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.

[heyjoe]

many of whom only have a physical condition or disease,not a psychological one

[Bartholomew Roberts]

Yes, it seems one aspect isn't well understood so I should point this out in more detail. The Obama Administration is painting this as:

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.

The thing is, neither Social Security nor the VA can tell which of its people have fiduciaries appointed because they lack the mental capacity to manage their own affairs. They don't track that information because they didn't report to NICS previously. So they are just assuming that anyone with a fiduciary lacks mental capacity and reporting them to NICS.

I'd also note, this isn't limited to Social Security and the Veteran's Administration. The order went out to all federal agencies to make sure they were reporting people to NICS. So if other agencies follow suit, this could effect even more people.

[johnwilliamson062]

Would this go for anyone with a revocable living trust?
Some have such arrangements with no disability, only bein prepared for the future.

[Onward Allusion]

Would this go for anyone with a revocable living trust?

Even if this ever came to being, how would the guberment know about a living trust?

[leadcounsel]

Another reason to pull the lever for R and not D, in spite of all the folks that say that the Rs are just as bad.

The sad result of these policies is that it will steer people to have more mistrust in government, and less likely to seek treatment for mental health or similar issues.

The very people we want to seek treatment, gun owners with mental health problems, are the ones that will be deterred.

[Aguila Blanca]

Originally Posted by leadcounsel

The sad result of these policies is that it will steer people to have more mistrust in government, and less likely to seek treatment for mental health or similar issues.

The very people we want to seek treatment, gun owners with mental health problems, are the ones that will be deterred.

QFT.

[Bartholomew Roberts]

Would this go for anyone with a revocable living trust?

If the trust is named the Responsible Payee, that is certainly possible. In requesting a "Responsible Payee" on Form SSA-11, the question is "Tell us why the payee cannot manage their finances"

Aside from the question assuming the payee is incompetent to manage finances, there is no way for SSA to easily sort that data without paying a clerk to go through 4.2 million forms by hand. It took ATF what... 18-24 months to clear a backlog of 80,000 Form 1s and 4s?

Basically, SSA is proposing doing what the VA has already been doing since 1999. So I'd expect them to follow those practices. I did some brief research, and VA requires Trusts to apply for a Responsible Payee and cites federal law for the requirement.

[44 AMP]

if they lack the mental capacity to manage their own affairs,

This part has been the law since 68. However (and please, correct me if I'm wrong) for firearms, this has to be done by a court hearing (adjudicated mentally incompetent) NOT the Social Security Administration, the VA, a doctor, or popular opinion. It takes a court to put you in the prohibited person class due to your mental state.

SO, it appears that while they what they are saying in their sound bytes is in compliance with established law, the method they are actually using to make the determination is not.

not good.

[Bartholomew Roberts]

Originally Posted by 44AMP

SO, it appears that while they what they are saying in their sound bytes is in compliance with established law, the method they are actually using to make the determination is not.

It is actually even worse than that - SSA is saying it is just too hard to figure out who would be affected by applying the law as written, so they are going to assume everyone with a Responsible Payee/Fiduciary is mentally incompetent. It isn't just that they are using a method to make the determination that doesn't meet the criteria of the law - they KNOW they are including some percentage of people who aren't prohibited persons.

Of course, how SSA implements this policy remains to be seen. They've apparently been working on it quietly since March 2015. If they implement it in the same manner as the Veteran's Administration, then it will be as I described above.

I think SSA has significantly underestimated the pushback they will get from doing that though considering how many more people will be affected.

This part has been the law since 68. However (and please, correct me if I'm wrong) for firearms, this has to be done by a court hearing (adjudicated mentally incompetent) NOT the Social Security Administration, the VA, a doctor, or popular opinion. It takes a court to put you in the prohibited person class due to your mental state.

On a side note, there are two mental health prohibitions: involuntary commital to a mental institution or "adjudicated mentally defective" - there is a Circuit Court split on how the latter phrase should be interpreted. In some jurisdictions, a temporary involuntary commitment for observation (which can be done on a doctor's say with no hearing) can cost you your Second Amendment rights; but the dominant view is still that you don't get deprived of Bill of Rights guarantees without due process.

It is a much longer explanation; but kind of off this topic. I can go into detail on it though.

[Aguila Blanca]

Originally Posted by Bartholomew Roberts

If the trust is named the Responsible Payee, that is certainly possible. In requesting a "Responsible Payee" on Form SSA-11, the question is "Tell us why the payee cannot manage their finances"

Would, "He can but he chooses to do so through a legal smokescreen" be a satisfactory answer?

[doofus47]

Aguila Blanca

QFT.

I'm ignorant. what does QFT mean?

[raimius]

QFT means "quoted for truth"

[doofus47]

thanks, ramius

[Bartholomew Roberts]

Would, "He can but he chooses to do so through a legal smokescreen" be a satisfactory answer?

Hard to say since if what LA Times is reporting is correct, they aren't going to bother reading the answer before adding you to NICS.

[jtmckinney]

Could this in any way make it illegal to sell via private transaction that doesn't go through NICS?

[Remington74]

My guns today, your guns tomorrow.

Remember...If you like your insurance you can keep your insurance.

I believe they are looking at 2A sort of like "How do you eat an elephant?

Answer....One bite at a time.

[motorhead0922]

How many violent crimes are committed by those with a fiduciary?

[Bartholomew Roberts]

Could this in any way make it illegal to sell via private transaction that doesn't go through NICS?

It would be kind of a gray area in that a Federal agency would have entered you into NICS as a prohibited person by virtue of being "adjudicated mentally defective." But if the person in question hasn't actually met any of the criteria for that, then what? That case could go either way in the current legal environment - you'd be much better off in those jurisdictions that apply a narrower interpretation of "adjudicated mentally deficient".

I don't think that would fly in the Fifth Circuit for example.

[doofus47]

motorhead0922

How many violent crimes are committed by those with a fiduciary?

Or you could think of it as "how many violent crimes COULD they commit..?" Saving the children of the future, one imaginary crazed serial killer grandma at a time...

Would you please stop with that voice of reason stuff? That's just gonna ruin the dialog.

[Bartholomew Roberts]

The key language from the article is this:

There is no simple way to identify that group, but a strategy used by the Department of Veterans Affairs since the creation of the background check system is reporting anyone who has been declared incompetent to manage pension or disability payments and assigned a fiduciary.

Apparently in Social Security lingo, there are two categories of beneficiaries who receive Representative Payees - Incapable and Incompetent. The definitions are as follows:

A: "Incapable – a determination we make that a beneficiary is unable to manage or direct the management of funds. We pay benefits due a beneficiary determined incapable through a representative payee. We base a determination of incapability on various kinds of evidence.

Our determination of incapability is not the same as a State court’s finding of “legal incompetence” and the two findings are not necessarily equivalent.

B: Incompetent (or legally incompetent) – a decision made by a State court that an individual is unable to manage his or her affairs. We presume that any beneficiary a State court finds legally incompetent needs a payee for SSA benefits. On the other hand, a beneficiary we determine incapable might not also be legally incompetent.

The "Incapable" category includes prohibited persons like the mentally ill and drug abusers; but also includes those with physical disability, etc. The "Incompetent" category includes only those people with some type of state court proceeding. If you have had a legal guardian appointed for you by a state court or you have been found mentally incompetent to manage your affairs, then you are "Incompetent" in SSA lingo. You can also be "Incompetent" but not "Incapable" apparently. SSA does track this distinction and can sort these two categories out.

If we assume that the reporter for LA Times used the correct language and SSA used the correct language in talking to the reporter, then the SSA move is aimed only at those who have been "declared incompetent" - meaning that this only affects people who have had some type of state court proceeding and it will not affect people who simply requested a Representative Payee for convenience's sake (at this time anyway). The bad news is there will still be 4.2 million people affected. The proceedings that are being used to remove their Second Amendment rights were in many cases not intended to do that and there is no finding by the courts that they were a danger to themselves or others in many of the cases. Something as simple as having a Legal Guardian appointed by the Court can trigger it (if the person receives SS benefits). So again, there are prohibited persons and non-prohibited persons included in this category; but if you have not had some type of court case involving your competency or having a guardian appointed for you, if you have not sent certified court papers to SSA, you should not have to worry about being included in NICS.

So it is not by any means a good situation; but it is a lot better than the one I've been describing through the thread - of course, all of this assumes that the reporter got that specific language right and that is how SSA meant to implement it, etc. etc.

[RAfiringline]

Here's something that's new to me, maybe it's hyped up or out of context...

http://www.wnd.com/2015/06/vets-told...ndment-rights/

"A legal team investigating the Obama administration’s order that certain American military veterans deemed “incompetent” give up their weapons says the problem is worse than expected.

People who live with veterans now are being ordered not to possess a gun, and some veterans are told they can “buy back” their Second Amendment rights by giving up their veterans’ benefits.

“This is simply unbelievable, On the one hand the [Veterans Administration] and the FBI have found veterans to be mentally ill and too dangerous to be allowed to own firearms, while on the other hand allowing these allegedly dangerous people to buy their firearms rights back,” wrote Michael Connelly, executive director of the United States Justice Foundation in a report. "

[Tom Servo]

Or you could think of it as "how many violent crimes COULD they commit..?"

When we start punishing people based on the things they might do, we travel a very dark road.

The proceedings that are being used to remove their Second Amendment rights were in many cases not intended to do that and there is no finding by the courts that they were a danger to themselves or others in many of the cases.

This is what worries me. If I'm just forgetful, I don't deserve to have rights stripped from me.

I honestly can't see what good this will do. This isn't a category of people known for a disposition towards violence. The only reason this is happening is because the administration is desperate to do anything they can to restrict gun ownership.

For the sake of political points, they're willing to throw anybody under the bus. This is the point we need to make when we contact our legislators.

[thallub]

This report is titled Oversight of Federal Fiduciaries and Court-Appointed Guardians Needs Improvement. It is dated July, 2011. It's from the GAO to the US senate special committee on aging:

Incapacity is often associated with old age, and as of December 2009, 765,771 SSA beneficiaries age 65 or older had fiduciaries—a 7 percent increase since December 2003. As of July 2011, 56,077 VA beneficiaries age 65 or older had fiduciaries—a 21 percent increase since September 2003. Few national data are available on the number of guardians state courts have appointed

http://r.search.yahoo.com/_ylt=AwrBT...3JEF9RpYVNp9g-

[Kosh75287]

+1 concerning Motorhead's question. These tyrants don't care about curbing crime, and they never have. It's about stripping gun ownership rights from the electorate, one increment at a time.

This is a gun-grab, plain and simple. Only a President who embodies the "Mendacity of DOPE" would be so bold. The sooner HE'S out of office, the better.