You plan a lot of things. You plan for medical expenses by purchasing health insurance. You plan for incapacity when you sign powers of attorney. You plan for an orderly transition of your estate when you execute a will.
But do you have a plan in place for your firearms?
It is not a frivolous question. A 2017 Gallup poll concluded that there were 110 million gun-owning households. Nearly half of all seniors either own a gun or have a gun located in their home.
If that describes you, then consider one more statistic: You have a 1 in 3 chance of suffering from dementia if you live into your 80s.
You may be a responsible gun owner now, but if you later develop Alzheimer’s or another type of dementia, all bets are off. It is not uncommon for a person suffering from dementia to experience delusions, fear, rage and paranoia. Throw a gun into the mix ….
The few laws out there are not very helpful. The Federal Gun Control Act of 1969 makes it illegal for a person who has been adjudicated as a “mental defective” or been committed to a mental institution to possess firearms or ammunition. That means a court, or an agency, must find that you lack the mental capacity to contract or manage your own affairs.
The problem, of course, is that most people with dementia have not gone through a court or agency proceeding that finds they are a “mental defective.” If there is no adjudication, then there is no barrier to owning or possessing a firearm under that portion of the Gun Control Act.
On the state side, Texas prohibits anyone with “chronic dementia” from holding a concealed carry permit. If you live in Texas, then you already know the limitations of that law.
Then there is the extra complication of Title II weapons. These are firearms that fall under Title II of the National Firearms Act, and include fully automatic weapons, suppressors, short-barreled shotguns and others. You must have a special permit to own and possess these weapons. This, of course, means that few people could legally take possession of your Title II weapon if you become incapacitated.
That brings us to the inevitable conclusion: If you are a responsible gun owner, you should have a plan in place for your firearms in the event you develop dementia or become otherwise incapacitated.
What should you be doing now?
• Make an inventory of your firearms: make, model, caliber and serial number of each weapon.
• Identify which are Title II firearms.
• Compile a list of your ammunition.
• Review how your firearms and ammunition are secured.
• Discuss who you want to inherit your firearms.
• If you have expensive or rare items, then discuss if they will eventually be sold or donated.
If you or someone in your household develops dementia, then you should consider doing one of more of the following:
• Create a gun trust. This will provide for management of the firearms during incapacity, and final disposition after death.
• Make a gift, now, of your weapons to someone who will remove them from your household.
• Sell your firearms so you have money for your future care needs.
• If your firearms are rare, then donate them to a museum or charity.
• Move your gun safe to a trusted friend or relative’s residence for safekeeping.
You may own guns now for protection, but who is going to protect you from your guns if dementia hits?
Attorney Virginia Hammerle will present “Wills and Trusts 101″ from 2 to 3 p.m. on Nov. 1 (F) at the Skillman Southwestern Branch Library, 5707 Skillman St., Dallas. Registration is required. To register, visit dallaslibrary2.org, click on Events, choose Skillman Southwestern Branch and click on “Trusts 101,” or call 214-670-6078.
Attorney Virginia Hammerle is board certified in civil trial law by the Texas Board of Legal Specialization and an accredited estate planner. To receive her monthly newsletter, contact her at legaltalktexas@hammerle.com or visit hammerle.com. This column does not constitute legal advice.
