What Is A Primary Caregiver?
Health and Safety Code §11362.7 (Prop 215 Remains In Effect)
WHO: A primary caregiver is an individual who is designated by the patient to consistently assume responsibility for a patient’s housing, health and safety. At a minimum, a primary caregiver must prove that he/she (1) consistently provides care for the patient; (2) provides care that does not have anything to do with medical marijuana; and (3) provides care at or before the time that the primary caregiver assumed responsibility for assisting with the patient’s medical marijuana needs. For more information, refer to People v. Mentch (2008) 42 Cal. 4th 274.
See recent legislation under Prop 64 that limits the number of patients allowed and the area of grow to 5 patients.
Note from Bruce: providing marijuana alone does not qualify a person to be a patient’s primary caregiver. For more information, see People v. Windus (2008). In addition, cannabis clubs or dispensaries do not qualify as primary caregivers (People ex rel. Lundgren v. Peron (1997)).
Health and Safety Code 11362.765(b)(3) extends protections to individuals providing assistance to a qualified patient or an individual with an identification card, or to his/her primary caregiver when administering medical marijuana/cannabis or acquiring the skills to cultivate or administer marijuana/cannabis.
HOW TO: There is no requirement stating that a primary caregiver must be designated in writing. However, currently under Prop 64 includes provisions for county health departments to issue an ID card for primary caregivers as well. See page 16 on how to obtain County Health Department ID cards.
REASONABLE COMPENSATION IS ALLOWED BUT NOT FOR PROFIT*: Prop. 64 added Section 26033 to the Business and Professions Code, protecting patients and primary caregivers who cultivate an unspecified amount for themselves or no more than five patients and 500 square feet, if they receive compensation only under Subdivision (c) of Section 11362.765 of the Health and Safety Code. This includes reasonable compensation for any services provided for the care of the patient and out of pocket expenses. Note that the term profit is not defined by the law and is up to the discretion of the jury. Please refer to People v. Mentch (2008) 45 Cal. 4th 274 and People v. Windus (2008) 165 Cal. App 4th 634.
Note from Bruce:
- The “primary” caregiver is the individual rather than the organization. An individual or agency can be deemed a “caregiver” when a patient receives either medical care, supportive services, or both from a clinic, a health care facility, a hospice, or a home health agency.
- The “primary caregiver” can care for more than one person. However, SB 420 prohibits caregivers from having more than one patient residing outside the county of the caregiver. This may be an unconstitutional restriction and is subject to challenge. (See Prop. 64)
- There is not one case that states that a patient must be unable to grow his or her own marijuana as a condition for having a caregiver.
- Designated primary caregivers are also eligible for Health Department ID cards
- Qualified patients or their primary caregivers will be exempted from retail sales tax on medical cannabis, medical cannabis concentrate, edible medical cannabis products.