A Legal Update on Medical Marijuana

Attorney General & Congress Battle Over Medical Marijuana

Legal Update on Medical MarijuanaBeing able to adequately manage the short-term, long-term, and late-term side effects of cancer treatment is crucial for patients and survivors. One method of side effect management that is on the rise, is the use of medical marijuana, which has been shown to alleviate side effects such as pain, nausea, decreased appetite, and seizures.

We have discussed medical marijuana in previous blog posts, including the conflict between federal and state laws.  While the use of medical marijuana is still illegal under federal law, an increasing number of states have passed laws that not only legalize the use of medical marijuana, but the recreational use as well.

Despite this legal conflict, the federal government previously opted to let states pass laws in this area and not to prosecute individuals who are following those state laws. However, in January, the Attorney General, Jeff Sessions, who has historically opposed the use of medical marijuana, announced that he was removing the barrier that prevented the federal government with interfering in state medical marijuana laws. There was a concern that this would allow federal prosecutors to go over individuals using medical marijuana.

In response, on March 23, 2018, Congress added language to the omnibus budget bill that forbids the Department of Justice to use any funds to prevent states from implementing their own medical marijuana laws.

While we wait to see how these legal battles may impact the cancer community specifically, it is important to note that there are still some critical issues to consider when deciding whether to use medical marijuana, such as:

  1. Poor regulation of the quality, dosage, and potential contamination of medical marijuana products
  2. Limited current research on the short and long-term effects of the use of medical marijuana and how it might interact with cancer treatments
  3. Employment rights related to the use of medical marijuana

To help you navigate the use of medical marijuana, Triage Cancer has released a new Quick Guide to Medical Marijuana.

Triage Cancer will continue to share information about medical marijuana as the legal and medical landscape changes, so stay tuned.





National Healthcare Decisions Day: Saturday, 4/16!

National Healthcare Decisions Day, or NHDD, is a national call to action, to build awareness and spark conversation on the importance of advance care planning. The theme for 2016 is “It Always Seems Too Early, Until It’s Too Late.”

The main goals of NHDD are to make the topic of advanced care planning something more frequently discussed and to open the lines of communication on a topic that can sometimes be difficult to talk about.

There are so many reasons why it is important to think about and take steps to complete advanced care planning, but in particular, it allows you to:

  • Clearly document your wishes
  • Avoid burdening your loved ones with having to guess what you would want
  • Avoid conflict among your loved ones

NHDD focuses on documenting your decisions related to how you would want to receive health care, in case you are unable to make health care decisions for yourself.  The most effective way to document your decisions is through an advance health care directive.

An advance health care directive is a legal document that is specific to your state.  Click here to download your state’s advance health care directive form.

There are typically 3 parts to an advanced health care directive form.

Part 1: A Health Care Proxy

A health care proxy is someone you choose to make health care decisions for you if you are unable to make them for yourself.  For example, you may choose your spouse or your sibling to make those decisions for you.

Part 2: A Living Will

A living will focuses on identifying specific types of health care you do or do not want to receive.

Part 3: Organ Donation or Anatomical Gifts

This section allows you to make general or specific decisions about organ donation or anatomical gifts.  For example, if you would like to donate your body for research.

Once you have an advance health care directive completed, you should share your decisions with your loved ones and your health care team, so that they know your wishes.

The best time to complete an advance directive is now.  We never know what tomorrow will bring and it’s so important to be prepared.

Medical decision making is just one part of the estate planning process.  You may also want to consider completing other documents, such as a will, trust, or power of attorney for financial affairs. For more information about estate planning, visit www.lawhelp.org, and then pick your state.

Get involved in National Healthcare Decisions Day this year!

  • Learn more about the steps you may choose to put in place for your own medical decisions or talk with family members and loved ones.
  • If you are a health professional or advocate, there are valuable resources and ideas provided by NHDD.org here!

On Saturday, April 16, 2016, be a part of the movement to demystify healthcare decision-making!

Medical Decision Making – Plan Ahead!

by Michelle Shagenov, Esq.

senior couple talking

In November, I discussed basic estate planning tips and estate planning as the key to retaining control of YOUR affairs, for as long as you are able to do so. I also noted that developing an estate plan is an individualized process that depends on your needs, values, and beliefs. I stressed the importance of self-reflection to help you formulate an estate plan best suited to your and your family’s needs.

Self-reflection is an essential component of advance planning for health emergencies. By taking the time to think about your lifestyle and beliefs, you can decide what kind of health care and medical intervention you would like in a health emergency.  Once you are clear about your wishes regarding health care and end-of-life treatment, you can communicate them to your loved ones through a health care directive.  Health care directives also allow you to appoint a family member or a friend who will respect and follow your wishes if you are unable to do so yourself.

Health care directives can help you avoid heated and emotional family conflicts at a hospital bedside like those in the Terri Schiavo case as well as lengthy and costly guardianship proceedings where the court appoints a third-party to make these very personal decisions on your behalf!

Practical tips: Keep your health care directives in a safe and easily accessible place. Keep spare copies. Provide your loved ones with copies. Your family members (or friends) cannot act on your behalf in a medical emergency without your health care directives in their possession! Beware of this common catch-22: You do NOT have easy access to a health care directive if it is in a hospital record because your agent cannot access your medical records without a health care proxy!

The three most commonly used health care directives are:

Do Not Resuscitate Order (DNR):  Advises health care providers that you do not wish to receive cardiopulmonary resuscitation (CPR) if your heart stops beating or you stop breathing. The DNR does not address other health care decisions or end-of-life care. Also, the DNR cannot be used to name a health care agent to act on your behalf.

Living Will:  Communicates your wishes regarding health care decisions, particularly end-of-life treatment. For instance, you may specify whether you wish to receive artificial nutrition and hydration. You may also advise your loved ones regarding organ donation and funeral arrangements.  Your wishes, as indicated in your living will, apply only if you suffer an incurable or irreversible mental or physical condition with no reasonable expectation of recovery, such as a terminal illness, permanently unconscious, or conscious with irreversible brain damage.  As a living will is not legally binding in all states, it is best used in combination with a health care proxy.

Health Care Proxy: Appoints an agent to make decisions about your health care and end-of-life care if you are no longer able to do so.  Only one person may act as an agent at a time. The rationale is that doctors want to communicate with one decision maker, not a committee of conflicting family members.

It is strongly recommended that you discuss your wishes with your agent, especially regarding end-of-life care. Being open and honest about your wishes with your loved ones minimizes conflict during a stressful and difficult time and ensures that your wishes will be respected. In addition, in some states, the agent cannot make decisions about end-of-life care unless those decisions are stated explicitly in the health care proxy form or the health care proxy form states that the agent is aware of the end –of-life care wishes of the patient.

You can name any individual over the age of 18 but should choose only a trustworthy and capable individual to avoid future conflicts among your family members. While health care directives are not easily abused, you should give careful thought and consideration to your choice of agent care for all of your estate planning documents. Other estate planning documents, such as the durable power of attorney, grant an agent much more authority and discretion and can be easily abused without careful thought, consideration, and planning.

Next month, I will discuss how the durable power of attorney, when used appropriately, can provide continuity in financial and estate planning, even in the event of incapacity.

Michelle Shagenov is a NY and NJ licensed attorney with a solo New York City based practice, focused on wills, trusts, estates, and guardianship.  For more information, please contact Michelle Shagenov by email or by calling (347) 618-1454.