Are Distributions From A Special Needs Trust To Pay For Medical Marijuana For The Trust Beneficiary An Appropriate Expenditure Of Trust Assets?

(The following is part of a discussion, taken from a listserv, or electronic bulletin board, between attorneys involved in advising trustees of Special Needs Trusts (SNT). This discussion concerns the appropriateness of distributions from a Special Needs Trust to pay for medical marijuana to be used by the trust beneficiary who lives in the State of California, where medical marijuana is legal.)

Question: Hard to believe I haven’t run into this before, but the beneficiary of a SNT has been medically approved to use medical marijuana and has her medical marijuana card. The SNT trustee wants to pay for the medical marijuana. However, while medical marijuana is legal in California, it is illegal under federal law. As I understand it, the federal government is not enforcing the law against medical marijuana in California now, but it has reserved the right to do so later.

The SNT trustee has asked for my legal opinion about the appropriateness of distributing trust assets to pay for the medical marijuana.

Anybody have any thoughts on the issue? Can any former prosecutors weigh in on advisability of trustee making this type of distribution?

Answer: As a former public defender, I will give you my opinion (for what it is worth).

I would let the SNT trustee make the decision after giving the trustee the exact same information you posted above. If the trustee pushes you for a recommendation, I would advise against making any distributions to pay for medical marijuana.  While medical marijuana may be legal under California law, as an attorney I do not think you can recommend that the trustee violate federal law, whether or not the federal law is currently being enforced.

I asked a good friend of mine who is a former prosecutor and he answered the same way.  In fact, he showed me the disclaimer at the bottom of the physician’s statement regarding use of medical marijuana, which states “This recommendation is in no way to be interpreted as a prescription as defined under Federal Law.  It is merely a recommendation that adopts the legal provisions of California Health and Safety Code section 11362.5 and is only meant to be applied under California Law.  Under federal law, cannabis is a schedule 1 drug, and under federal law, the sale, possession and cultivation of cannabis is illegal.”