Here is a quick multiple-choice test for you. Who is ultimately responsible to pay for the care needed by an adult who has no way to pay for the care they need?
A) The Government
(e.g. Medicaid, Medicare, Social Security Disability)
B) The company providing the care
C) The spouse, parents and/or children of the care-recipient
D Charities, or
E) No one.
The correct answer may worry you. Under Pennsylvania law, the correct answer is C – the spouse, parents and/or children of the care-recipient. For example, if your mother suffers from dementia and has no way to pay for all the care she needs, you may be legally responsible to help pay for her care. Similarly, if your adult child needs care but cannot pay for it, you, as the parent, may be legally responsible to pay. If you do not pay the nursing home or other care provider can sue you for the money.
That is the law in Pennsylvania which has one of the nation’s toughest so-called “filial support” statutes. See the end of this article for the statute language (23 Pa.C.S. §4603.) I’ve written about it before here and here.
Pennsylvania’s statute expresses the policy that institutions supplying care can continue to fulfill that vital societal function without incurring unremunerated costs. The view is that it is more important to protect the care provider than the spouse, parents and children of the care recipient.
However, what if you don’t even live in Pennsylvania? What if you live in a state with much more lenient laws? Can you still be held financially responsible for the unpaid cost of care provided to your parent or child in Pennsylvania? That question was answered recently by the Pennsylvania Supreme Court in the case of Melmark v Schutt.
In the Melmark case, Alex Schutt was a severely disabled adult who was receiving care at Melmark’s facility in Delaware County. Alex’s parents resided in Princeton, New Jersey. Over the years Alex had qualified for various government benefits which paid for his care. But in 2012 the Government benefits stopped due to a dispute over Melmark’s rates. Melmark was unpaid for 13 months. The facility sued Alex’s parents for $205,000, the cost of the care it provided before Alex was ultimately transferred to another facility. The parents argued that New Jersey law should apply to them because that is where they lived. New Jersey’s filial support law would not have held the parents financially responsible to pay for the care of an adult child like Alex.
Ultimately, the PA Supreme Court held that Pennsylvania had a stronger interest in this case than New Jersey and that Pennsylvania filial support law applied. The Court reasoned that Pennsylvania law had priority because “Pennsylvania plainly has a strong interest in ensuring that relatives do not leave their disabled family members at private Pennsylvania facilities in such a way that those facilities are forced to incur substantial uncompensated expenses on an indefinite basis – an interest which is reflected in 23 Pa.C.S. §4603.” (See page 19 of the Majority opinion in in the Melmark v Schutt case linked below).
In addition, the Court held that the parents could also be held liable under the doctrines of unjust enrichment and quantum meruit.
The bottom line is that Pennsylvania care providers can and do go after a care-recipient’s parents and children for unpaid bills. Families need to plan in advance to make certain that their parents and children will always be able to pay for the care they need. You want to create a plan that ensures that they will have sufficient resources, or insurance, or will be able to qualify for government benefits like Medicaid, to pay for any needed care. In Pennsylvania this is a family responsibility.
If you have a spouse, parent or child who may need care, consult with an experienced elder law attorney to learn how to minimize the risk of family financial devastation.
(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.