Wednesday, August 30, 2017
Article on You Can Have My Gun When You Pry It from My Hands Which Are Incapable of Managing My Own Estate by Reason of Advanced Age, Physical Incapacity, or Mental Weakness: Firearms Rights of Wards in Mississippi Guardianships and Conservatorships
Marlin Marcellus Stewart, III recently published an Article entitled, You Can Have My Gun When You Pry It from My Hands Which Are Incapable of Managing My Own Estate by Reason of Advanced Age, Physical Incapacity, or Mental Weakness: Firearms Rights of Wards in Mississippi Guardianships and Conservatorships, 35 Miss. C. L. Rev. 495 (2017). Provided below is an abstract of the Article:
The laws of the State of Mississippi allow the state's chancery courts to appoint a fiduciary for someone who is unable to manage his own affairs. As detailed below, while the appointment of a fiduciary may result in the abridgement of certain civil rights of that individual, a fiduciary appointment has previously had no statutory impact on the firearms rights of Mississippians. Recent changes in state law, however, may have changed that outcome by creating a correlation between the abridgment of a veteran's firearms rights subsequent to the appointment of a fiduciary and the firearms rights of a Mississippian in a guardianship or conservatorship. This Article will examine whether, and to what extent, Mississippi's citizens who have a fiduciary appointed to manage their personal affairs can potentially lose their right to purchase or possess12 firearms, while using as an illustrative example the impact that the assignment of a fiduciary has on the ownership rights of a veteran receiving disability compensation benefits from the VA.
The first section will provide historical background on the VA disability compensation benefit and will incorporate a brief discussion of the mental health issues facing veterans returning from combat operations in Iraq and Afghanistan, coupled with an overview of the process and purported authority by which the aforementioned veterans are being reported to the NICS. The second section will provide a brief overview of the rights Mississippians enjoy with regard to firearms. The third section will explain the range of actions, including the appointment of a fiduciary through a guardianship or conservatorship, available through the Mississippi court system to protect those who are no longer able to care for themselves. The penultimate section will analyze recent applicable law and regulations to establish that, under the current scheme, Mississippians who have guardians or conservators appointed for them under certain circumstances will soon be in similar situations to the veterans who have had fiduciaries appointed through the VA. The final section will demonstrate that although a similar reporting scheme should be in place for some Mississippians in a conservatorship or guardianship, one does not yet exist and the section will additionally propose a potential planning avenue for elder law attorneys whose clients may soon be entering a conservatorship.