Some 30 states (including California) currently have laws making adult children responsible for their parents if their parents can't afford to take care of themselves. These “filial responsibility” laws have rarely been enforced, but six years ago when federal rules made it more difficult to qualify for Medicaid (Medi-Cal in California) long-term care coverage, some elder law attorneys predicted that nursing homes would start using the laws as a way to get care paid for.
There has been a recent stir in Pennsylvania regarding one man being forced to financially care for his ailing mother. As a recent Pennsylvania appeals court case dramatizes, many of us with elderly loved ones receiving expensive care may just end up footing the bill.
The case is Health Care & Retirement Corporation of America v. Pittas (Pa. Super. Ct., No. 536 EDA 2011, May 7, 2012), and the law at issue is a type of “filial responsibility law” on the books in as many as 30 states. Both the case and the law were addressed in a recent blog post titled “Son Liable for Mom's $93,000 Nursing Home Bill Under 'Filial Responsibility' Law.”
If you haven’t yet heard of “filial responsibility,” it is the cornerstone of Confucius’ Analects, the Bible, and much of modern estate law. That noted, in this Pennsylvania case and the laws of numerous states, filial responsibility is a way to ensure someone comes up with the payment.
In this Pennsylvania case, John Pittas’ mother entered a nursing home after a car crash and later left both the nursing home and the country once she recouped. She recovered well before Medicaid was able to process her application and assume payment for the nursing home. As a result, the nursing home saw $93,000 appear in its accounts receivable column.
Rather than wait for Medicaid to consider payment, the nursing home filed a lawsuit against Mr. Pittas for his mother’s bill under the state’s filial responsibility law. Note: the nursing home didn’t care that there were a number of family members – other children and a spouse – and neither did the court. Why? Because under the doctrine of filial responsibility, the nursing home could simply pick its target to receive payment, and they chose John Pittas.
While this horror story is specific to Pennsylvania law and its court system, the basic concepts of this law and its application are shared by many states. It is important to note, also, that this case only existed because Medicaid (or Medicare) hadn’t reviewed and approved the bill. If Medicaid (or Medicare) had paid the tab, then the no claim would have been established against John Pittas.
Here in California, our Family Code (at Sec. 4400) states "Except as otherwise provided by law, an adult child shall, to the extent of his or her ability, support a parent who is in need and unable to maintain himself or herself by work."
As of the writing of this blog post, California has not been enforcing this code section. If you are concerned that California may begin enforcing a child’s filial responsibility and you have an elderly parent who is (or could become) financially dependent on you, you may want to consider the following options:
1) Life Insurance. You may want to look at purchasing life insurance for your parents. You would be the owner of the policy and after your parent’s death, the policy’s benefits could be used to pay final long-term care bills.
2) Long-Term Care Insurance. If you have an elderly parent who qualifies, but cannot afford, long term care insurance, you may wish to consider buying long-term care coverage. There are various types of long term care policies and depending on the terms of the policy, it could help reduce or eliminate the cost of your parent’s care.
3) Review Elderly Parents’ Health Insurance Coverage. Review your parent’s health insurance coverage and perhaps, if you are financially able, pay the premiums for supplemental insurance, as this additional insurance could pay for unexpected costs.
4) Estate Planning. Even a
5) Medi-Cal Planning. Medi-Cal Planning can help a parent from losing their assets to the State. In light of the Deficit Reduction Act (DRA), which has not yet been adopted by California (but will be in the future), your parent should do it now – at least five years before the need arises.
Reference: ElderLawAnswers.com (May 11, 2012) “Son Liable for Mom's $93,000 Nursing Home Bill Under 'Filial Responsibility' Law”