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Filial statutes create questions about duty to support

Jenny Montgomery
June 20, 2012
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A recent Pennsylvania court decision has spurred discussion about when an adult child may be found financially responsible for a parent’s long-term medical care.

The case, Health Care & Retirement Corp. of America v. John Pittas, Pa. Super. Ct., No. 536 EDA 2011, May 7, 2012, brings to light the lack of clarity in filial responsibility laws. In many states – including Indiana – these laws, that are a holdover from England’s Elizabethan era, outline a child’s duty to contribute to costs of a parent’s care if the parent lacks the ability to do so.

jenkins-sarah-mug.jpg Jenkins

Indiana Code 31-16-17, “Liability for Support of Parents,” specifies that if a child is “financially able,” and a parent is “financially unable” to pay for medical care, the child shall contribute to the costs. But with no hard-and-fast rule to gauge financial ability, the law creates some fundamental questions for elder law attorneys.

Pennsylvania’s opinion

In the Pittas case, an appellate panel for the Pennsylvania Superior Court held that John Pittas had to pay his mother’s $92,943.41 nursing home care bills. The court held that the nursing home was able to show that Pittas had the financial ability to pay, based on his annual income of $85,000. But Pittas argued that the court failed to consider his other financial obligations and that his mother has a husband and two other grown children. The Pennsylvania filial responsibility statute, however, makes no mention of such considerations.

“Indeed, while sympathetic with Appellant’s obligation to support his mother without the assistance of his mother’s husband or her other children, we note that if Appellant had desired to share his support-burden, he was permitted to do so by joining those individuals in this case. However, Appellant took no such action,” Judge Judith Ference Olson wrote in the appellate panel’s opinion.

“The case out in Pennsylvania is just astounding to me,” said Faegre Baker Daniels attorney Sarah Jenkins.

The federal Nursing Home Reform Act prohibits nursing homes from requiring payment as a condition of admission, but Jenkins said it appears that states with filial responsibility laws create statutory liability for children.

In caring for children, parents enjoy certain benefits such as claiming children as dependents. And parents may generally expect to save for a child’s future expenses.

“The problem I see with this is children don’t have any advance notice that they might be caring for a parent,” Jenkins said.

The cost of care

In the Pittas case, the mother’s bills accrued after a six-month stay in a nursing home, where she received rehabilitative care for two broken legs sustained in a car crash. While Medicare will cover 100 days of skilled, medically necessary care, it does not cover the day-to-day assisted living tasks that Medicaid does.

“What you’re really looking at is instances of between when a parent runs out of money and when a parent qualifies for Medicaid,” Jenkins said.

Nursing home care is about $5,000 a month, solo elder law attorney Paul S. Ward said, and families are generally not prepared to handle the Medicaid application process. The program’s changing requirements and procedures can easily cause people to lose their eligibility.

In Indiana, people typically apply for Medicaid online through a centralized service center.

“Before the new system came into place, you dealt with a caseworker in a local county office, but now it’s all done with a service center in Indiana, so you’re basically communicating with a fax machine,” Ward said.

Jenkins pointed out that parents of minor children generally have their children insured under their policies, which provides some measure of protection against catastrophic medical costs. But the same is not true for adult children with aging parents.

“You just don’t have that here,” she said of Pittas, “where after the fact the court decides, we’re just going to reallocate to the child because they have a responsibility to pay.”

Interpretation

Ward said the issue of filial responsibility has been a topic of discussion among elder law attorneys recently and no one really knows what “financially able” means in Indiana’s statute.

Charles W. Backs, of the Fort Wayne firm Beers Mallers Backs & Salin, said that according to 42 USC 1396r (c)(5), a nursing home cannot require a third party to sign or be personally responsible for a resident’s expenses. Even a power of attorney could sign on behalf of a parent, but not be personally financially responsible for the costs of care.

“That flies in the face of the statute here in Indiana, and even though the facility can’t require a person to personally guarantee expense, through that section, it is possible for a facility to say, I don’t need you to guarantee it, I can sue you,” Backs said.

Ward was not aware of a case in Indiana in which the filial responsibility statute has been enforced. And Backs wonders if Indiana judges would reach the same conclusion the Pennsylvania judges did.

“I think it really would be against public policy, and it’s pretty Draconian … I don’t know what would happen,” Backs said. “I would think many judges would shoot it down.”•

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  • opt out
    How do I legally and enforcably 'opt out' of any care that I am not awake, aware, and able to request for myself, or in my 'right mind', and able to evaluate and express my decisions?
  • Filial support
    A filial obligation imposed upon an adult child can be financially devastating if the child's parent requires healthcare, particularly long-term care, such as in a nursing home, which is typically not covered by private insurance. Some think that a debt incurred by a person should not have to be paid by their children and vice versa. However, a number of states hold that they do, through what exactly are called “filial support” laws. The regulations are resulting in a number of people getting saddled with huge debts and getting stung with lawsuits. Filial support laws put many in debt for care of parents.

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  1. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  2. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  3. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  4. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  5. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

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