Sunday, March 6, 2016

Are Children Required to Support their Aging Parents?

Most Americans underestimate the risk that they will someday develop a disability and will require assistance and support on a daily basis. But research shows that more than half of Americans turning 65 today will develop a disability serious enough to require long term care. It’s the reality of aging.

Much of the care needs of older adults are met by family members at no financial cost to the recipient. But when care must be purchased, it can be very expensive. A recent government report estimates that on average, an American turning 65 today will incur $138,000 in future long term care costs.

The cost of care is often more than an older adult can afford to pay. If a parent cannot meet their care and maintenance needs are their children obligated to provide and/or pay for that care?  In Pennsylvania, the answer is yes. A child can be sued and held financially responsible to help a parent with the cost of their care and maintenance. (In like manner, parents can be held liable to help pay for care needed by their adult children.)

This family support obligation between parents and children is often referred to as “filial support.” 

The Pennsylvania’s Domestic Relations Code contains the law that requires children to provide support for their “indigent” parents. Here is what this Pennsylvania statute says:

(a)  Liability.--
(1)  Except as set forth in paragraph (2), all 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.
(2)  Paragraph (1) does not apply in any of the following cases:
(i)  If an individual does not have sufficient financial ability to support the indigent person.
(ii)  A child shall not be liable for the support of a parent who abandoned the child and persisted in the abandonment for a period of ten years during the child's minority.

The statute does not define the term “indigent person” but courts have held that a person is indigent if they have insufficient means to provide themselves with the care and support they need. One Pennsylvania court described indigency under this law as follows:

“Indigent persons are those who do not have sufficient means to pay for their own care and maintenance. ‘Indigent’ includes, but is not limited to, those who are completely destitute and helpless. It also encompasses those persons who have some limited means, but whose means are not sufficient to adequately provide for their maintenance and support.” HCR v. Pittas, 2012 Pa Super 96 (Pennsylvania Superior Court, May 7, 2012).

It is fairly clear that a person who needs care (whether in their own home or in a nursing or personal care home) and who runs out of the means to pay for that care fits this definition of indigent person.

Care Providers Can Sue the Children

The law authorizes an indigent parent to sue an adult child for filial support. The law also authorizes nursing homes and other care facilities to sue the children of their residents for unpaid services. 23 Pa.C.S.A. §§ 4603(c)(1)(2).

If payment for services rendered has not been made, a care facility obviously has a strong financial incentive to pursue the children for support. In Pennsylvania many such lawsuits are filed. In the HCR v. Pittas case mentioned above, a son was held liable for his mother’s $93,000 nursing home bill even though there was no allegation that the son had ever received gifts from the mother.

Another recent case is EORI v. EORI which was decided by the Pennsylvania Superior Court on August 7, 2015. Mrs. Eori, a 90 year old widow with three children, was living full-time with her son Joseph. She was suffering from Alzheimer’s and required extensive assistance. Acting as his mother’s power of attorney, Joseph filed a lawsuit against his sister Pauline and his brother Joshua, seeking filial support for their mother.

Pauline settled before trial and agreed to pay $400 a month in support to her mother. Joshua refused to settle and after a trial the lower court ordered him to also pay his mother $400 a month.

Joshua appealed from the court order. Among other things he argued that his mother was not indigent because his brother Joseph was supporting her. Joshua also argued that he was incapable of financially supporting his mother; and that he should not be required to pay support because his mother had abandoned him for ten years during his minority.

The court rejected all of Joshua’s arguments and affirmed the order that he contribute $400 a month for the support of his mother.

My guess is that in other similar cases, where one child is bearing the majority of the physical, financial, and emotional burdens of caring for a parent, courts are likely to be sympathetic to requests for financial contribution from other children. The filial responsibility law provides an effective vehicle for the care provider child to seek that contribution.

Children need to be aware of their responsibility to support their aging parents. They disregard this obligation at their peril. Children should encourage their aging parents to plan in advance so that the parent will be able to qualify for Medicaid, Veterans, and other benefits if needed and will always have the means to pay for the care they need.

A lack of planning by the parent, or poor planning, combined with later health problems, can trickle down and end in significant financial liability for the child. It can even extend to siblings suing each other as shown by the Eori case. If the need for long term care is in the picture, effective planning combined with expert advice regarding the ever shifting Medicaid and support laws, can help protect not only the parent's assets, but the children’s finances as well.

Note: some people wrongly assume that a child can only be held liable if their parent gave them money or property. But the Pennsylvania law is much broader than that. Whatever the reason your parent became indigent, you have the obligation to support them if you have the means to do so, even if no gifts were ever made. While this liability can arise in situations where a parent is ineligible for Medicaid because they gave assets away, it can also arise where Medicaid and transfers are not involved. The child’s financial support obligation is based on Pennsylvania’s family support laws, not Medicaid laws.

Is your parent in danger of needing care that may someday exhaust their savings? If so, and your parent resides in Pennsylvania or another state with a similar filial support law, you need to get expert help to make sure you don’t end up being personally liable for the cost of their care. Make an appointment with an experienced elder law attorney to find out about your family's planning options. In Pennsylvania, you can call Marshall, Parker and Weber, which has offices in Williamsport, Wilkes-Barre, Scranton and Jersey Shore.  Check us out at www.paelderlaw.com.

Free Webinar on Filial Support

If you want to know more about Pennsylvania’s filial support laws, you can register for a free webinar being given on March 16, 2016 by attorney Nicholas Lutz of Marshall, Parker and Weber. Register here: http://www.paelderlaw.com/seminars-signup/.

If you miss the live webinar you can listen to it later on the Marshall, Parker and Weber website here: http://tinyurl.com/hxzmgv5.

No comments: