General Legal

 

Conundrums of Legalized Marijuana

 

Following the trend of Colorado and Washington, recreational use of marijuana is now legal in California (with some caveats). This legalization, as well as the remaining states allowing marijuana for medical use, may now create a real test of sanity in the legal system.

There are a myriad of legal issues to consider due to legalization. The following are just a few questions that will likely have to be considered:

  • Is it lawful to terminate an employee who has tested positive for marijuana?
  • Can an employer refuse to hire someone who tested positive for marijuana?
  • If so, isn’t this regulation of the employee’s off-duty activities?
  • Is the employee then (on their off-duty time) still subject to the control of the employer and thus entitled to overtime?
  • Should marijuana use be treated the same as alcohol use?
  • If someone has a prescription for marijuana must the employer make a reasonable accommodation for the employee under the ADA?
  • Can the employer consider how the impairment affects the employee’s work?
  • Must the employer accept the liability exposure if the employee is in a position to cause injury to others due to the legal impairment (e.g. jobs with heavy machinery)?
  • Can the employer take into account the public’s acceptance of an employee that is “high” who is serving the customer?
  • Can the employer refuse to allow the employee to take his/her medication during work hours?
  • How is driving under the influence measured?
  • What are the risks given that federal law still makes marijuana use a crime? (I find it interesting that the District of Columbia allows recreational use of marijuana even though it is governed by federal law!)

As you can see from this very short list, addressing the legal issues of marijuana use will be exciting to say the least.

Right to Try & Right to Die Bills Reach the California Governor’s Desk

An interesting pair of bills rolled through the California legislature and on to the Governor’s desk. The Right to Try bill (Assembly Bill 159) would allow terminally ill people the right to try experimental drugs while shielding doctors and insurance companies from legal exposure for any negative outcomes. The End of Life Option Act (ABX2 15) would allow a death with dignity and create an end of life option to use medically assisted suicide.

Did they pass?

As to the End of Life Option Act, the Governor stated, “I do not know what I would do if I were dying in prolonged and excruciating pain,” “I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill.” This bill was signed by the Governor.

As to the Right to Try Bill, the Governor stated, in a veto message, “patients with life threatening conditions should be able to try experimental drugs” but that proposed changes to federal policies will streamline access to such drugs. “Before authorizing an alternative state pathway, we should give this federal expedited process a chance to work.” This bill was vetoed.

I find it interesting in the light of the Affordable Care Act (ObamaCare) that a person can now be allowed to end their life but cannot try an experimental drug to save their life because the drug has not been approved through the FDA. Opponents of the bill have said the legislation would harm patients or give them false hope.

Is this typical government logic?

File a Tax Return – Even if the IRS Says You Don’t Have To

An experienced accountant recently advised me to have all my clients file a federal and state income tax return whether or not the client’s income was high enough to require it.  With the increase in identity theft and cybercrime, if a social security number is unlawfully obtained and used to file tax returns seeking a refund, the senior may never know that it is being done!  The IRS estimates that it sent out nearly three million fraudulent refunds out to con artists in 2013, which cost taxpayers $5.2 billion that year alone.  The Treasury Department predicts that by 2016, that number will be over $21 billion per year.  These con artists are nearly impossible to catch, since many of the IRS refunds are paid out to prepaid debit cards that do not need to be registered.  It is the senior whose social security number was stolen that will have to pay back all of the improper refunds made to the thief.

Seniors are often the hardest hit because many do not file returns each year because their income is below the mandatory filing limit.  This means that years can go by, with a scammer filing false returns on their social security number, before the identity theft is discovered.

If a return is filed, the maximum exposure would be one year as the IRS will reject the senior’s 1040 return if someone else had previously filed a return under that same social security number.  The senior, and the family, is thereby alerted to a theft issue and it can be addressed.  Heirs may have a big surprise from the IRS if the theft is not caught and many years go by with the thief filing the false returns and pocketing huge sums of money.  They will take off and leave the senior with the bill!

By catching an identity theft in the first year, the exposure is limited and may be minimal.  Filing as early as possible is therefore also suggested to stop any thief from filing a fraudulent return as his filing will be rejected due to a previous legitimate filing.  The good news is that the IRS is catching more fraudulent returns each year, but the numbers that get through are still staggering.  The IRS still does not have a truly effective way to stop tax return fraud, so filing returns each year may be the best way to protect yourself from getting stuck with a bill when someone else cashes out on your social security number.

I Am A Published Author!

 

After watching thousands of clients struggle through a journey they are often severely unprepared for, and following my own experiences when caring for my own aging parents, I created the ElderCare Ready series as a step-by-step guide for family caregivers.  The ElderCare Ready Book explains the importance of being prepared emotionally, physically, and legally, and describes what needs to be done to prepare.  The ElderCare Ready Pack is a 200+ page step-by-step guide, and once completed by the reader, it packs the necessary information for your eldercare journey.

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In my 34-year practice in elder law, I have found that the need to care for an aging family member often sneaks up on everyone involved, and procrastination exaggerates the problem exponentially.  Both adult children and their parents tend to avoid thinking about getting sick or old.  But when the crisis eventually occurs, as millions of families have already discovered, it is more difficult to cope with the uncertainly, stress and confusion of eldercare due to a lack of clear understanding and preparation.  Sadly, by the time people call me, they are usually in crisis mode.  I created the ElderCare Ready Book and ElderCare Ready Pack so people can prepare for their eldercare journey and alleviate the accompanying stress as much as possible.

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The ElderCare Ready Book and ElderCare Ready Pack teach readers what to expect, help them to prepare ahead of time, demystify the confusing process of eldercare, and provide a clear path forward.

The Book and Pack are broken down into 10 categories: Personal Information, Contacts, Medical Information, Current Living Situation, Desired Facilities, Pets, Financial, Estate Plan, Service Providers, and Miscellaneous.

The importance of collecting this information cannot be overstated.  You need information when you have to act for your elder, especially if they are not mentally capable of making legal decisions.  I advise clients to collect this information NOW when there is no crisis at hand and while your elder is as mentally competent as possible to assist you.

To keep everyone updated on eldercare issues, I also created an eldercare website at www.eldercareready.com.  Comments on the posts are always welcome.

My ElderCare Ready Book and ElderCare Ready Pack are available at Amazon.com.  Enjoy!

Retirement Home Residents Help Young Brazilians to Learn English Via Webcam

Abundant human interaction is arguably one of the best ways for an aging person to enjoy a great quality of life in their elderly years. It is also the best way for young people to learn a new language. The human connection is what makes both of these seemingly unrelated situations meaningful.

Tim Nudd of Adweek.com reported on FCB Brazil, who, in Partnership with the CNA Language School in Liberdade, Brazil, has found a way to bring young Brazilian students and older Americans together in a way that benefits both. This project is called the Speaking Exchange and it uses webcams that allow the residents of the Windsor Park Retirement Community in Chicago to chat with Brazilian language students, with the aim of helping the young students to learn English through natural conversations with native speakers. CNA plans to implement the program in all 580 of its language schools around Brazil.

Click the image below to read Nudd’s article on Adweek.com:

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The residents of Windsor Park have the opportunity to help the students with their English speaking skills and in turn, they are able to form gratifying and uplifting relationships with the younger learners. Particularly for the aging residents, the experience is gratifying as it allows them to share their experiences and to play an important and helpful role in the development of the students. Although Windsor Park is known for its variety of social outlets for its residents, and the people who live there may not necessarily be universally labeled as “lonely elderly Americans”, there is no doubt that the experience is enriching for both the residents and the students.

Cultural awareness is also something that is invaluable for young people in an increasingly technological society, and having everyday interactions with people from other countries (and other generations) is invaluable in teaching perspective and appreciation for other cultures, and in particular, value for older persons and the potential for their importance to society past their working years.