Filial Responsibility Laws
Filial Responsibility Laws, also known as filial support laws, are laws that exist in many states across the country. The purpose of these laws is to hold family members financially responsible for the cost of an ill or disabled relative’s long-term care when the relative cannot financially support him or herself. These laws are thought to be a tool to reimburse taxpayers when the government provides indigent care through Medicaid. Actions brought under filial support laws generally claim damages in the amount of the cost of the relatives’ care minus any funds the relative has available. Those funds include any personal income, savings, and income derived from trusts or other sources, as well as publicly funded income such as Social Security and pension income.
These laws are meant to apply to all adult "children" or "recipients" of support, regardless of the family’s dynamics or relationships. Therefore, both biologically and legally adopted children are responsible for supporting parents, and vice versa. Certain family members are exempt from being responsible under these laws: spouses can no longer be sued for providing support, and adult grandchildren have been found to not have a legal obligation to financially support grandparents; however, this may vary from state to state . These laws do not take into account any efforts made by the child to care for the parent during his or her lifetime (as long as the effort was not paid for by the parent).
Filial responsibility laws vary from state to state. Some states do not have them at all (either common law or statute). For those states with these laws, they vary in both language and enforcement. Some states have resolve this issue through the enactment of statutes, while others have decided the matter through common law. While some states will enforce these laws through civil courts, others will limit their enforcement to administrative courts resulting in agency penalties. Other states, such as Pennsylvania, do not require a petition to be filed by a county agency, and have allowed private nursing homes to bring actions against relatives.
Hypothetically, consider an adult child who last spoke with his mother ten years ago. His mother was living in her own home at that time and was living independently. Since then, she has now been diagnosed with dementia and has moved into a nursing home and been approved for Medicaid. Because she had been living independently, she left little to no funds available for her long-term care, and she has become a burden on the taxpayers of her state. The state agency files suit against her son to recoup the money used to care for his mother. The son can subsequently be penalized for the Medicaid costs associated with his mother.
Does Florida Have Filial Responsibility Laws?
Contrary to popular belief, Florida does not have a filial responsibility statute. Unlike some other states, Florida’s Medicaid provision does not establish a third-party liability for the adult child, and there is no associated civil cause of action that can be brought due to the failure to pay for services under Medicaid.
More precisely, in 1979, the Florida Legislature amended the definition of "responsible relative" under Section 409.2554 to provide that: "Responsible relative" means a parent or adult child who has sufficient income or resources capable of supporting a dependent relative who is eligible for assistance under this act, but shall not include a responsible relative if such relative is the recipient of public assistance under this chapter and such assistance constitutes substantially all of his or her income and resources.
However, the Florida House of Representatives later issued a printed document (Folder No. 18) regarding an interim project, and its findings were subsequently published in the Journal of the House of Representatives of the 1984 Session of the Legislature of the State of Florida. In that publication, the Finance & Taxation Committee stated that the document in question was "to provide the basis for discussion by the Legislature in 1985 in connection with attempts to revise Florida’s Medicaid third-party liability statutes."
Under the heading "Parent and Spouse Support," the Committee discussed support obligations of relatives to dependents under Medicaid. In its discussion, the Committee pointed out that: "[Florida] has no law specifically requiring parents to support their disabled children once the child reaches adulthood," and "[i]n addition, there is no law specifically addressing the obligations of children to support their elderly parents." The Florida Supreme Court – in the case of Lewis v. Lewis, 7 So.2d 17 (Fla. 1949) – had prevailed upon the legislature to enact a statute requiring forced support from a man for a major female child, but in response the legislature left unchanged most of the traditional exemptions.
Consequently, the Committee concluded that "the disparity of legal opinion presents an opportunity for a definitive interpretation of Chapter 409, which would provide the Department of Health and Rehabilitative Services with a useful tool for determining eligibility standards."
Ultimately, the Committee concluded that it "endorses a requirement for court-ordered support from a spouse or parent in appropriate circumstances" and that: "The amount derived from such support should be used to offset HRS medical expenditures."
In 1998, Senator Jack Latvala introduced Senate Bill 1212, proposing: "The Legislature finds that the costs of public assistance provided to a dependent person whose parent or adult offspring could have supported the dependent person properly belong to the parent or adult offspring." The Bill also provided that the failure to support a dependent person was subject to a civil cause of action. The Bill, however, remained in the Senate and was never passed.
Unfortunately, other than these earlier attempts by the legislature, Florida has never enacted a law obligating a son or daughter of a dependent person to support the dependent person. Thus, Florida has no duty of support by the parent or the adult children in the context of a Medicaid claim. The Department of Children and Families has thus far failed to seek legislative support for such a change.
Comparison of Florida to Other States
Unlike the majority of states, Florida does not have a filial responsibility law. It does have statutes that permit the attachment of real and personal property to satisfy the charges of the Florida legislature (e.g., statutes relating to mechanics’ liens, etc.). Additionally, a parent may be personally liable for their child’s debt in the following circumstances: (a) guardianship of a minor; (b) adoption of a minor when the adoption agreement provides that the parent will be legally responsible for the minor’s debt; (c) if the debt is guaranteed by the parent in writing; (d) if the debt is assumed by the parent in writing or orally; (e) for a debt against an incapacitated person, if the incapacity was the result of the parent’s intentional conduct; or (f) for a debt incurred after a divorce decree requiring the parent to pay a child’s debt. Exceptions do exist, but the exceptions apply in very limited circumstances. Moreover, they do not appear to have any connection to filial responsibility laws.
Among the states that have filial responsibility laws on the books, there are significant differences in terms of how they are applied. Some states have laws that are only applied to non-specified long-term care services (e.g., Maryland), while others only relate to the cost of hospitalization (e.g., Massachusetts). Additionally, there is also a disparity in terminology and purpose. For example, the laws in Colorado and Pennsylvania are designated as support statutes where reading the language makes it obvious it is a financial responsibility law. In Mississippi, the statute provides: "[t]he children are chargeable with the maintenance of the parent who has a legal settlement in this state[.]" On the other hand, some statutes are somewhat confusing (e.g., in North Carolina "[a] spouse and children are liable for the cost of care…of a parent or other relative…. No other person shall be liable for the cost of care…"). Some require a grant of leave by the court to bring a civil action against the children or siblings. Others contain fairly stiff penalties.
Some states that have a law on the books do not enforce them. North Dakota holds that the state is relieved of filial support if it is not financially possible for adult children to provide support. New Jersey has interpreted to statute as requiring parents to support their children and as such moves forward with the policy of parental support established in the Supreme Court case of N.J. Division of Medical Assistance and Health Services v. Gacqua, 913 F. Supp. 1005 (D. N.J. 1995) ("[p]arents are required to support their children"). Nonetheless, as evidenced by the case of N.J. Division of Medical Assistance and Health Services v. Hager, 2009 WL 902086 (D. N.J.). In Mr. Hager’s case, his children were not responsible for the amount of long-term care received. It is worth noting that because there is no statute on the books dealing with filial responsibility in Florida and because the Affordable Care Act has made it more difficult for Medicaid clients to have their homes exempt from being used for long-term care expenses, the idea of children being responsible for their parents’ debts is becoming more prevalent in Florida. And compared to the wildly varying definitions associated with states like Kentucky (where a son was held accountable for paying his mother’s overdue hospital bill for 22 months of inpatient psychiatric treatment even though she was receiving Social Security disability payments), California (where an appellate court ruled that children could be held responsible for a deceased mother’s overdue nursing home bill even though her children do not live in California), Pennsylvania (where a son was required to pay his mother’s overdue nursing home bill despite the fact that he was not estranged from the mother), it appears that Florida may be one of the few states where an adult child’s home is exempt from the payment of a parent’s long-term care expenses.
Legal Ramifications for Floridians
Their potential imposition could have the following legal fallout for Floridians:
A) Forced to pay unpaid medical expenses for parents.
If this were the case in Florida, and a parent had unpaid medical debts while residing outside of Florida, then a child of the parent who remained in Florida could be sued for those expenses by the creditor. A lawsuit would be initiated against the adult child, with the aim of requiring them to repay the debt. If the child failed to pay, then a lien would be placed against any homestead property that they owned. The creditor would then foreclose on the lien and sell the home to recover the unpaid medical expenses. Even though not strictly required, the creditor would typically go after the child rather than the parent as a means of recovery for the debt, much in the same way that a creditor can pursue marital assets if one spouse owes debts that need to be repaid.
B) Forced to care for parents in their own home.
If a parent needed skilled care, and that care could only be provided by a licensed health care provider, then that adult child could be forced to hire a third-party health care provider to care for the parent in their home . If that child refused to do so, and had assets that made them financially capable of hiring outside help, then their parents could sue them and ask the court to force the child to do so.
C) Forced to care for parents at their own home.
If a parent needed skilled care, and that care could only be provided by a licensed health care provider, then that adult child could be forced to provide that care in their own home. The child could be forced to do so if they owned real property, such as a home. The parent may have to pay rent but may not:
If that child failed to pay the required amounts, then the parents could sue their child to force them to either pay or to provide the required care. Again, if the care could only be provided by a licensed health care provider, then the child would be required to retain that outside help. Alternatively, the court could even be asked to remove the child from their home and appoint a guardian to handle the care in their home.
These are not widely enforced laws; you are not in danger of being sued for the costs of your parent’s skilled care if that care was provided outside of Florida. But it is a risk that you may want to consider if you are considering assisting your elderly parents in moving to Florida.
Ethical and Legal Arguments for and Against Filial Responsibility
The notion that children owe a duty to support their parents is known as filial responsibility, and more than half of the United States has laws on the books that would require children to reimburse the state for certain expenses when a parent needs long-term care and has no other means to pay for such costs.
These laws differ from state to state. Twenty-eight states, including Florida, have some sort of filial laws on the books, although only two states (New Jersey and Pennsylvania) have a law that is actively enforced. The rest of the states that have some sort of law on the books have simply not been challenged in court.
The debate over whether these laws are fair has been ongoing since the 15th century. Advocates argue that these laws prevent children from being "freeloaders" and relieves the burden that would otherwise fall upon the state. The opposition attacks the laws based on fairness – if it were not for the societal norm that expects children to care for their aged parents, filial responsibility laws would not even exist.
Along with the fairness debate is the financial consideration. While it may be possible to turn a blind eye to your 15-year-old son’s decision to flunk out of school and become a professional gamer, it is a lot tougher to disregard a filing by the state seeking reimbursement for 15 years of assisted living expenses.
Some societies take the idea of familial obligation one step further – making it a punishable crime to disrespect your elders. Given our history of lack of respect for elderly members of society, isn’t that something that the United States can agree on?
Planning for the Care of the Elderly in Florida
Planning for Elderly Care in the Absence of Filial Responsibility Laws
Filial responsibility laws, as discussed above, are rarely used, especially in estates of modest means. However, it is important to note that the laws can be relevant when planning for and providing for the care of an elderly family member.
Most often, the concern with support comes from family members of the elderly person. There can be a significant obligation for family members to be the primary care person for an elderly individual. All parties will find this an especially difficult challenge when siblings have moved away or have other personal and professional burdens. It is important to note, however, that the state does not have any obligation to provide for the costs of the care of the elderly family member, regardless of the circumstances.
Most states do not have a filial responsibility statute. Regardless, if your state has a filial responsibility law, you should investigate how that will affect your ability or inability to provide care for the elderly person in your family. These will vary by state, but a few are highlighted below.
Colorado – In Colorado, such a cause of action may be asserted by a creditor seeking recovery for costs incurred in providing care for an elderly family member. It is deemed a misdemeanour and the defendant must appear in front of a district attorney. The collection may not exceed $1180, the equivalent of six months support.
Indiana – The law applies to providing support to a parent, spouse, or other needy relatives, and does so by holding that a person shall provide support to the extent that the person has assets or income sufficient to meet the needs of the family and the needy person.
Louisiana – Unlike many other states , Louisiana does have a contractual obligation to provide support to elderly individuals. While the law only requires support of approximately $90 a month, the legal obligation is binding.
In Florida, there are several programs and resources available for families with elderly relatives within their state. Generally speaking, there are roughly 300,000 elderly in Florida with annual expenditure on elderly care reaching $13.5 billion. Much of this is borne by the Florida state government and, over the last few years, the state has begun to offer more services to the growing population. This includes funding crisis services and supporting local community services through the Florida Affordable Housing program.
Options available in Florida include both community care and Medicaid. For those who qualify, community care services act as a Medicaid funded diversion from care in a nursing home. A prospective recipient must apply for the program and undergo a number of assessments to determine their needs. Assuming they qualify, a service package will be assembled which will include case management, personal care, in-home services, congregate living, transportation, and emergency alert systems among others.
Medicaid is funded through both state and federal sources and is a need-based program, which does not take into account familial relationships. More specifically, the program does not impose a legal obligation for personal support, and it is open to any qualified individual in need.
The Florida Department of Elder Affairs also offers Eldercare Locator for those who wish to contact elder care referral agencies in their area. There are also numerous senior resource guides online.
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