Social Security Recipients with Fiduciaries Are Now Prohibited Persons

[Bartholomew Roberts]

LA Times is reporting that the Obama Administration has taken executive action to expand NICS denials to Social Security recipients who have had a fiduciary appointed to receive their benefits. In essence, the same policies that the VA has been using to add people to NICS will now be applied to everyone on Social Security.

This has been ongoing since March of this year; but news of it was just released in another Friday afternoon info dump by the Administration.

ETA: This will effectively add 4.2 million people to NICS.

 

[Lord Teapot]

fixing the economy? defeating isis? repairing infrastructure? recovering jobs? why bother with petty concerns when we have real problems to tackle, like stopping 4 million senior citizens from being able to buy guns.

 

[lemaymiami]

As a guy who has a very elderly parent (93 at last count) this is one of those things that's much more a PR stunt than anything else - and typical of the kinds of things our "leaders" find important. You only go to the fiduciary guardian route when your elderly family member is not competent to handle their own affairs (and you're going to need a lawyer, a local court, etc. -I won't even go into the hoops that Social Security will want you to jump through).

I wouldn't waste a moment's time with this - our "leaders" are up to much more damaging stuff daily I'm afraid (wish it weren't so). Can't emphasize how important this next election cycle is....

 

[ilbob]

someone who is so far gone that they are not able to manage their own affairs might well be a good candidate to not be owning firearms anymore. one would hope that the family members of such people had long ago removed firearms from their possession.

this is akin to people who are no longer able to drive having the license to drive removed, or their car keys taken away. if they are a danger to themselves or others, the family has an obligation to act, and most times they do.

my guess is that very few people will be affected by this ruling in any meaningful way.

 

[Bartholomew Roberts]

1) 4.2 million people just had a basic human right enshrined in our Bill of Rights removed from them without due process, without a hearing, without even notice they would lose their Second Amendment right or how to protest it. That's wrong - and not in a small way.

2) The LA Times gives several examples of vets already affected by this who are not at all mentally incapacitated or incompetent; but have had their 2A rights removed. This does affect people beyond those who are senile or mentally incompetent - something Social Security Admin acknowledged themselves in the linked article.

 

[Lord Teapot]

1) 4.2 million people just had a basic human right enshrined in our Bill of Rights removed from them without due process, without a hearing, without even notice they would lose their Second Amendment right or how to protest it. That's wrong - and not in a small way.

2) The LA Times gives several examples of vets already affected by this who are not at all mentally incapacitated or incompetent; but have had their 2A rights removed. This does affect people beyond those who are senile or mentally incompetent - something Social Security Admin acknowledged themselves in the linked article.

this is exactly why the founders worded it 'shall not be infringed' when they wrote the amendment. they knew full well this right would be targeted for destruction in little snippets here and there, over prolonged periods of time, a series of progressive infringements rather than a single revocation or ban. regardless of the wording, however, the infringements continue to occur unabated. this is very concerning, and is another nail in the coffin of the 2nd amendment, as more and more people are being added to the 'mentally deficient' category. soon there will be mandatory psychological tests for buying a gun in some states, i'd bet on it.

 

[danez71]

...... in fairness....

The 1st paragraph....

Seeking tighter controls over firearm purchases, the Obama administration is pushing to ban Social Security beneficiaries from owning guns if they lack the mental capacity to manage their own affairs, a move that could affect millions whose monthly disability payments are handled by others..

At face value..... I agree with:

).

I wouldn't waste a moment's time with this - our "leaders" are up to much more damaging stuff daily I'm afraid (wish it weren't so).

Our President wanting to keep people from buying guns when they aren't capable of taking care of themselves after a family member went trough some fairly extensive and lengthy actions to take control of their elderly relative affairs (which kinda confirms they aren't able anymore) isn't any where near the top of my list to fight against.


However, I agree with the comment about it being a PR stunt.

If they aren't capable of handling their own business, they probably couldn't fill out the forms needed to buy one from a FFL or the ability to coherently look for a private seller in a free state where they both should be living.

 

[Lord Teapot]

someone who is so far gone that they are not able to manage their own affairs might well be a good candidate to not be owning firearms anymore. one would hope that the family members of such people had long ago removed firearms from their possession.

this is akin to people who are no longer able to drive having the license to drive removed, or their car keys taken away. if they are a danger to themselves or others, the family has an obligation to act, and most times they do.

my guess is that very few people will be affected by this ruling in any meaningful way.

yes, let us hope that 4 million people have been disarmed by their families, so that jack booted leftist thugs in uniform don't have to take action for the children, hopefully at the right address, right?

 

[heyjoe]

This also includes people who because of medical condition or disease cannot handle their own financial affairs because they cant physically make it to the bank. They may be homebound but not psychological cases. But i guess its ok to take away the second amendment rights of those physically ill also, why get concerned about it.

 

[herrwalther]

Why is anyone surprised by this? Obama has made it very clear that with his "pen and phone" he will push his agenda whether Congress likes it or not. He touts the "no one is coming to take your guns" but quietly stabs the Second Amendment in the back whenever he can.

 

[Rancher5]

When is last time you heard of a 90 yr old shooting someone innocent slippery slop, sounds good, Bah, if they're held as incompetent fine, if not should be able to own firearm.

 

[Bartholomew Roberts]

Seeking tighter controls over firearm purchases, the Obama administration is pushing to ban Social Security beneficiaries from owning guns if they lack the mental capacity to manage their own affairs, a move that could affect millions whose monthly disability payments are handled by others.

See, that sounds reasonable; but that isn't what SSA is doing. SSA has no way of knowing who lacks mental capacity to manage their own affairs because like the VA, they don't track that. So they are just assuming that anyone who has a fiduciary appointed lacks mental capacity and adding them to NICS - because they can track that.

They are basically saying it is easier to just throw all 4.2 million people on the list than, you know, try and figure out who actually belongs on the list. And since the VA has been getting away with this for years now, why not?

 

[danez71]

See, that sounds reasonable; but that isn't what SSA is doing. SSA has no way of knowing who lacks mental capacity to manage their own affairs because like the VA, they don't track that. So they are just assuming that anyone who has a fiduciary appointed lacks mental capacity and adding them to NICS - because they can track that.

They are basically saying it is easier to just throw all 4.2 million people on the list than, you know, try and figure out who actually belongs on the list. And since the VA has been getting away with this for years now, why not?

You're wrong about that.

In order for someone to take control of their affairs they have to go through a big process.

All the 'unable person' has to do to stop it, for example, is show that they are competent enough to write a check and pay for their electric/water, they can get food and eat it themsleves etc.

http://www.socialsecurity.gov/OP_Home/handbook/handbook.16/handbook-1605.html

1605. What is legal evidence of incapability



A court judgment that a beneficiary is legally incompetent, is legal evidence. If there is such a judgment, we will:

•Obtain a certified copy of the court order;

•Presume the beneficiary cannot manage payments; and

•Select an appropriate representative payee.

However, the appointment of a legal guardian alone doesn't necessarily mean the beneficiary is legally incompetent. The court order must specifically address the beneficiary's competency or must contain a statement regarding the individual's ability to handle his/her financial affairs.

If the court order is more than one year old, SSA will obtain a court certification that the order is still in effect.

Similarly, if a court order has restored a beneficiary's competency, SSA will obtain a certified copy of the order.

http://www.socialsecurity.gov/OP_Home/rulings/oasi/33/SSR85-14-oasi-33.html

Adult beneficiaries (age 18 or older) that are adjudged legally incompetent

Where the beneficiary is adjudged legally incompetent, he or she would have a court-appointed guardian (conservator, committee). Advance notice of the need for representative payment and identity of the proposed payee is not sent to the beneficiary since it would serve no useful purpose.

 

[hso]

the VA, which has been entering names into the system since the beginning. About 177,000 veterans and survivors of veterans are in the system, according to VA figures.

The VA reports names under a category in gun control regulations known as "adjudicated as a mental defective," terminology that derives from decades-old laws. Its only criterion is whether somebody has been appointed a fiduciary.

So due to a traumatic brain injury that only makes tracking your finances difficult the VA can add a service member to the NICS denial list without adjudication as mentally defective by a court. The same now might be applied to a Social Security benefit recipient that has had a stroke and suffers the same sort of brain injury effect? And veterans and disabled and senior citizen groups aren't screaming their heads off?

 

[Valkman]

[QUOTEAll the 'unable person' has to do to stop it, for example, is show that they are competent enough to write a check and pay for their electric/water, they can get food and eat it themsleves etc.][/QUOTE]

Wrong. I can do all those things and handle firearms yet the SSA MADE my wife be my representative for financial affairs. Now they're going to take them away for something I had no control of?

 

[Bartholomew Roberts]

You're wrong about that.

No, you misunderstood me. What I meant was that neither SSA nor the VA have a list of who they are paying money to who would be disqualified under 18 USC 922 (g). They don't have any reason to track that information, so they can't just say "only these people who have been certified by a court as mentally incompetent are going to be put in NICS." They acknowledge as much to the LA Times. So what they are going to do instead is put all of them in NICS - whether mentally incompetent or not.

Does that explain it more clearly?

In order for someone to take control of their affairs they have to go through a big process.

The SSA looks at several kinds of evidence to determine whether a fiduciary should be appointed (see Section 1604).

This includes legal evidence (which you quoted), medical evidence (Section 1606 but basically any physician or psychologist), or lay evidence (Section 1607) - which means:

Lay evidence is any non-legal or non-medical information that helps us understand how a beneficiary functions in day-to-day life. For example, it may be evidence of how the beneficiary has been managing any available funds, prior to Social Security payments, to meet his or her daily needs.

Some typical examples of lay evidence are:

Our observations (during a face-to-face interview) of the beneficiary’s behavior, reasoning ability, how he or she functions with others and how effectively he or she pursues the claim; or

Any signed statements from people (such as relatives, close friends, neighbors or landlords) who are in a position to know of the beneficiary's ability to manage his or her funds.

So as you can see, you don't need a court order to request a representative payee/fiduciary be appointed. It can also be assigned to you without requesting it (see Valkman's post) and without anything approaching due process or a court hearing.

However, all of the misses the main point I was trying to make - which is that people who requested a fiduciary because of a physical handicap are going to be added to NICS right alongside people who were declared mentally incompetent via court order.

 

[Bartholomew Roberts]

So due to a traumatic brain injury that only makes tracking your finances difficult the VA can add a service member to the NICS denial list without adjudication as mentally defective by a court. The same now might be applied to a Social Security benefit recipient that has had a stroke and suffers the same sort of brain injury effect? And veterans and disabled and senior citizen groups aren't screaming their heads off?

The news on Social Security just came out yesterday afternoon. So we'll see how senior citizen's groups respond on Monday.

Veteran's groups have been screaming about the VA for years. The NICS Improvement Act of 2007 was supposed to fix the issue; but all that changed was the VA provided a process to appeal the decision. Since that time, Congress has attempted several bills to clarify that - Lindsay's Graham offered an amendment to that effect that was adopted as part of the Universal Background Check bill (the overall bill later failing due to the gun control aspects). And even right now, there are bills* aimed at limiting the VA to only adding people who have been adjudicated mentally ill and found a danger to themselves or others (*there have been bills proposed on this this session - not sure if they have been added as budget riders to VA's budget or are still going through the normal process).

 

[Bartholomew Roberts]

Wrong. I can do all those things and handle firearms yet the SSA MADE my wife be my representative for financial affairs. Now they're going to take them away for something I had no control of?

Technically, you'll just be added to NICS. Since you don't meet the legal definition of 18 USC 922 (g), you can make an argument that you can still buy privately and possess firearms. Though this executive action will certainly add a lot of gray area to that.

It will be interesting to see how BATFE interprets that if VA and SSA both continue to add people who aren't mentally incompetent to NICS under that approach.

Also under the 2007 NICS Improvement Act, SSA must provide an appeals process to those who have been entered into NICS to challenge that assessment. We'll see if they are as prompt in setting that up as they have been in entering the information.

 

[Blondie]

It is things like this that are the little chipping away of our rights. No voting or public discussion, and most likely the media will not pick up on this. One day, there will probably be a determination that any behavior they select indicates a decreased mental capacity to take them all away.

"Sir, you tried to buy 2 handguns in less than 5 days. The law says if you do that, there is presumption you lack capacity because what sane/harmless person would buy 2 handguns in less than 5 days. Now, please turn in all of your guns."

 

[danez71]

No, you misunderstood me. What I meant was that neither SSA nor the VA have a list of who they are paying money to who would be disqualified under 18 USC 922 (g). They don't have any reason to track that information, so they can't just say "only these people who have been certified by a court as mentally incompetent are going to be put in NICS." They acknowledge as much to the LA Times. So what they are going to do instead is put all of them in NICS - whether mentally incompetent or not.

Does that explain it more clearly?

<snip>
.

Ahhh. Yes. ..... I misunderstood.

And everything I posted was about 'court determined' incompetent but I do realize that there are other ways it can happen.

Sorry for miss-understanding your post.

 

[Sol]

Well when you deal with the devil, don't be shocked by his price, product or the strings attached to his business.

That sucks but oh well, can't have your cake and eat it too.

 

[patmccoy]

Regardless of the "might happens", one good way to deal with this is to establish a living trust, normally with spouse as trustee, and have your SS benefits deposited into the trust account. Pretty tough for SSA to come in the future and say you must have a financial representative, as you hvae been using one for many years.

 

[Valkman]

Well when you deal with the devil, don't be shocked by his price, product or the strings attached to his business.

That sucks but oh well, can't have your cake and eat it too

Yep, it's not you that it affects so who cares? Maybe when you are forced to apply for SSD you'll change your tune.

 

[Bartholomew Roberts]

Regardless of the "might happens", one good way to deal with this is to establish a living trust, normally with spouse as trustee, and have your SS benefits deposited into the trust account. Pretty tough for SSA to come in the future and say you must have a financial representative, as you hvae been using one for many years.

Based on what LA Times is reporting, you'd still be added to NICS since the Trust is a representative payee.

Hopefully, SSA wakes up to find their chair on fire Monday morning and decides to be more selective in complying with the order rather than following the same bad policy set by the VA.

 

[barnbwt]

"Hopefully, SSA wakes up to find their chair on fire Monday morning and decides to be more selective in complying with the order rather than following the same bad policy set by the VA."

No kidding. Stupid grabs like this is how you get the whole statute thrown out in court. How careers get ruined. Seeing how the ATF completely botched their last couple attempts to take similar unilateral actions (in one case, likely resulting in the re-opening of the machinegun registry, in trying to buck centuries' worth of trust law precedent) at the Executive's discretion, I find it comical that these Bureau chiefs are still going out on a limb for a guy who obviously doesn't care what the ultimate legal implications for his 'soft power projection' are. All it takes is one sympathetic and erudite judge who is made aware of the sheer number of false-positives in the NICS systems and the difficulty in resolving them, and the whole kit and caboodle is overturned. How does shoving a whole new class of false-positives into the mix do anything but expedite that?

TCB