Thursday, October 3, 2013

Elder Law Attorneys Favor Repeal of Filial Support Law

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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