Filial Responsibility: What Is It?
Filial responsibility laws have a long history in the United States. In fact, a number of states had such laws as far back as colonial times. While some U.S. states have got rid of these laws, others continue to have them in place. The only differences you’ll find in these state laws have to do with the actual regulations. Generally speaking, these laws hold adult children liable for the expenses of their parents. With elderly people increasingly entering long-term care, this could be a huge financial expenditure.
What do you need to know about filial responsibility laws? Even within states that have fastened onto these laws, the number of states still on-board is only 30. While these states may have similar laws, the wording differs from state to state. Pennsylvania, for instance, has one of the toughest laws. Within that state , child support laws may force adult children to pay for the room and board of a parent or an adult sibling.
Filial responsibility laws don’t just apply in relation to long-term care facilities. By these laws, adult children may also need to repay other types of care provided to their aging parents like:
If you don’t adhere to these laws, you could find yourself facing a court order to repay funds. While you might not agree with or even be aware of your potential liability, courts will not listen to your excuses. In fact, even when you have a written agreement with your mother or father stating your parents will be paying for their own expenses, the court will often consider that written agreement "disregarded." In that case, the care facility will then turn to you as an individual with the means to pay for the expenses. That money will then go to reimburse the care facility.
How Florida Approaches Filial Responsibility
Florida is a state that does not have any filial responsibility laws. In fact, in 1971, the state Supreme Court decided that "an adult child has no duty to support his indigent parent in the absence of statute." Following up on this decision, the Florida Legislature has passed laws that protect children from being sued for their parents’ debts. In a 2007 court case, the Supreme Court of Florida reiterated its position on the indisputable elimination of filial responsibility in the state.
There are no exceptions to this rule; Florida provides no recourse for a creditor who is owed money by a senior, living or deceased. This lack of filial responsibility creates a system of self-reliance for aging seniors who can no longer afford the cost of living and other medical expenses. On the other hand, it places the burden of caregiving directly on the adult child, as he or she cannot count on any help from the grandparents.
Although long-term care is expensive and unaffordable for many Americans, the lack of a safety net for seniors means more and more adult children must take on the burden of caring for a parent, without any financial assistance.
Impact on Families and Caregivers
The existence or non-existence of filial responsibility laws can have far-reaching implications for families and caregivers. They may influence the decision making for concerned adult children as well as the medical care decisions for aging parents.
Financial Implications
For many adult children, familial obligations directly affect financial planning for both the aging parent or spouse and the adult child. Will gifting money to an adult child, to pay for the parent’s care, be considered "income" or a gift? Are there gifting limits, and do they vary by state?
These are questions that are complicated by the fact that some states currently enforce their filial support laws while others, such as Florida, do not. In states that enforce these laws, caregivers can face significant legal and financial implications.
Emotional and Relational Implications
Implications aren’t limited to the financial realm, however. The existence of filial laws can affect the relationships between adult children and their parents, causing substantial emotional and relational stress. For instance, should an adult child refuse to provide financial support for an aging parent, the parent could effectively disown the adult child and make alternative arrangements for their care.
Or, if there is disagreement among siblings about the financial responsibilities of some adult children to other siblings, it could cause a rift in the family for generations. Family members may also be forced to care for their parents, regardless of the negative consequences on their finances, work-life balance, and overall quality of life.
Legal Implications
A third critical implication is in the area of the law enforcement of these filial responsibility statutes. For example, some laws don’t sufficiently define the concept of financial support. This presents significant challenges in both adhering to and enforcing these laws.
How much maintenance must one sibling who has lived with a parent provide before other siblings can legally be considered liable for the care of the parent? What if a sibling offered the parent a place to live but he or she declined? Are the siblings then free from all obligations?
Capable adult children may be forced, either financially or emotionally, into providing round-the-clock care for their elderly parents, putting their own health and financial security at great risk. Adult children who are unable or unwilling to take on such a care-giving role may face significant legal and financial consequences from the state. In short, filial support laws can have a major impact on all adult children of aging parents who either need or actively provide care for their parents.
How Florida Compares to Other States
Six states have active filial or long-term care responsibility laws: California, Connecticut, Indiana, Kentucky, Massachusetts, and Pennsylvania. While less common, there are also a handful of other states that still have these types of laws on the books but as of now have not sought to enforce them.
Most of the active states have pursued their laws vigorously, issuing huge judgments. Collectively, they’ve totaled into the tens of millions of dollars. Pennsylvania was particularly aggressive in the enforcement of its law, reportedly bringing over a hundred filial enforcement lawsuits.
However, not all states have been so assertive in recent years. In fact , some states have never enforced their filial law, and others have actively resisted such efforts. In Ohio, both the state attorney general’s office and an Ohio appellate court have refused to enforce its law. Perhaps more surprising, in spite of the large number of cases sued upon by the Pennsylvania attorney general, the Pennsylvania Superior Court found its law unconstitutional, in part because it violated both the 8th Amendment prohibition on excessive fines and the Due Process Clause of the 14th Amendment, which precludes the imposition of criminal liability for failure to support a spouse that is not delinquent.
Legal Controversies and Considerations
Enforcement of filial responsibility laws, when appropriate, may be costly, as well as time-consuming. Particularly when someone has been placed in a nursing home by a relative, and a court must order the relative to pay for all or a portion of that resident’s care when they fail to do so voluntarily, there is certain to be a substantial reaction from the relative that may need to be contained. There are obviously a number of defenses to a court lawsuit demanding that he or she make ongoing payments to a nursing home, if there is in fact a case filed. First, the individual may argue that he or she does not have the financial means to pay for the cost of a nursing home, at least in part. Second, the adult child relative owed the money may argue that they do not have the financial means to pay the costs as they are requested, in short, they cannot pay as much per month or as high a total amount as is being requested, or a combination of the two.
Because Florida’s legislation is in the initial stages of implementation, there have not yet been identified court cases arising out of a filial responsibility lawsuit in Florida. However, there have been numerous instances in other states in which a relative has refused to pay for care of an elder parent or relative, thus requiring a court to have to decide issues such as whether the relative had sufficient income to pay the cost of care or whether the relative had significant other debts that would preclude or limit the repayment of the nursing home. One such state with a long history of filial responsibility lawsuits is Pennsylvania which has a number of older, well-developed cases on the issue of who is responsible for payment and for what portion.
Newer cases from New Jersey and Maine offer more recent examples of the types of issues likely to face Florida courts in implementing this new law. In particular, a 2009 New Jersey case involved the question of whether a son was responsible for the full payment due to the nursing home under a detailed contract that was entered into between the nursing home and the daughter of the patient/resident. This contract was signed when Medicaid was being considered as a potential government payment option to cover the nursing home bills. However, it was determined after the fact that the nursing home was mistaken in its understanding of how the contract had "hybrid" terms (in other words parts of the contract did not comply with the law) and thus no filial responsibility requirement arose under the contract. Though this case appears to be more beneficial to those relatives who are able to read and understand a contract, it does raise the issue of what types of contract terms will clearly impose responsibility on a family member for an ongoing course of payments and what types of terms are sufficient to exclude legally imposed responsibilities.
The Maine case, by contrast, involved a dispute between the United States government and the state of Maine as to who had responsibility for paying for a particular resident’s nursing home care. Maine brought a lawsuit against the federal government under the state law that imposed a legal obligation on relatives to pay for the care of an indigent relative. When the trial court dismissed the case, Maine appealed to the Supreme Court. The Supreme Court held that states can pass and enforce filial responsibility statutes against resident’s relatives (including minors) without run afoul of the United States Constitution.
Until such time as Florida courts can offer more guidance on the implementation of the new law, there are likely to be many unresolved legal questions that will need to be worked out in litigation.
Tips for Those in Florida
Families in Florida should be aware of the filial responsibility laws and the potential consequences that arise from these laws. If a parent resides in a nursing home or assisted living facility and their financial resources are insufficient to pay for the cost of care, the facility may seek payment from family members under Florida’s filial responsibility statute. So what can you do to protect yourself? First, you can check Florida’s Department of Elder Affairs database to find out if your parent is receiving a subsidy. If you discover that your parent has been awarded a subsidy, it’s possible that the assisted living facility will be requesting payment from family members. You might then decide to make a partial payment to avoid a collection action . However, making a partial payment does not necessarily insulate you from liability. The assisted living facility could still come back and seek payment of the balance owed. You could also start saving your money in the event that the assisted living facility makes a demand upon you. There are also planning techniques that can be utilized to protect against the risks associated with filial responsibility, including the use of irrevocable trusts. Although there is no way to completely prevent a claim from being brought against you, utilizing these techniques can help tremendously. In addition, having a strategy to deal with filial support claims, as well as hiring the right legal counsel to help develop that strategy, is crucial to minimizing any potential negative consequences.
