Guns and Dementia

Art-artsy-background-1056555Researchers estimate that nearly half of people over 65 either own a gun or live in a household with someone who does. Thus, it is important for family members of those with dementia to recognize the importance of gun safety, and to deal with that issue as early as possible.

At the more advanced stages of dementia, when the person might not recognize a loved one, including a spouse, that person can become frightened and threaten or do harm to the loved one out of confusion or the perceived need to protect him/herself from this stranger in the house. The risk of suicide or accidental self-harm also increases as the dementia becomes more pronounced. Here are some legal and practical steps to stay safe. 

What can families do ahead of time?

Talk to your loved one early on about how to safely transfer ownership of, or store, his/her guns if he/she should become incapacitated. At a minimum, consider writing a firearms agreement, in which the owner would authorize a designated family member to determine when it is time to remove access by the owner to her/his guns.

At the very least, family members should make arrangements to store the guns unloaded in a locked cabinet or safe, with the ammunition stored separately. Doctors are legally allowed to inquire about access to firearms when a person is diagnosed with dementia, but, experts say, they often don’t. Therefore, families should discuss with the doctor gun safety along with other concerns, such as driving and use of kitchen appliances and power tools. 

What if a person with dementia wants to transfer his/her guns?

In Pennsylvania, there are strict rules on the sale or transfer of guns by unlicensed sellers; typically they may only sell a handgun or short-barreled rifle or shotgun to an unlicensed purchaser at the place of business of a licensed importer, manufacturer, dealer or county sheriff’s office, which sale or transfer must comply with all of Pennsylvania’s dealer regulations, including a background check on the purchaser. However, these requirements do not apply to transfers between spouses, parents and children, or grandparents and grandchildren, or generally to transfers of long guns; thus, such transfers can be fairly easily accomplished. For gun laws of other states, see the websites NRA Institute for Legislative Action or Giffords Law Center to Prevent Gun Violence.

What if the gun owner doesn’t want to give them up?

By federal law, a person loses the right to buy or own a gun if a judge deems that person mentally incompetent to make decisions. In such a case, family members likely would have to go to court and obtain a guardianship of the person, so that the guardian can take control of the guns.

What about veterans?

Veterans who have been deemed mentally incompetent to manage their finances also lose their right, under federal law, to buy or own guns. As of March 2018 nearly 109,000 veterans were barred from gun ownership because of their enrollment in the Veterans Affairs fiduciary program.

What if they’re making threats?

Police can take guns away from someone who threatens a specific crime. Pennsylvania does not have a “red flag” gun law permitting the removal of guns from a person who exhibits dangerous behavior. However, Pennsylvania recently passed a law requiring those subject to a final protection from abuse order or convicted of misdemeanor domestic violence to turn over their weapons to law enforcement within 24 hours after the order or conviction. 

The possession or control of firearms is an important topic of discussion and planning with those who show signs of dementia, and sooner rather than later.  And it’s important to get your planning done sooner rather than later.  Take the first step today and register for one of our upcoming workshops.


Life Insurance, IRAs, and Wills

Board-2084777_640Many people are confused about the way that life insurance, IRAs and other qualified retirement plans operate under their Wills. The short answer is, they don’t!  Life insurance, IRAs and other retirement plans which are qualified for special tax deferment by the IRS (thus called qualified retirement plans) are beneficiary-driven. 

This simply means that upon the owner’s death they will go directly to the person you have named as the beneficiary. A probate estate is what is passed on through your Will, and consists of property owned in your name only. A beneficiary designated asset essentially goes around your Will directly to the person or entity that you name as the beneficiary.

Beneficiary designated accounts are commonly referred to as non-probate assets.  Assets that are required to pass through your Will are referred to as probate assets.  There are many examples of non-probate and probate assets: Your IRA, 401(k), 403(b) and life insurance policies are non-probate assets, while a car titled in just your individual name is a probate asset.

Some assets could be either non-probate or probate, depending on how many people own the account.  For example, a bank account that you own with your spouse is a non-probate asset because your spouse assumes full ownership upon your death.

However, a bank account that you own in just your name is a probate asset because you own it as an individual. A certificate of deposit (CD) is another example of an asset that could be either probate or non—probate.  It would depend on whether you have named a beneficiary for the CD (not probate), or not (probate).  

Understanding the distinction between probate versus non-probate assets is critical for proper estate planning.  People often mistakenly believe that when they make a Will, they are disposing of all of their property according to the instructions in the Will.  This would only be the case if the beneficiary designations on their non probate assets match the instructions contained in the Will. Remember, the Will is not going to have anything to do with who receives that beneficiary driven account, or any other account that is a non-probate asset. 

Take for example the case of John, the Widower. John has two children: a daughter, Jane, who is quite successful; and a son, Tom, who is not. Jane has told her father that she does not need his estate assets as much as Tom, and encourages him to do more to help Tom after his death. Accordingly, John creates a brand new Will in which he leaves 80% of his estate to Tom and only 20% to his more successful daughter Jane. John is happy that he can help Tom more after his death, and he assumes he has created an effective estate plan to accomplish his wishes. 

Unfortunately, when John set up his 401(k) retirement plan at work decades ago, he naturally named his wife as his primary beneficiary and his then-young children, Jane and Tom, as equal (50% each) secondary beneficiaries. He did the same thing for his $200,000 life insurance policy he purchased not long after he started working. Because John’s wife has already passed away, Jane and Tom are now equal beneficiaries of his retirement plan and the life insurance policy. 

Other than his 1985 Buick, these are really the only assets that John owns when he dies not long after creating his new Will. Unfortunately, because he failed to match his beneficiary designations with his new Will, when John passed away, Tom only received 50% of the 401(k) and Life Insurance policy; a far cry from the 80% John wanted his son to receive. The only asset left to divide 80%-20% was that faithful old 1985 Buick.

You can see how important it is to be mindful of the impact of non-probate assets when planning your estate!  To find out more about this and all things estate planning and/or asset protection planning, join us for one of our upcoming workshops.  Just click here for more information.