Thursday, April 5, 2012

Children can be liable for a parent’s long term care costs in Pennsylvania

Can a child be held liable for a parent’s health and long term care expenses?  In Pennsylvania, the answer is yes, provided there is no other adequate source of payment (such as Medicaid) for the care.

Pennsylvania law imposes an obligation on a child to provide support for an indigent parent. Section 4603(a) of the Pennsylvania Domestic Relations law says:

[A]ll of the following individuals have the responsibility to care for and maintain or financially assist an indigent person, regardless of whether the indigent person is a public charge:
(i) The spouse of the indigent person.
(ii) A child of the indigent person.
(iii) A parent of the indigent person.

The statute does not define the term “indigent person” but Pennsylvania case law makes it clear that a person is indigent if they lack the financial ability to meet their routine expenses, such as food, lodging and care needs.  

If an indigent parent fails to qualify for Medicaid because of transfers of assets or any other reason, children with the means to provide support may be liable for the cost of care. Nursing homes and other care facilities are authorized as parties who may seek relief. A nursing home or assisted living facility in which the parent resides may have a strong financial incentive to pursue the children for support. Over the last several years, many such lawsuits have been filed in Pennsylvania. 

Both parents and children need to be aware of this potential “filial” liability. Children disregard their parents' health and financial circumstances at the child’s peril. A lack of planning by the parent, or poor planning, or general misinformation, can create this liability. When the need for long term care arises, effective planning combined with expert advice regarding the ever shifting Medicaid and support laws, can help protect not only the parent's assets, but their children's finances as well.

Families should note that the child’s filial liability is based on Pennsylvania’s family support laws, not Medicaid laws. While this liability can arise in situations where a parent is ineligible for Medicaid due to a transfer of assets, it can also arise where Medicaid and transfers are not involved.  Consider the following example:

Mom has been residing in Green Meadows Assisted Living Facility for the past 18 months.  Mom’s has income of $1,200 a month from Social Security. Green Meadows has a monthly cost of $3,000 per month.  This means that there is a monthly shortfall of $1,800 between Mom’s income and the cost of her care. Mom needs an assisted living level of care and is not nursing facility clinically eligible, so Medicaid is not available. Mom has not transferred any assets. When Mom exhausts her savings, the Pennsylvania Domestic Relations Code authorizes Green Meadows to pursue an action against her children for support to cover the shortfall.   

Bottom line: You need to get expert advice from an elder law attorney if your parent needs long term care. 

For more information:
·       Chapter 14 of ElderLaw in Pennsylva­nia 3rd Edition, (Jeffrey A. Marshall, Editor, PBI Press, 2011) has an in depth discussion of filial support obligations in Pennsylvania.  

·       The Pennsylvania statute is codified at 23 Pa.C.S.A §§ 4601-4606 (2005) (Support for the Indigent).

·       Pennsylvania cases include, PresbyterianMedical Center v. Budd, 832 A.2d 1066 (Pa.Super.2003), Verna v. Verna, 432 A.2d 630, 288 Pa. Super. 511 (1981); Albert Einstein Medical Center v. Forman, 243A.3d 181, 212 Pa. Super 450 (1968); Commonwealth Home for the Jewish Aged v. Kotzker, 118 A.2d 271, 179 Pa. Super 521 (1955).  

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