My comments as a cannabis attorney to DHSS on the patient and caregiver rules regarding medical cannabis in Missouri:
I am a probate, estate, and trust litigation attorney who is also assisting clients in medical cannabis law. In reading the below draft rule, I have some comments that I think require the department’s input, and have made those comments in red below in the draft rule for context.
(9) Disposal of Qualifying Patient Medical Marijuana.
(A) In any case where a qualifying patient is no longer entitled to medical marijuana under any provision of state law or is deceased or becomes incapacitated such that they cannot renew their patient or cultivation card on their own, any excess medical marijuana or marijuana plants in the possession of the qualifying patient or the patient’s primary caregiver or discovered by a third party shall be turned over to a licensed dispensary for disposal within thirty (30) days of the event that makes the qualifying patient ineligible.
Turned over – does that mean donated, sold, gifted, etc? For estate purposes, the medical marijuana would be considered an asset of the Estate on probate inventory forms and would have to be reported to the court and assigned a value. For example, under miscellaneous personal property, sometimes we list crops or livestock. In the case of medical cannabis, we would list the number of immature plants (perhaps the strain) and the value of those plants; the number of mature plants and the weight of flower to be harvested from those plants and a value. If those plants are being transferred to a dispensary, then it is unclear whether creditors could look at that inventory – which is a snapshot of all the property owned at time of death – and make a claim against the estate and argue that those assets should be liquidated to pay the debts. A common scenario is actually Missouri HealthNet, which if the decedent is on Medicaid at time of death, HealthNet MUST be notified if an estate is opened and given the opportunity to inform whether it plans to file an estate recovery claim. Estate recovery is non-negotiable, so all assets have to be used to pay back the debt to the State. This is just one example. So since we have a large aging demographic and probate filings are increasing statewide, clarity in this matter would be helpful. If the product cannot be sold and is to be destroyed, then that should be expressly stated so that probate practitioners can point to some legal authority for not including this in inventories and assigning a market value as is customarily required.
1. Before delivering the excess medical marijuana to a dispensary, the individual in possession of the excess medical marijuana must contact the department, and the department will coordinate delivery arrangements between the individual and a dispensary;
In estates, only fiduciaries are permitted to control the property of a decedent; so a duly appointed personal representative of the estate (whether executor under a will or administrator of an intestate estate); a small estate affiant (once certification is issued by probate); or a refusal of letters to a spouse or creditor. Above, under (A), it specifies 30 days, but often, someone with legal authority over decedent’s property is not appointed by the court until months later. A probate estate must be opened within 1 year of date of death, while a small estate can be opened for estate under $40,000 at any time after death, even years later. If there are significant creditors, families often wait out the 1 year statute and do a determination of heirship to avoid creditors. Powers of attorney statutes do not currently allow for post-mortem authority except for authorizing autopsies and making final arrangements. Perhaps this rule should contemplate an exception allowing a POA document to include disposition of medical cannabis by an agent under a POA within 30 days of death, or perhaps the patient application would have the patient agree to disposal within 30 days of death by DHSS (sort of like a limited POA) since it could be months before a fiduciary is appointed by probate. The only fiduciary that might be covered is a trustee of a trust; most trusts take all personal property and household goods and put them immediately into a trust once the trust is signed, meaning everything in a house belongs in trust. If that is the case, and cannabis is in the home, it becomes property of the trustee to manage immediately upon death. Additionally, transfer on death assignments could be made to the Department and included as part of the application for a patient card.
2. The individual in possession of excess medical marijuana shall receive from the department written, temporary authorization to transport medical marijuana, which shall include details regarding the delivery arrangements approved by the department.
Again, this needs to be a fiduciary or an exception to the current POA post-mortem authority laws or some kind of transfer or assignment on death should be contemplated.
(B) The possession and transportation of medical marijuana under this section shall not subject the possessor to arrest, criminal or civil liability, or sanctions under Missouri law, provided that the possessor produces on demand to the appropriate authority a copy of the temporary authorization for transport or evidence of communication with the department regarding delivery arrangements.
This is great, but doesn’t protect a fiduciary of an estate, trustee of a trust, etc. from liability to the heirs if the heirs or beneficiaries of the decedent’s estate or creditors expect the cannabis to be classified as property with an assigned monetary value to be liquidated and distributed. Fiduciaries might not be willing to accept nomination and appointment in these estates if they believe they will incur liability.
The other potential issue I see is if the patient becomes incapacitated. They might need a guardian to be appointed by probate, which could also take a few months, and in the meantime, the 30 days above is running. The guardian cannot act without court order, and there again, an inventory needs to be done. How can someone apply to be a caregiver without the patient’s consent until a guardian is appointed? An emergency guardianship might solve the problem, where a temporary guardian is appointed by the court for this purpose, but these might clog the probate courts. Yet again, an immediate transfer to the Department on death or incapacity might solve this issue (like assigning the DHSS a limited power of appointment over medical cannabis in the patient’s possession). The department could appoint a special fiduciary to handle these transfers in the interim until the probate court can resolve other issues.
Ideally, the forgoing section would address the foregoing issues. If my office can be of assistance in helping work through post-mortem transfer issues, please let me know.