The Pennsylvania Association of Elder Law
Attorneys (PAELA) has
adopted a policy position in favor of the repeal of Pennsylvania's filial
support law.
PAELA is an association of elder law attorneys whose mission includes ensuring that Pennsylvania’s laws are designed to
enhance the lives of older persons and those with special needs.
As Immediate Past President of PAELA I was
involved in putting together the position statement for the organization. The
statement reads as follows:
The
Pennsylvania Association of Elder Law Attorneys (PAELA) favors repeal of
Pennsylvania’s filial support law.
What is the Filial Support Law
Current
Pennsylvania law provides that children have the responsibility to care for and
maintain or financially assist their indigent parent. 23 Pa. C.S.A. §§
4601-4606. Likewise, parents have the responsibility to care for and maintain
or financially assist their indigent adult children. This is sometimes referred
to as “filial support.” The word “filial” means “pertaining to, or befitting a
son or daughter.”
The Law is Being Applied for Collection of Prior Debts not Support
Pennsylvania
filial support law is being used by hospitals, nursing homes and other care
providers to sue children for debts owed by their parent. It is being applied
as a way for care providers to collect outstanding debts rather than as a way
of providing current and future support for the parent’s care and
maintenance.
For example,
in the recent case of HCRA v. Pittas a son was held liable for over
$92,000 of his mother’s past due nursing home bills. The nursing home was not
required to give the son notice of the debt or his potential liability as the
debt was being incurred. The son was not accused of any wrongdoing. There was
no suggestion that the mother had turned any assets over to the son. The nursing
home was not required to sue other family members, nor was it required to wait
to see if the mother would qualify for public benefits to pay her bills. The
son was held liable for the debt solely because he was his mother’s son and had
some ability to pay.
Children
voluntarily provide countless hours of physical care, emotional support and
financial assistance to their aging parents. Aging parents may need such
support now and in the future. But
PAELA believes that the current use of Pennsylvania’s filial support law as a
collection tool to hold children liable for debts previously incurred by their
parents is misguided, unfair and counterproductive.The filial support law is not being used for support. The filial support law is part of Pennsylvania’s Domestic Relations Code. In other support cases the Domestic Relations Code provides that support is normally awarded only from the date of the filing of the complaint. See, Pa.R.C.P 1910.17 (support order) regarding child and spousal support; Bowser v. Blom, 766 A.2d 1259 (Pa.Super. 2001). The rule prohibiting retroactive support reflects the concept that support is intended to provide current and future assistance to the person in need.
Holding a
child liable for his parents’ past debts does not provide support to “care for
and maintain or financially assist” the parent. There is no support involved. To
the contrary, requiring a child to pay off his parent’s creditors may actually reduce
a child’s ability to provide current and future support to his parent.
Liability accrues without notice to the child. It is fundamentally unfair to hold a child liable for debts
being incurred by his parent, without giving the child notice and an
opportunity to mitigate the liability.
With notice, the child could act to mitigate the liability, for example
by helping the parent apply for available public benefits.
The law creates family discord and litigation. Pennsylvania’s filial support law creates conflict between the
interests of parents and children. And, as applied in Pittas, the law encourages
family disputes. The nursing home or other care provider can choose which child
to sue. That child is then required to sue his or her siblings and/or his
parent's spouse in order to get them to share the filial support duty.
The law encourages the reduction of care to the parent. By making the child financially liable for the parent’s cost
of care, the law encourages both parent and child to reduce the care being provided
to the parent. For example, it gives the child a strong incentive to remove the
parent from a costly nursing home or other facility, or to reduce the amount of
professional care being provided at home.
The law makes the child a guarantor of his parent’s care related
debts. Federal Medicare and Medicaid laws
mandate that a skilled nursing facility must “not require a
third party guarantee of payment to the facility as a condition of admission
(or expedited admission) to, or continued stay in, the facility.” See, 42 U.S.C. § 1395i-3(c)(5)(A)(ii). Yet, the Pennsylvania filial support law effectively makes the
child a third party guarantor for the parent.
Pennsylvania’s law is at odds with the federal statutory prohibition.
In a recent Montana case, the court refused to allow a nursing home to use that state’s filial
support law to collect an outstanding bill from the son of one of its
residents. The court found that application of the Montana filial
responsibility law was in conflict with a federal prohibition against nursing
homes requiring a third party to guaranty payment of the costs of care. Heritage
Place, Inc. v. Jerry A. Jarrell (Mont. Dist. Ct., 11th Dist., No. DV-11-430(D),
July 2, 2013).
Other States are Repealing Filial Support Laws
Filial support laws are vestiges of the
“poor laws” of colonial times that were derived from England's Elizabethan Poor
Relief Act of 1601.
At one time as many as 45 states had filial support laws, but
most have been repealed, abandoned, or fallen into obsolescence. Two states,
Idaho and New Hampshire, have recently repealed their filial support laws. See, IDAHO CODE ANN. § 32-1002 (repealed July
2011). And see, New Hampshire HB
481 (2013) which repeals the potential liability of children
for their parent’s care costs.
These filial
support laws are ignored in most of the other states that still have not
repealed them. But they are not being ignored in Pennsylvania which has seen
their most use in litigation against children for purposes of debt collection
rather than support.
PAELA’s Position
The use of
Pennsylvania’s filial support law in third party collections cases is
fundamentally unfair and counterproductive. It does not support older adults.
It is injurious to family relationships and may lead to the denial of needed
care.
In PAELA’s
view, the Pennsylvania Legislature should follow the lead of New Hampshire,
Idaho and other states which have repealed their filial support laws.
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