Kirby Company, in Cleveland, Ohio with Heather’s mom who tearfully described every parent’s worst nightmare.

Less than 48 hours later, Halle emailed, “The contract has been cancelled and all of Heather’s payments will be refunded. We are sending her a pre-paid shipping box so that the Kirby may be easily returned.”

“These are indeed very sad cases,” Hanford attorney Matt Amaro tells You and the Law. “Adults with cognitive impairments often believe they are fully competent to run their own financial lives, and strongly oppose conceding their financial independence, even to a well-meaning family member.

“Unfortunately, brain damage deprives them of insight into their own limitations, making life miserable for their family, as happened with your reader and her daughter.”

“A conservatorship or guardianship as it is known in some states, is a court proceeding in which a responsible person or organization is appointed to care for an adult found by the Court to be unable to make appropriate decisions concerning their personal and/or financial affairs.

“The conservatee is legally deemed to lack capacity to enter into contracts, and is only responsible for the value of things that are necessary for their, or their family’s support, such as food, clothing, medical care and lodging.

“Had Heather been protected by the conservatorship, this contract to buy the Kirby would have had no legal effect,” Amaro points out, adding some very pointed advice for mom:

“Kelly needs to retain an attorney and get back in court now, for her sake and that of her daughter. This time both were very lucky.”


Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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