Call Me Irresponsible – Should A Child Be Required To Pay For Parent’s Care?

09 Jun Call Me Irresponsible – Should A Child Be Required To Pay For Parent’s Care?

A child often relies on his or her parents until adulthood is reached. So, does the child have a duty to support his or her parents if they are no longer able to provide for themselves? The answer may depend on where the child and parent live.

HISTORICAL ORIGIN: This moral standard of reciprocity had biblical origins and resulted in filial responsibilities under Roman law. This was further codified under the Elizabethan Poor Relief Act of 1601. The family was the paramount source of aid for their indigent family members, and the government was only a secondary source of assistance. This tradition carried on from America’s colonial days. Most states still have filial responsibility laws, although the laws are generally not enforced.

SHIFT IN PHILOSOPHY: A shift in responsibility from the family to the government began as a result of the Great Depression when the Social Security laws were created. As Social Security became the most important source of retirement income, we began to rely on the government.

In the 1960s, Medicare and Medicaid became law which again shifted more responsibility for health care of Americans from the family to the government. As a result of Medicare and Medicaid, most states either eliminated their filial responsibility laws or fail to enforce them (however, in April of this year, the Virginia governor blocked an attempt to repeal its filial responsibility support law). However, some states still do enforce these laws. So, if you have an indigent parent in one of the states that is active in enforcement, then an adult child could be responsible for the debts (normally health care costs and the average cost of nursing home costs range from $7000 to $14,000 per month depending on where you live) of his or her parents.

LIABILITY OF CHILD: The filial responsibility laws differ by state. Some states allow lawsuits by nursing homes, hospitals, assisted living facilities, etc. Other states permit the parents or their guardian ad litem to sue. A few states even allow criminal penalties for failure to abide by the law. However, most states that still have filial responsibility laws do not require a child to pay his or her parent’s bill if they were abandoned as a minor by the parent who becomes indigent.

One of the more well-known cases was a Pennsylvania court decision that a son was responsible for his mother’s $93,000 nursing home bill (even if he was estranged) after being sued by the nursing home notwithstanding federal laws that prevent a nursing home from holding a third party to be liable as a condition for admission (although one should be careful in reviewing nursing home admission contracts which often indicate a “responsible party” must guarantee payment).

Texas does not have a filial responsibility law anymore. However, if a child lives in Texas and the indigent parent lives in another state that does enforce filial responsibility, then the child could be held personally liable.

REDUCTION OF RISK FOR ADULT CHILD: If you (as a Texas resident) have an indigent parent who lives in another state, what should you do to reduce risk?

1. Contact an elder law attorney in the state where the parent resides to see if the state has a filial responsibility law and its level of enforcement.
2. Get the parent eligible for Medicaid (Medicare has limited coverage).
3. If the state enforces filial responsibility, consider moving the parent to a facility in a state (such as Texas) that does not have such a law.
4. Even if not in a state that has a filial responsibility law, be sure to read the admissions contract which often requires a “responsible party” to guarantee payment – notwithstanding federal law to the contrary. You don’t want to buy a lawsuit or run the risk of liability. Often a child (or agent under a power of attorney acting on behalf of the nursing home resident) thinks he or she is signing a standard contract or is in a hurry to sign and doesn’t read the fine print which may require guarantee of payment.

CONCLUSION: As baby boomers continue to age, there will be more of a strain on Medicare and Medicaid to pay for the cost of care.   Whether or not the government will shift back to creating more responsibility to family members is unknown (although presently the direction is to shift the burden of care costs to the government), it is probably best for the highest level of care to have both family and government be responsible in some manner.      

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