By definition, “filial” means the relationship of child to parent.  Over the past few years, we have seen new state laws addressing this relationship by requiring adult children to be responsible for their parents if their parents cannot afford to take care of themselves. States that have enacted such filial responsibility laws are: Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, and West Virginia. Fortunately, these laws have rarely been enforced, and federal law provides that these state filial responsibility laws apply only to those situations where elder or ill parents have yet to enroll in Medicaid.

However, this week we have now seen this scenario play out in a Pennsylvania appeals court where an adult son was found to be liable for his ill mother’s $93,000 nursing home bill under Pennsylvania’s filial responsibility law.[1] However, it did not have to be this way if this son had consulted with a Personal Family Lawyer® when his ill mother first needed care.  If the son had contacted a Personal Family Lawyer®, then he would have received the necessary assistance and guidance to have his mother qualify for Medicaid to pay for her care.

Filial responsibility lawsuits like this one will continue and certainly increase in volume as baby boomers continue to grow older.  Additionally, with the costs of long-term care rising (an average nursing home stay now exceeds $200/day), and with increasingly strict Medicaid rules making it tougher for people to receive government assistance, hospitals, doctors and nursing homes may find themselves with more unpaid bills. Under these filial responsibility laws, senior service providers also have the legal right to choose which family members to pursue for the money owed to them.

While these filial responsibility laws do not directly apply to Medicaid recipients, these state laws may force children to pick up their parents’ long-term care costs long before their parents are eligible for Medicaid. Such a step could still shift significant costs from states to families.

As a son or daughter, or elder or ill parent, you are now being forced by the law to plan for your family’s disability, estate planning, long-term care insurance, Medicaid planning, health care decisions, etc.  In fact, some states make it a criminal offense for failing to take care of your parents, which includes liability for unpaid bills, fines and jail time.

If an elder or ill parent enters a nursing home with insufficient funds to pay for their care, adult children should be vigilant about potential claims against their own assets to pay for that care. As a result of these filial responsibility laws, estate planning for both the family’s adult children and elder/ill parents should be considered by all families.

When you work with us, we will formulate an estate plan for you that addresses your family dynamics and these filial responsibility laws so that you and your family’s healthcare road map is clear and your assets remain protected as states wade further into enforcing these new laws.

Without planning with a Personal Family Lawyer®, you will not know what options are available to you to formulate a strategy to address these issues. To help you obtain the insight and planning you need to provide for your loved ones, we are waiving our usual $750 Family Wealth Planning Session fee. Please come and see us right away because planning can take time. Call (949) 260-1400 for immediate assistance.

[1] See Health Care & Retirement Corporation of America v. Pittas (Pa. Super. Ct., No. 536 EDA 2011, May 7, 2012)