Cancer and the Law
Do You Know Your Legal Rights?
by Rodney Warner, Esq.
A cancer diagnosis can affect more than just your health. If treatment goes well and you have better than adequate health insurance, a strong support system, sufficient savings, and an understanding employer, you have a good chance of returning to life as you knew it before the diagnosis. But for many people diagnosed with cancer, the crisis can spill over into their employment, marital relationship, and other aspects of daily life.
Fortunately, state and federal laws have been passed to offer cancer survivors some legal protection. When federal laws apply, they are uniformly applicable among all states. However, when a state law applies to a particular issue, the law is likely to vary from state to state.
State and federal laws may help you keep your job and benefits. The employment provisions of the Americans with Disabilities Act apply where there are 15 or more employees. If there are fewer than 15, you may be covered by state law, or even a town or city ordinance, with similar protections. Under the ADA, if you are in treatment or in remission, you will probably fall under the law’s protection.
If there are 50 or more employees at your workplace, you may be eligible for up to 12 weeks of unpaid medical leave under the federal Family and Medical Leave Act. If there are less than 50 employees, there may be a state law that applies. Those 12 weeks may be taken in one block of time, or they can be broken up to allow you to work at a reduced schedule over time. The FMLA benefit also applies to employees who are caretakers for an immediate family member.
You may be eligible for up to 12 weeks of unpaid medical leave under the federal Family and Medical Leave Act.
If you are a single parent with cancer, formally obtaining legal and physical custody of your child may be important in order to plan for your child’s future. If you have not received child support prior to your diagnosis, it may be time to file, especially if you work fewer hours or lose your job.
If you are uncertain who will care for your children in the future, many states have standby guardianship laws. These laws allow a parent or guardian to name a guardian in case they are unable to care for their child due to incapacity or death. A judge has the final say as to who the guardian will be.
If a caregiver has turned abusive, there are state laws to protect the victim. They may require the abuser to cease the abuse and stay away from the victim. This can be a difficult situation if the cancer survivor has no other viable options and he or she still needs help with daily life.
A cancer experience can strengthen a marriage or break it apart. A divorce can be done simply and efficiently, or it can be drawn out, expensive, and traumatic. It all depends on the laws of the particular state and if the spouses can work cooperatively. Under the federal Consolidated Omnibus Budget Reduction Act (COBRA), if you receive health insurance through your spouse’s employer, you may qualify for 18 months of coverage after divorce or legal separation.
With a properly executed will, you can state who you want to have your property (including real estate, personal items, and any other assets) after your death. Without a will, your property passes to your next of kin. You can also voice your preference for a guardian for your child in your will.
Different states have different types of advanced healthcare directives. Generally speaking, they allow you to state what kind of treatment you want (and don’t want), in case you can’t speak for yourself, and to name someone to speak for you if you become incompetent to make your own decisions.
A financial power of attorney allows an agent (someone you name to act on your behalf) to have access to your assets, pay bills, and make financial decisions. But naming an agent unable to handle these matters, or who takes advantage of the situation for his or her own benefit, can create much bigger problems.
If you need help, seek legal advice. It’s essential that you focus on recovery. And in many instances, getting legal help may allow you to do so.
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Rodney Warner, a Hodgkin’s lymphoma survivor, is a staff attorney for the Law & Health Initiative for Cancer Survivors, part of the Legal Clinic for the Disabled, Inc. in Philadelphia, PA.
If you need legal help during your cancer battle, the Cancer Legal Resource Center maintains a nationwide database of legal resources. Visit CancerLegalResourceCenter.org or call (866) THE-CLRC (866-843-2572).
This article was originally published in Coping® with Cancer magazine, July/August 2010.