Filial statutes create questions about duty to support

Jenny Montgomery
June 20, 2012
Back to TopCommentsE-mailPrintBookmark and Share

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.”


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.”•


  • Long-term care insurance
    Long-term care insurance may only cover $100 per day AFTER the first 100 days that have been paid by Medicare.
  • LTC
    This is why it is important to consider Long term care insurance. For you and for your loved ones
    • 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.

    Post a comment to this story

    We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
    You are legally responsible for what you post and your anonymity is not guaranteed.
    Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
    No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
    We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

    Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

    Sponsored by
    Subscribe to Indiana Lawyer
    1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

    2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

    3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

    4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

    5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.