You may have recently read that the Social Security Administration (SSA) is hammering out new regulations to comply with President Obama’s 2013 Executive Order requiring all Federal agencies to ‘share’ more information with the National Instant Criminal Background Check System (NICS). The SSA is apparently proposing to deem Social Security recipients who have an appointed Representative Payee (Rep Payee) “mental defectives,” and strip them of their Second Amendment rights by adding them to NICS.
This isn’t a new idea – the Veterans Administration (VA) has been doing it for years. According to an April 2015 press release from IA Senator Chuck Grassley, as of June 1, 2012, 99.3% of all names reported to the NICS list’s “mental defective” category were provided by the VA. According to the VA, about 177,000 veterans or veterans’ survivors are on that list.
When the VA determines that a veteran is “incompetent” (which is a term so broad that it can mean anything from being unable to balance a checkbook to believing you’re an alien from another planet) and appoints a VA Fiduciary to handle the veteran’s VA compensation, that veteran’s Second Amendment rights are unilaterally stripped from him. His name is entered into the NICS system and he becomes a “prohibited person” under federal firearms laws.
Bye, bye guns.
The Obama administration’s interpretation of the law is questionable. However, in this article, I just want to clear up some misconceptions and provide some ideas for dealing with the current laws.
Of course, this is all based on the assumption that you’re not a danger to yourself or others, and thus, do not belong on the NICS list.
True or False?
All SSA and SSI recipients will be reported to NICS.
False. Only those who have a Rep Payee appointed by the SSA would be reported, just as only VA beneficiaries with VA Fiduciaries appointed by the VA are reported.
I have a Durable Power of Attorney, so I don’t need to worry about this.
False. A legally valid Durable Power of Attorney means nothing to the VA, the SSA or other federal agencies. It might provide some weight when the agency decides who will be your Rep Payee or VA Fiduciary. But don’t count on it.
I have a Revocable Living Trust, so I don’t need to worry about this.
False. See above.
I have a Pre-Need Declaration of Guardian, so I don’t need to worry about this.
False. This document provides guidance to a judge in a civil court when you’re adjudicated “incapacitated” so a guardianship can be established – which is a much more thorough procedure than what the VA and SSA use for determining “incompetency.” It won’t help you with the SSA or VA.
I don’t receive any compensation from the VA and won’t collect Social Security for many years, so I don’t need to worry about this.
Probably false. Obama’s Executive Order requires all federal agencies to report to NICS. We don’t know what information other agencies might report to NICS. Stay alert.
No government agency can just declare me incompetent and take away my Second Amendment rights without some kind of appeals process.
True. Sort of. There is an appeals process, but it has very time-sensitive deadlines that are easy to overlook and it generally takes years before there’s a final ruling. In the meantime, you’re still on the NICS list. Since 2008, 298 appeals were submitted to the VA, and as of April 2015, only 4 had been granted.
If I had problems handling money, my spouse would just take over and the VA or SSA would never know.
Probably false. If your spouse ever had to contact either agency for you, or appeal some decision, you’d be in danger of having a Rep Payee or VA Fiduciary appointed for you. And it might not be your spouse. Additionally, the VA (of its own volition) uses your medical records to determine whether to consider appointing a fiduciary for you. And, anyone – a neighbor, friend, family member, etc. – can also contact the VA (and likely the SSA) to start an investigation to determine whether you’re a “mental defective.”
I have a gun trust, so I don’t have to worry about this.
True and false. I’m assuming you have a comprehensive firearms trust – one that takes all of your guns and ammo out of your regular “family” estate plan and creates an entirely separate plan just for your guns and ammo. A comprehensive gun trust is one that actually discusses federal and state firearms laws, the NFA, and the BATFE. It also provides detailed guidance and instructions to the Trustees and Successor Trustees. A basic NFA-only gun trust does not do this.
But even if you have a comprehensive gun trust, once you’re on the NICS list you’d have to resign as Trustee and you could no longer be a Beneficiary, either.
However, because you made a plan ahead of time, you’d still be in control and could make an orderly transition of your guns and ammo to your Co-Trustee or Successor Trustee. The guns would stay in the family (although away from you) and your other beneficiaries could still enjoy them and even add to the collection while you file your appeal. Once you’re off the NICS list, you could then be added back as a Trustee and Beneficiary.
This scenario is far superior to one in which you have to sell your guns, or “give” them to others to hold until you’re able to possess them again. True gifts are irrevocable – and if it’s not a true gift, you’d both be breaking federal gun laws. Also, the person you gave them to has the legal right to sell or keep them – even when you ask for them back. A trust avoids that problem.
So, how can I avoid having a government agency declare me incompetent and strip me of my fundamental right to keep and bear arms?
- If you get that letter stating that the VA or SSA thinks you might be incompetent (and you’re not!), read that letter VERY carefully and then contact a veterans service organization, a VA-accredited lawyer, or an Elder Law attorney as fast as you can so you don’t miss any deadlines. The key is to avoid a determination of incompetency. Without a determination of incompetency, a Rep Payee or VA Fiduciary can’t be appointed and your Second Amendment rights are safe.
- If, in spite of your efforts, the VA determines you are incompetent, then request relief from the NICS listing. There’s a very specific process to follow; contact a veterans service organization, a VA-accredited lawyer, or an Elder Law attorney. The SSA hasn’t made its regulations public yet, but it would likely follow a similar process.
- This is bad law and needs to be changed. Make your friends aware of what’s happening and support legislation that seeks to protect your rights. R. 2001 – Veterans 2nd Amendment Protection Act, which would not allow a person to be classified as a mental defective without an “…order or finding of a judge, magistrate, or other judicial authority of competent jurisdiction that such person is a danger to himself or herself or others,” is sitting in a House committee. Let your Representatives know they should support it.
- Make sure all your legal estate planning documents are in order. While they won’t preclude the appointment of a Rep Payee or VA Fiduciary, they serve to show that you thought things out in advance and made a conscious decision regarding who should handle your affairs if you can’t.
- Consider having your Estate Planning or Elder Law attorney also create a comprehensive gun trust for your guns and ammo. As I explained earlier, it won’t prevent you from losing the legal ability to possess your guns if you end up on NICS, but it would allow you to control what happens to them.
“Focus on what you can control. You can’t direct the wind, but you can adjust your sails.”
For more information or to schedule a review of your estate plan (including your gun trust) with a VA-accredited Elder Law attorney, give us a call at (941) 444-5958 or email us at info@cmclarklaw.com.
