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Financial Responsibility for your Aging Parents: What’s the Law in Your State?

Filial Responsibility and Medicaid

This post has been updated as of 2023 here: https://aristahc.com/filial-responsibility-and-medicaid/

“Filial responsibility” laws hold that the adult child (or children) of a parent has the legal obligation to pay for the necessities of the parent who cannot do so for themselves. The courts need not divide the liability evenly between the children but may simply consider who is more able to pay this debt. For many years these laws have not been relied on because, once Medicare, Social Security and Medicaid were enacted to offer a safety net to seniors, they were less important. However, recently such laws have begun to be used to attempt to force children to pay their parents’ nursing home bills once the parent runs out of assets.  With people living longer, even those with hefty bank accounts can run out of money.  Consider the cost of long-term care facilities, with nursing homes approaching and even exceeding $100,000 a year in many states.  Medicaid coffers are being tightened and several states are looking for ways to protect these assets for those who are most in need.

For example, in a 2012 Pennsylvania case (Health Care & Retirement Corporation of America v. Pittas), the court held that a son of an elderly woman, who left the country owing $93,000 to her nursing home, is liable for her bill under the Pennsylvania filial responsibility law. The mother had actually filed an application for Medicaid, but it was still pending at the time of this case. Thus, the bill was owed for her private care and the nursing home brought the law suit. It did not matter that the child did not sign the admission form for his mother; his responsibility was based solely on his relationship to the debtor.

However, under federal law, a nursing facility may not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, said facility. Under general legal doctrine, a specific law trumps a general law that may conflict. Based on this doctrine, a 2013 case in Montana held that such federal statutes trumped the more general state filial responsibility law, and so it denied the claim by the nursing home against the child in this instance.

Since each state court looks to its own court decisions and is not bound by those of other states, there is no guarantee that another court in another state will rule the same way. Thus, it is important for both parents and children to find out the law in your particular state and whether it is currently being enforced.

Of course, if the parent becomes eligible for Medicaid, then the government is paying the nursing home bill, and these filial responsibility laws are irrelevant. Keep in mind that Medicaid does not require the recipient’s children to contribute funds toward the parent’s care. Instead, the state will try to recover benefit costs though the recipient’s estate once they pass away (e.g. a home, car, etc.). So, the possible application of the filial responsibility law is only where the parent for some reason does not qualify for Medicaid, yet is admitted and does not pay their nursing home bill.

However, if a child shares assets like property or bank accounts with their parent(s), then the state may take action against these assets when trying to recover care costs. In this case, such action against the estate would obviously affect the child. (Note: This is not the case if the child is a minor, blind or disabled.) Joint ownership of a home and a financial account under both names fall under these circumstances, which is why it is very important for families to consult with attorneys when applying for Medicaid, placing assets under certain names and setting up trusts.

There are currently 28 states with some type of filial responsibility laws (also known as filial support or filial piety laws) on the books.

·         Alaska

·         Arkansas

·         California

·         Connecticut

·         Delaware

·         Georgia

·         Indiana

·         Iowa

·         Kentucky

·         Louisiana

·         Maryland

·         Massachusetts

·         Mississippi

·         Montana

·         Nevada

·         New Jersey

·         North Carolina

·         North Dakota

·         Ohio

·         Oregon

·         Pennsylvania

·         Rhode Island

·         South Dakota

·         Tennessee

·         Utah

·         Vermont

·         Virginia

·         West Virginia

For more information on whether or not these state statutes are something for you and your family to be concerned about, consult with a reputable attorney who specializes in elder law issues, Medicaid or estate planning in your state.

This article was modified from an article originally written by K. Gabriel Heiser, attorney, author, and Medicaid asset protection planning expert as posted on AgingCare.com

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