Utah is one of about thirty states that have filial responsibility laws. With a few exceptions, these laws require that children provide necessities for their indigent parents. Necessities may include food, clothing, shelter, and medical attention.
Utah’s filial responsibility statute states, “Children shall first be called upon to support their parents, if they are of sufficient ability; if there are none of sufficient ability, the parents of such poor person shall be next called upon; if there are neither parents nor children, the brothers and sisters shall next be called upon; and if there are neither brothers nor sisters, the grandchildren of such poor person shall next be called upon, and then the grandparents.” (Utah Code Ann. 17-14-2) In short, children have a filial responsibility to take care of their parents.
Filial responsibility laws in the United States were likely influenced by the Elizabethan Poor Relief Act of 1601. This old English law required relatives (grandparents, parents and children) to provide for, relieve and maintain their poor, old, blind or otherwise disabled family members who were not able to provide for themselves.
Prior to 1960, filial responsibility was required by forty-five states and was recognized by federal legislation as well. Then, when Medicaid was passed, some states repealed or stopped enforcing their filial responsibility laws because Medicaid and other need-based programs prohibited states from considering the assets or financial responsibility of non-spouse individuals in determining applicant eligibility.
While these laws have not been enforced in years past, as need-based government programs are being threatened by insolvency and uncertainty, there appears to be a trend that states with filial responsibility laws are beginning to enforce them. Take, for example, a Pennsylvania Court decision in May 2012 to hold an adult son liable for a $93,000 medical bill his mother incurred for skilled nursing care and treatment she received from a Pennsylvania facility. (Health Care & Retirement Corporation of America v. Pittas (Pa. Super. Ct., No. 536 EDA 2011, May 7, 2012))
The Pennsylvania case demonstrates that nursing homes, hospitals, governments or certain third party may be able to file a lawsuit against you in states that allow it, seeking a judgment that would obligate you to pay your parent's, sibling’s or even your grandparent’s bill. States, nursing homes, and assisted living facilities have recently used filial responsibility laws to collect the cost of care from adult children.
Admittedly, it would be expensive for states or the Federal Government to monitor and enforce filial responsibility laws. In addition, enforcement of these laws would further encumber an over-burdened judicial system, but if need-based government programs are no longer available, what other decision could be made without discontinuing these vital services?
So, what can be done? If you are the child of an aging parent you should help them consider their risk of incapacity. Depending on that risk you may want to help them plan for long-term care. Some aging parents remain functional enough that their children can provide assistance to them while they live in their own home. Some parents finish their lives in the home of a child or sibling. For some aging parents an assisted living facility or care center may be the most appropriate option. Each of these scenarios has associated benefits and costs that should be carefully considered. As the world of Social Security and Medicaid continue to change it is important to stay abreast of those changes and to understand the current benefits available to the aging and incapacitated population. Additionally, long-term care insurance is always worth considering.
Regardless of the existence of Medicaid and other need-based government programs or whether states or the federal government will continue the trend of enforcing filial responsibility laws, proper long term care planning and legal advice from an experienced estate planning or elder law attorney can help ensure that the needs of our aging population will be met while reducing children’s’ burden of providing the expensive care required by aging parents.