Q: Someone recently asked me if I could be their primary caregiver, but I’m concerned about my own liabilities if I handle marijuana without a recommendation myself. What do I need to do to protect myself if I decide to become a caregiver?
A: The Compassionate Use Act, as originally enacted, recognizes two categories of persons who enjoy the protections against California criminal sanctions for cultivation, possession and transportation of medical marijuana: patients and primary caregivers. Pursuant to California Health and Safety Code §11362.5, a person qualifies as a patient eligible to use medical marijuana if they obtain recommendation or approval from a licensed physician. A primary caregiver is defined as someone “who has consistently assumed responsibility for the housing, health, or safety” of a patient with a recommendation to use medical marijuana under subsection (e). In short, a primary caregiver in California is a person who may not be eligible to use marijuana themselves, but instead cares for a patient, and is also able to cultivate and transport marijuana for the patient.
The interpretation of subsection (e) by the California courts is critical knowledge for anyone to have who either purports to act as or intends to act as a primary caregiver for a patient. The California Supreme Court in People v. Mentch (2008) 45 Cal.4th 274 drew a comprehensive interpretation of the primary caregiver definition, saying:
From these aspects, as we shall explain, we conclude a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.
The first requirement means that a caregiver must consistently assume responsibility for the patient’s “housing, health, or safety, or some combination of the three”. The second requirement means the caregiver must have had a relationship involving the care of the patient independent of the use of marijuana; in other words, the caregiver must provide for the patient independently, even if the caregiver did not administer any marijuana to the patient. The third requirement means a caregiver relationship must arise prior to or contemporaneously with “the onset of assistance in the administration of marijuana”. Some common examples of a primary caregiver could be in-home care nurses or physicians, or medical personnel at convalescent homes or treatment centers, given they meet the requirements set forth in Mentch. Though not mentioned in Mentch as a requirement, the Medical Marijuana Plan purports to place a minimum age requirement of eighteen (18) on primary caregivers, unless they are the parents or guardians of a child. California Health and Safety Code §11362.7(e).
If a person qualifies as a caregiver, they are entitled to the same immunity from criminal charges for cultivation, transport and possession of marijuana as are patients under the Compassionate Use Act. Further, under the Medical Marijuana Plan, primary caregivers may even apply for a identification card which gives them the same immunity from arrest as the identification card does for patients who obtain one. California Health and Safety Code §11362.71(e). Finally, pursuant to 11362.795(c), primary caregivers may receive a reasonable compensation for their services in addition to reimbursement for costs, and such payment alone cannot subject the caregiver to criminal liability for transporting marijuana and transportation for sale under Section 11359 and 11360.
California State law per se does not require any specific documentation for a person to claim primary caregiver status, but some county codes or city ordinances may place stricter requirements. For example, San Mateo County currently requires primary caregivers to keep a register of patients they tend to, available to the Sheriff upon request. San Mateo County Ordinance 5.148.030. Other cities and counties may have similar requirements. However, many primary caregivers maintain basic documentation in order to ensure compliance with state and county laws, such as authorizations, collective agreements and ledgers.
If you or someone you know is interested in being a primary caregiver for another, or already acts as one and wants to know more about the rights of caregivers under state law, contact your local law office for answers to these questions.
Beck Law P.C. is located in Santa Rosa and offers an entire scope of Medical Marijuana related services to clients in Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, Kelseyville and throughout Sonoma, Mendocino and Lake County.
Beck Law P.C. can furnish the experience and knowledge to help guide you through the complexities of California Medical Marijuana law.
Making an appointment to meet with us is an investment in exploring what options may or may not apply to your particular situation. Your visit to the Beck Law Offices is confidential, as is the information discussed. You can contact our office at 707-576-7175 or contact us online.
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