What happens if they need of long term care but cannot pay for it? Currently 28 states (listed at the end of this article) have laws which can make adult children financially responsible for their parents’ necessities of life.
Typically this happens when the parents do not have the means to pay for such necessities.
These laws are referred to as “filial responsibility laws” and have been used by nursing homes and other long term care facilities located in the states that recognize them as a means to seek reimbursement for unpaid bills.
Sixteen of these states impose civil penalties – they can come after your assets or income if you fail to support your parents.
In the eight states where filial responsibility entails criminal penalties, a prosecutor could actually put you in jail. Four states take both approaches.
In Massachusetts, for instance, someone who “unreasonably neglects” to support a parent who is destitute or too infirm to maintain himself could face up to a year in prison plus a $200 fine.
But filial responsibility laws are very rarely enforced; 11 of the 28 states that have them have never used them. I have never seen any adult child get in hot water either civilly or criminally here in California.
However, a recent case in Pennsylvania may indicate a new trend which could influence how other states proceed. In Health Care & Retirement Corporation of America v. Pittas(Pa. Super.Ct., No. 536 EDA 2011, May 7, 2012), the Pennsylvania Superior Court upheld a lower court decision which made the adult son of a woman who had received skilled nursing care and treatment at a Pennsylvania facility for a period of six months liable for the $93,000 bill.
The court concluded that the state did not have the duty to consider the woman’s other possible sources of payment, including a husband and two other adult children, or the fact that an application for Medicaid assistance was still pending. Instead, since the facility had adequately met its burden of proof that this particular son had the means to pay the $93,000 bill, the trial court was correct in holding the son responsible for paying it.
I personally do not believe that this is the right result. The rationale, which you can trace back as far as ancient Roman law, is that children have a duty to care for parents. The law sees this as a matter of ethics and reciprocity: Your parents took care of you as children; now it’s your turn to take care of them. The Pennsylvania case and the potential reverberations demonstrate how important it is to plan for your long term care needs.
Most parents do not want to be a burden to their children. For a court to impose that burden is downright scary to me. Without proper planning and legal advice from an experienced elder law attorney, children may very well be on the hook for thousands of dollars of care required by their aging parents.
At least there are some legal defenses. What if you will be impoverished if you were forced to foot the bill for your parent’s care. Statutes commonly make exceptions for a child who can’t afford to maintain a parent, such that enforcing the law simply impoverishes the child. What if you were abandoned or abused as a child? In such a case, there’s no reciprocal duty for the grown child to support the parent.
For an in depth look at the history of filial responsibility laws and a chart which lists the current state statutes, see Filial Support Laws in the Modern Era: Domestic and International Comparison of Enforcement Practices for Laws Requiring Adult Children to Support Indigent Parents, by Dickinson Law Professor Katherine C. Pearson. Note that the article can be downloaded for free.
(Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Idaho, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia and West Virginia)