Taking a family member's guns away

[cjwils]

Presently in the General Discussion Forum there is a thread about dementia and firearms ownership. That got me thinking about a related topic, which I mentioned in that thread, but no one followed up on my comment. I will try again here, since it is a legal issue.

In Washington State where I live, or in Maine if the new Bloomberg ballot measure passes there, or in any other state where private transfers are regulated, how should the issue of taking guns away from a mentally disabled family member be handled? Let's say that I had a gun-owning relative in Washington State, and I and other relatives decide that his guns should be removed because he is showing significant signs of dementia.

The law in Washington State now applies the following requirement to any private firearms transfer: "The seller or transferor shall deliver the firearm to a licensed dealer to process the sale or transfer...." Washington State law exempts "bona fide" gifts between family members, but taking someone’s guns is not a gifting situation. I don’t see any other exemption in Washington law that would apply.

Imagine the nightmare of trying to drag an unwilling, demented gun owner down to the local FFL in order to have the FFL give official blessing to a legal transfer. Also, imagine the nightmare of trying to get a court involved. Is there another legal option?

 

[Frank Ettin]

A possible unintended consequence of the Washington State type of universal background check law.

One could go to court to be appointed a conservator for the mentally disabled person. The conservator could then take possession of the guns and manage the storage or disposition of them.

 

[zukiphile]

If an individual is genuinely afflicted with dementia, it may be difficult to find a window of lucidity in which he could execute the documents that many states require for a conservator's application, power of attorney, trust or any other legal measure short of a full-blown guardianship.

There is a reason that some people are reluctant to enter into these arrangements – they do not trust their children to run their lives to any significant degree. Adult children stealing from their failing parents is more common than one might imagine, and not exclusively a phenomenon entertained by those with dementia. These can be very difficult conversations to have with a parent, but if there is sufficient trust remaining, it may be a fine idea to have the documents prepared and ready to sign so that when a lucid moment arises, they (the documents) can be executed.

This is not only a firearms issue; there are lots of financial and medical issues that arise in the last several years of life. Good planning can make resolution of those issues much less painful.

 

[TXAZ]

This is heart wrenching but ultimately is a personal / family responsibility.

It's unlikely the FFL has any competent training to detect one of the disqualifing afflictions a family member wouldn't.

 

[cjwils]

TXAZ, I agree, it should be within the family; but like I indicated in my original post, in Washington State and some other places, it seems that the family cannot legally step in and take someone's guns without going through an FFL or going to court. That is the problem I am discussing.

 

[Frank Ettin]

.. in Washington State and some other places, it seems that the family cannot legally step in and take someone's guns without going through an FFL or going to court. ...

First, in Washington State and some other States it will almost certainly require going to court. It's doubtful that trying a transfer through an FFL would work out.

And even in States which doesn't require formalities for a private party transfer, family member just taking charge of the guns could create legal issues. Those guns are, after all, someone's property; and he could legitimately complain about them being taken from him -- unless/until he is formally determined to be incompetent and a conservator or guardian appointed to deal with his affairs.

This is not only a firearms issue; there are lots of financial and medical issues that arise in the last several years of life. Good planning can make resolution of those issues much less painful.....

And that's exactly right. There are ways to manage this matters, but they are best put in place well in advance of need.

 

[lilwoody]

This is exactly why you spend the money to set up a trust while you are anle. After seeing the disgusting way family can act when money and possessions become a problem we had one drawn up very quickly. Yup it's going to cost a couple grand but it eliminates any bickering, moaning or groaning after you are gone or found to be here but not really here. If you live in one of the socialist states that doesn't allow certain guns to be transferred to heirs, send them somewhere they can.

 

[RolandD]

This is where "well meaning" or "common sense" laws become a pain in the butt.

When my father's dementia got to the point where I worried for my mother's safety, dad's guns got, quietly, stored at my house and stayed there after he passed. Seemed like a no trainer.

 

[Buzzcook]

The Washington state law doesn't apply to involuntary transfers. For that you have to go to court.

However voluntary (in state) transfers between family members don't need register the transfer.

So it is possible that if a court orders that a personss guns be removed, a transfer to a relative would not have to be registered. But that is something for the courts to decide.

 

[cjwils]

Buzzcook, I think you are totally wrong about in-family transfers under present Washington State law. Please see the part of the law that I quoted in the original post. For more detail, you can google I-594 to see the full text.

 

[dajowi]

We get a lot of elderly people at the indoor pistol range. Some of these people are really frail. Some have hearing problems. Some shake so badly that the thought of a pistol in their hands seems scary.

I agree with Roland D. This is a no brainer.

 

[TXAZ]

cjwils
I understand, but turning to a nanny state is ludicrous and personally expensive. Just looking at the number of guns in Texas, and the sanity-age-out rate, there aren't enough attorneys to handle the effort. It may not be as large in other states, but the point is the law is inherently flawed when there isn't the bandwidth or funds to apply to all equally.

I have no problem telling an impaired relative they loaned the gun to a (unnamed) friend, or must have misplaced it, then let them prove otherwise. Maybe many families don't have the guts to do that, and most probably can't afford an attorney that probably cost more than the gun is worth.

(And another +1 for Roland)

 

[Old Bill Dibble]

https://app.leg.wa.gov/rcw/default.aspx?cite=9.41.113



Washington State Law Reads:

(4) This section does not apply to:
(a) A transfer between immediate family members, which for this subsection shall be limited to spouses, domestic partners, parents, children, siblings, grandparents, grandchildren, nieces, nephews, first cousins, aunts, and uncles, that is a bona fide gift;
(b) The sale or transfer of an antique firearm;
(c) A temporary transfer of possession of a firearm if such transfer is necessary to prevent imminent death or great bodily harm to the person to whom the firearm is transferred if:
(i) The temporary transfer only lasts as long as immediately necessary to prevent such imminent death or great bodily harm; and
(ii) The person to whom the firearm is transferred is not prohibited from possessing firearms under state or federal law;

So this whole conversation is moot.

 

[raimius]

That's not clear cut for this kind of case.
It does not fall under (a), as it is not a gift.
It may fall under (c), but the "imminent" danger standard may or may not be met, as well as the "temporary" part of (c)(i). That would likely be decided by a judge, in the end.

 

[Frank Ettin]

Washington State Law Reads:

(4) This section does not apply to:
(a) A transfer between immediate family members, which for this subsection shall be limited to spouses, domestic partners, parents, children, siblings, grandparents, grandchildren, nieces, nephews, first cousins, aunts, and uncles, that is a bona fide gift;
(b) The sale or transfer of an antique firearm;
(c) A temporary transfer of possession of a firearm if such transfer is necessary to prevent imminent death or great bodily harm to the person to whom the firearm is transferred if:
(i) The temporary transfer only lasts as long as immediately necessary to prevent such imminent death or great bodily harm; and
(ii) The person to whom the firearm is transferred is not prohibited from possessing firearms under state or federal law;

So this whole conversation is moot.

Maybe not. It's quite possible that a judge would not necessarily consider a family member taking someone's guns to be a bona fide gift -- especially if the person the guns are being taken from objects.

 

[Old Bill Dibble]

Did you read the part about being a danger?

 

[Frank Ettin]

Did you read the part about being a danger?

Read it again (emphasis added):

...A temporary transfer of possession of a firearm if such transfer is necessary to prevent imminent death or great bodily harm to the person to whom the firearm is transferred...

So you can loan someone a gun if he needs it to defend himself from an imminent danger. That's not the same thing as taking a gun from someone who might be a danger to himself or others.

 

[Old Bill Dibble]

If I live in the house with a demented person and they have guns than I think it would be fair to say that I am at high risk for harm.

Proving imminent might be tough.

 

[zukiphile]

The ordinary american social pattern involves elderly parents living not with their children and grandchildren, but on their own. Often their adult children will check in with them and discover problems pertaining to driving, diet and housekeeping.

When I see these problems come to a head, it often involves an adult child who has plenty of other duties to job and family who now also sees a need to intervene, and a failing parent who is desperately holding on to a sense of independence. The adult child often describes the failing parent as gratuitously combative, and the parent describes the adult child as a greedy busybody.

This thread is about firearms possession, but the really difficult and common issue is the driving parent. The car is a symbol of autonomy, and losing it signals a status of less than full cultural citizenship at least as much as losing firearms or the right to vote would. Want a tough conversation? Explain to an old man after a handful of mysterious fender-benders that you are taking his keys before he kills someone.

There are few resolutions to these problems that leave all parties happy.

 

[Tom Servo]

dad's guns got, quietly, stored at my house and stayed there after he passed. Seemed like a no trainer.

The problem with these UBC laws is that they regulate possession, not ownership. In this case, the guns would be transferred to the possession of the person taking them without a background check, and that would be a violation.