Federal "Elder Abuse Victims Act" Reintroduced

On February 11, 2009, the U.S. House of Representatives passed a bill reintroduced on January 9, 2009, by Rep Joe Sestak and co-sponsors, entitled the Elder Abuse Victims Act of 2009 (House Resolution 448), and sent it to the U.S. Senate for consideration.

The text of the legislation is found here, and a summary of its provisions is found here.

The summary of H.R. 448 states its purpose:

To protect seniors in the United States from elder abuse by establishing specialized elder abuse prosecution and research programs and activities to aid victims of elder abuse, to provide training to prosecutors and other law enforcement related to elder abuse prevention and protection, to establish programs that provide for emergency crisis response teams to combat elder abuse, and for other purposes.

Health Industry Washington Watch, in its posting, "House Passes Elder Abuse Victims Act" (02/12/09), itemized the directives of H.R. 448:

The legislation would direct the Attorney General to:

1. Study and report to Congress on state laws and practices relating to elder abuse, neglect, and exploitation (including laws requiring reporting of nursing home deaths);
2. Develop a long-term plan for elder justice programs and activities;
3. Award grants to support and train state and local prosecutors, courts, and law enforcement personnel handling elder justice-related matters; and
4. Establish the Elder Serve Victim grant program to facilitate and coordinate programs to provide emergency services to victims of elder abuse.

An article entitled "House passes Elder Abuse Victims Act" (02/14/09) published in the Delaware County Daily Times (PA) noted that "[f]unds for training law enforcement officials on how to respond to elder abuse cases and nurse-investigators that are experts in identifying elder abuse are also in the bill."

According to a press release entitled "House Passes Elder Abuse Victims Act Congressman Sestak Introduced Bill to Protect our Senior Citizens" issued on February 12, 2009 by the bill's prime sponsor, Rep. Joe Sestak, "H.R. 448 was the first bill on elder abuse to pass the House in 17 years.

Congressman Sestak originally introduced the Elder Abuse Victims Act in the 110th session. It is now the first bill to pass the House of Representatives in 17 years on elder abuse.

The legislation focuses on protecting seniors from abuse by evaluating state and federal programs, advocacy grants, and prosecution of elder abuse cases.

Notably, it funds elder abuse prosecutorial departments at the local, state and federal levels; trains law enforcement officials on appropriate action in these cases; funds nurse-investigators who are experts in identifying elder abuse; and requires the Attorney General to conduct a study evaluating state programs and practices designed to protect seniors from abuse, neglect, and exploitation. * * *

This bill is the successor to H.R. 5352, the Elder Abuse Victims Act of 2008, which was introduced into the 110th Congress, but which failed to become law. See EE&F Law Blog posting Federal "Elder Justice" Acts Appear Elusive (09/12/08).

A Republican Party website, in its Legislative Digest entry regarding the Elder Abuse Victims Act of 2009 provided further background & summaries about H.R. 448, its predecessor legislation, and projected costs of its proposed programs.

Given its quick reintroduction into the 111th Congress, and its even quicker adoption by the House, the prospects for H.R. 448 seem far brighter than its predecessor.

“I believe that this legislation will advance the way we prosecute perpetrators of elder abuse and protect its vulnerable victims.
It will require a comprehensive review and study of state elder justice systems, including definitions of abuse, and it will do more to improve the prosecution and enforcement of elder justice cases.”

-- Rep. Joe Sestak (D-PA)

"How Attorneys Can Address Abuse of the Elderly"

On Thursday, February 12, 2009, the Dauphin County (PA) Bar Association, through its Estate Planning & Probate Section, will host, for the Dauphin County Register of Wills, a "Breakfast with the Register" continuing legal education session for attorneys.

The DCBA website notes the upcoming CLE session, as follows:

Thursday, February 12, 2009 -- "Breakfast With The Register"

Time: 7:30 a.m. Breakfast, 8:15 - 9:15 a.m. Presentation

Topic: "Update for Practitioners on Practice Before the Orphans' Court Division and in the Register of Wills Office," featuring Hon. Todd A. Hoover, Sandra C. Snyder, Barbara A. Lundgren, Thomas P. Gacki and Neil E. Hendershot, Moderator.

Location: Radisson Penn Harris Hotel & Convention Center [located at 1150 Camp Hill Bypass, Camp Hill, PA 17011].

Such sessions held for the practicing bar in Dauphin County, PA were well-attended in the past. See: PA EE&F Law Blog posting "Probate Bar Breakfast" in Central PA (11/08/06).

As in the past, the intended audience includes:

• Lawyers who practice before the Dauphin County (PA) Register of Wills Office and the Orphans' Court Division of the Court of Common Pleas of Dauphin County, PA;
• Paralegals functioning in this practice; and
• Law students from Widener University School of Law (Harrisburg Campus) and Penn State - Dickinson School of Law (Carlisle Campus), who study this area of law.

The participants are the same as in the past:

• Todd A. Hoover is the Dauphin County Court of Common Pleas Judge assigned to the Orphans' Court Division.

• Sandra C. Snyder is the elected Register of Wills of Dauphin County and the Clerk of the Orphans' Court Division. She also serves as the 2nd Vice-President of the Registers of Wills and Clerks of Orphans' Court Association of Pennsylvania.

• Thomas P. Gacki, Esq. serves as the Solicitor for the Register of Wills Office.

• Barbara A. Lundgren serves as the Orphan’s Court Assistant Administrator.

Originally, I was proposed to serve as moderator for the panel. But, given the interest in elder abuse, Judge Hoover requested that I reprise my presentation given in November 2008 on that topic to the York County Bar Association at its "Breakfast with the Register" event. See: PA EE&F Law Blog posting "Financial Elder Abuse" Session In York (11/06/08).

Thus, for one hour (8:15 - 9:15 am), I will present a 77-slide presentation (reproduced in a handout) entitled "The Aging Process and Elder Abuse: How Attorneys Can Address Abuse of the Elderly."

Pre-registration for the session already rose to 171 attendees.

There is no fee for the session, and a breakfast buffet will be provided.

Reservations can be made by fax (717-234-4582), by mail to DCBA, 213 N. Front Street, Harrisburg, PA 17101, or by email to: Bridgette@dcba-pa.org.

Act fast, however. Pre-registration is requested.

For pre-registered attorneys, the program will provide one hour of substantive Continuing Legal Education credit.

The session is graciously underwritten by PNC Wealth Management, an affiliate of PNC Financial Services Group, Inc., based in Pittsburgh, PA, with offices throughout Central Pennsylvania. Representatives of PNC will be present with other attendees.

What is a "Gun Trust"?

Joshua G. Prince authored an article entitled The New Trust on the Block -- the "Gun Trust." I am pleased to post his simplified explanation of a concept foreign to many professionals and consumers.

Josh is now a third-year law student at Widener University School of Law (Harrisburg Campus). He was the author of three prior articles, which I edited and posted on this Blog in 2007 about the handling, transferring, and holding of weapons.

Based upon those article, he was a co-presenter with me in 2008 at three sessions for lawyers about "Guns in Estates & Trusts" held at the bar associations of Cumberland County, Dauphin County, and Berks County, PA. See: PA EE&F Law Blog posts DCBA Gun Session with a Heller of a Difference (07/07/08), and "Guns in Estates & Trusts" Seminar (04/25/08), and the many links included.

Josh can be reached at: joshua@princelaw.com. Feel free to contact him with any questions.

The New Trust on the Block -- the "Gun Trust"

Copyright © 2009 by Joshua G. Prince

As if estate planning was not already complex and all-encompassing, there is a new craze sweeping firearm enthusiasts throughout Pennsylvania and the rest of the United States. It is the Gun Trust. However, most attorneys are bewildered by this new trust and are asking: What is it? What is its purpose? What benefit does it give?

What is a "Gun Trust"?

In essence, a Gun Trust is a language specific trust that only holds Machineguns, Suppressors, Short-Barreled Rifles, Short-Barreled Shotguns, Destructive Devices, and/or Any Other Weapons (referred to as Title II weapons under the National Firearms Act¹) for the benefit of a beneficiary, while giving possessory and use rights to the trustee(s).

What is the Purpose of a "Gun Trust"?

To understand the purpose of a Gun Trust, one must understand the National Firearms Act (NFA of 1934)², the Gun Control Act (GCA of 1968)³, and the Firearms Owners Protection Act (FOPA of 1986).⁴ Specifically, under these laws, an individual must register any Machinegun, Suppressors, Short-Barreled Rifle (SBR), Short-Barreled Shotgun (SBS), Destructive Device (DD), or Any Other Weapon (AOW).

The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) currently allows the registration of NFA firearms, by an “individual”, which is defined as: “A partnership, company, association, trust, estate, or corporation, as well as a natural person.”⁵

An individual looking to transfer/register a NFA firearm needs to file an application (BATFE Form 1 for making a NFA firearm, and BATFE Form 4 for transferring a NFA firearm⁶), in duplicate, provide a registration tax⁷, two sets of fingerprints, and two photographs.⁸ Furthermore, the individual must obtain the signature of a Chief Law Enforcement Officer (CLEO). While the application requires that the individual person obtain a CLEO signature, nothing mandates that a CLEO must sign an application for a NFA firearm, even if the applicant would pass the BATFE's rigorous background check.⁹

With many CLEOs refusing to sign for NFA firearms, even though both federal and state law allows for ownership, firearm enthusiasts sought different ways to acquire NFA firearms. In looking to the BATFE regulations, many saw corporations and trusts as viable alternatives, since they do not require a CLEO signature.¹⁰ With corporations requiring hefty startup costs, annual tax returns, and a lack of privacy, many began to investigate the trust alternative.¹¹

And so was born the Gun Trust. For a trust, the application must be submitted in duplicate, with the appropriate tax fee¹², but the trust is not required to submit fingerprints or photographs.¹³ More importantly, as stated above, a trust does not require a CLEO signature.

What benefit does a "Gun Trust" Offer?¹⁴

One of the highlights of a Gun Trust is the ability to acquire NFA firearms without a CLEO signature. However, there are numerous other benefits that flow from a gun trust. For instance, with a properly drafted gun trust, the trustee(s) will have the ability to possess and use the firearms, without violating their obligations as trustees and fiduciaries.

Another reason that many families opt for a Gun Trust is the ability for multiple people to use a weapon. When an NFA firearm is transferred or registered to an individual, only that individual may possess and use that NFA firearm. However, with a gun trust, any trustee may possess the firearm. Of course, for trustees to able to use the firearm, the trust must be properly drafted. Hence, where a family sets up a gun trust, all family members over the age of 18 could be designated trustees; thus enabling them to have possession of the firearm.

Another reason for a gun trust is the ability to draft it such that the trust will continue to hold the firearms until the beneficiary comes of age¹⁵ or until the trustee determines that the beneficiary is of such maturity that he/she can assume the responsibilities of ownership.

Also, in Pennsylvania, there is the possibility of a perpetual trust, since the Rule Against Perpetuities has been abolished. Thus, an individual who is concerned about future statutory changes, can form a gun trust that will provide these NFA firearms to generations to come without future transfers.

In states that have not done away with the rule against perpetuities or for short-term gun trusts, the BATFE allows a tax-free transfer, upon the death of the settlor/grantor, to the beneficiary, so long as, the beneficiary is a familial relation to the settlor/grantor.

Conclusion

These are but a few of the reasons that firearm enthusiasts are opting for gun trusts. However, a gun trust should not be drafted without sufficient knowledge of the NFA and BATFE's rapidly changing (sometimes daily) decisions regarding trust applications. While it is likely that the BATFE will institute a tighter regulations regarding gun trusts and gun corporations in the future, a gun trust could continue to provide substantial benefits over personal transfer/registration.

Maybe it will even be referenced in a law school textbook someday.¹⁶

* * *

Footnotes:

1 Title I weapons under the National Firearms Act, as amended, are the typical firearms that the public is accustom to seeing at the range or while hunting. These include handguns, bolt action rifles, and semi-automatic rifles.

2 26 U.S.C. § 5801 et seq.; 73 P. L. No. 474; 48 Stat. 1236.

3 90 P. L. No. 618; 82 Stat. 1213. (amending the National Firearms Act).

4 18 U.S.C. § 921 et seq.; 99 P. L. No. 308; 100 Stat. 449. (amending the National Firearms Act). FOPA prohibits the making or registering of any new machineguns. The author has posted online a copy of the entire NFA with amendments (PDF).

5 27 C.F.R. 479.11 (2003)

6 Electronic versions of these forms are posted online. Click on the desired form, and the page will change to a new page where you can input information. When submitted using the button in the lower left-hand corner, the form will be automatically filled in with that information. To see what a blank form looks like, just scroll to the bottom and hit "submit".

7 The registration tax will either be $5 (for Any Other Weapons) or $200 for all other NFA firearms.

8 26 U.S.C. § 5811; 26 U.S.C. § 5812.

9 Lomont v. O'Neill, 285 F.3d 9, 15 (D.C. Cir. 2002). Although a CLEO is not required to sign, further litigation is expected. See, Stephen P. Halbrook, Firearms Law Deskbook, 537-541 (Thomson/West, 2007).

10 BATFE, ATF National Firearms Act Handbook, 59 (June 2007) [See graphic above].

11 Another detriment to using a corporation is that many states require annual fees or levy stock assessments. Pennsylvania is not currently among those states. The author previously posted a further comparison of different entity options for NFA firearm ownership.

12 The registration tax will either be $5 (for Any Other Weapons) or $200 for all other NFA firearms.

13 26 U.S.C. § 5812.

14 The author previously posted a full discussion of gun trust issues and considerations.

15 To own or possess a NFA firearm, the individual must be at least 18 years of age.

16 Editors Note: Maybe, Josh; but "gun trusts" likely will not be promoted in the ATF's National Firearms Act Handbook.

Believing, and Playing College Football at 59

On Sunday, February 1, 2009, on his Hour of Power religious broadcast, Rev. Robert H. Schuller interviewed Mike Flynt, the author of "The Senior" (207 pages; Oct, 2008), which conveys the message: "It's Never Too Late to Tackle Your Dreams!"

Mike Flynt was swapping stories with some old football buddies when he brought up the biggest regret of his life: getting kicked off the college team before his senior year.

So, one of his pals said, "Why not do something about it?"

Most 59-year-olds would have laughed. Flynt's only concern was his eligibility.

He not only returned to college football, but actually made the team at his alma mater -- Sul Ross State, an NCAA division III school [and a member of the Texas State University System].

His remarkable story begins with a tough upbringing by a violent father who trained him to fight at every opportunity. His fighting habit took him in and out of jail several times, until a faith conversion turned his life around on the very day he was contemplating suicide.

Mike Flynt has much to offer others, not only through his story, but through his belief that it's never too late for God to heal your heart and fulfill your dreams. [Links added.]

Wikipedia's entry for Mike Flynt describes his difficult, even wacky, challenge in playing college football a second time around:

Mike Flynt is a linebacker for Division III Sul Ross State University in Alpine, Texas and wears the number 49.

Flynt is a strength coach by trade and was a conditioning coach at Nebraska, Oregon and Texas A&M. He is the inventor of the Powerbase Fitness exercise equipment. * * *

Flynt has given new meaning to being a college senior. He is a grandfather and is retired. His youngest child is a freshman at the University of Tennessee. Two of his children are older than any of his teammates.He is eight years older than his own coach, Steve Wright.

He played his last collegiate game for the Sul Ross Lobos in 1970. In 1971, he was thrown out of the university. One of his original college coaches was Jerry Larned, and he has counseled him at the start of his comeback.

Despite the fact that he is two generations older than his teammates, Flynt, a career strength and conditioning coach, told Sports Illustrated that he can still do some things in the weightroom that the other players can't. Flynt says he can still do 25 consecutive pull-ups, for example. * * *

Once he plays, he will become the second oldest man to play in an NCAA game. Neither the NCAA or NAIA keeps age as a statistic, but research hasn't turned up anyone older than their mid-40s playing NCAA Football.

On August 23, 2007, ESPN posted an article entitled "Flynt, 59, making comeback with Sul Ross State University" by Mike Golic & John Siebel.

Finding out he was [still eligible to play football], Flynt returned to Sul Ross State this month, 37 years after he left and six years before he goes on Medicare.

His comeback peaked Wednesday with the coach saying he's made the Division III team's roster. He could be in action as soon as Sept. 1 [2007]. * * *

"I think it was Carl Yastrzemski who used to say, 'How old would you be if you didn't know how old you were?' I'd be in my late 20s or early 30s, because that's how I feel," said Flynt, who has made a living out of physical fitness.

"That's been my approach to this whole thing. I feel that good. I'm just going to find out if I can perform and make a contribution to the team." * * *

Flynt's life was supposed to be slowing down this fall. With his youngest child starting at the University of Tennessee, he and Eileen, his wife of 35 years, are planning to take advantage of being empty-nesters for the first time.

Instead, they've moved to this remote patch of West Texas so Flynt can mend an old wound and, he hopes, inspire others. * * *

The article reported a side-effect of his effort to master a nearly-impossible challenge: "[H]e laughed about the reality that fellow Baby Boomers are getting the most out of his comeback."

"People are kind of in awe. They keep comparing me to themselves and where they are physically," he said.

"If I can help anyone out by what I'm doing, then it's all worth it."

On September 15, 2007, Sporting News reported in "'Senior' LB suits up, but 59-year-old Mike Flynt doesn't play" that, after the team's third game, "[h]is first hit, however, will have to wait another week."

The 59-year-old linebacker remained on the sideline throughout his team's 55-14 loss to Division III powerhouse Mary Hardin-Baylor.

Coach Steve Wright decided to play it safe in hopes of keeping Flynt healthy for the rest of the season, especially the home opener next weekend. Leg and shoulder problems kept Flynt from even traveling to the first two games.

He made this trip, and so did his wife and about 50 former teammates and other admirers, all hoping to see "The Senior" mix it up with kids one-third his age.

They weren't the only ones disappointed. Midway through the fourth quarter, the Mary Hardin-Baylor band chanted "We want Mike Flynt!" followed by "49! 49!" (his jersey number) and finally, "Put Mike in!"

Flynt's fan club, who've dubbed themselves the "Sul Ross Baby Boomers" and wear buttons with a picture of him in uniform, joined the chants. Later, they started their own, merely shouting his last name. * * * [Links added.]

Then, as a team member listed on the roster, he played in a game against Texas Lutheran University.

Jaime Aron reported on October 13, 2007, in "59-Year-Old Linebacker Returns to Field Posted" that Flynt first played at left offensive end on a point-after-touchdown play:

To the shreiking delight of his wife, three kids, grandson and a legion of new fans, 59-year-old Mike Flynt returned to college football action Saturday night.

His Sul Ross State teammates marched for a touchdown on their opening drive against Texas Lutheran and Flynt went in at left end on the extra-point unit. He sealed his block as the kick went through, marking his first game action in 37 years.

He remained a fixture at that spot on extra points and field goals. His first block wasn't much, but it didn't matter.

The play culminated a comeback that began almost as a dare at a reunion this summer, then was delayed by the kind of lingering aches and pains that slow most card-carrying AARP members. * * *

Texas Monthly noticed the older senior's game-play, posting a Mike Flynt multimedia feature in March 2008.

After the season, Mike wrote his book, The Senior (co-authored with a professional writer), which is available online and in stores. Portions of the book are made available online by Google Books.

You can read the text of that brief interview of Mike Flynt with Rev. Schuller on the website of the Hour of Power.

The interview concluded with Flynt's personal statement of faith.

MF: I think that people need to believe in themselves and not be afraid of failure.

I think our young people today are taught to be normal and not to step out and try things and they need understand that failure is not who you are.

Failure is just something that happens to you. But you have to step out and try. You have to believe in yourself.

You have to try and you have to trust in God.

RHS: That’s what your faith does for you.

MF: Yes sir.

* * *

"I had to try."

-- Mike Flynt, in The Senior (2008)