Filial Responsibility Laws: What Are They?
Filial responsibility laws generally impose a legal duty on one generation to care for the previous generation, and allow the government to shift the cost of care onto a family member – typically an adult child – when the government has paid for a covered individual’s care . The purpose of filial responsibility laws is to provide for the care of elderly individuals by their children, under an assumption that children are able to care for their aging or ill parents and are responsible for their wellbeing and financial support.
Massachusetts’ Current Position on Filial Responsibility Laws
The current status of filial responsibility laws in Massachusetts can be summed up by the admonition that "the law is no more than a sentence in a book." For as long as one can remember, some variation of the Massachusetts filial responsibility law has provided that a child is responsible for supporting his or her destitute parents.
And so it was for many decades. Some estimates put the number of cases brought under the filial support statutes at over 200 per year in the mid-1940’s. Among those who were held liable for parent support obligations in Massachusetts in those years were not only the wealthy, but even struggling immigrants.
As the years have gone by, however, the filial support provision has largely faded from the radar of courts, lawyers and the department responsible for enforcement, the Department of Revenue. Other than a handful of cases decided since 1991, there are no reported decisions involving the filial support law in recent memory.
In the last ten years, the Department of Revenue has collected an average of less than $2,000 per year under the filial support statute. In a 2010 letter to the Massachusetts Senator Stephen Brewer, the Respondent’s counsel wrote that the Department, once vigorous on the issue of filial support, had lost all interest in the statute.
There are many reasons, I assume, for the lack of interest, but it seems likely that the most significant reason is that we have a social safety net today which did not exist in the past. Long term care Medicaid is the safety net of last resort for the elderly and disabled persons going back at least as far as 1965. And, for the poor, Medicaid planning has become big business for many elder law practitioners. It is safe to predict that the consequences for a child of failing financially to support a destitute parent will remain small enough that little time will be spent in planning for such an eventuality.
In any event, as a practical matter, it can safely be said that the Massachusetts filial support law is today all but meaningless.
Massachusetts Compared with Other States
The majority of states have yet to enact filial responsibility laws, including Massachusetts. However, a handful of states such as Pennsylvania, North Carolina, New Jersey, and Maryland, have adopted strict filial support laws that impose an affirmative duty of support on adult children. These laws require certain relatives to provide financial support to financially needy individuals. While some of these laws are not currently being enforced, there is potential for their enforcement and for their expansion into other states. And unlike Massachusetts which has no laws specifically addressing the recovery of certain costs from responsible relatives, let’s take a look at a few states that have expressly created this as a separate cause of action against certain relatives.
As stated in the previous section of this article, Pennsylvania is one of the states with the strictest forms of filial responsibility laws, which allow the state Department of Human Services to impose an obligation to pay for certain types of support on financially secure relatives of indigent persons, including adult children. In Pennsylvania, creditors may collect from responsible relatives for the cost of care provided to the senior to the same extent that the credit could have been collected from the provider of the care. The amount sought will vary by the type of care, but generally, the following amounts can be recovered: (1) if skilled or intermediate nursing care was provided, the defendant is liable for $200 per month until paid in full (42 Pa. Cons. Stat. § 1409); (2) if the person received care in a personal care home, the defendant is liable for $1000 per month until paid in full (42 Pa. Cons. Stat. § 1409); (3) if the person received partial supports and services in the home, the defendant is liable for $500 per month until paid in full (77 P.S. § 903); and (4) if an individual receives partial supports and services in the home that do not exceed 320 hours per quarter, the defendant is liable for $500 per quarter until paid in full (77 P.S. § 903).
Another state with similar filial responsibility laws is North Carolina, which provides that a spouse, adult children, or parents of an "indigent person" can be held liable for the costs of medical, hospital, or nursing home services. N.C. Gen. Stat. § 35-2-210. In order to initiate an action against a relative in a state with filial responsibility laws, the Dept. of Social Services must determine that the relative is financially able to pay a specific amount, and the petition must include supporting financial information about the relative. W. Virginia Code Ann. § 9-5-12 and § 9-2-10.
While Massachusetts does not have a specific statute addressing filial responsibility, the age-old common law rule of necessaries still exists in many states, including Massachusetts, and can be used against those that have contractually undertaken the duty of necessities, such as a spouse, guardian or conservator. Many states, including Maryland, have statutes that expressly address the putative child’s obligation to repay the nursing home for services rendered in accordance with the reasonable value of such services. Md. Code Ann., Health Gen. §20-1008. Even states that do not have a statutory provision in place to this effect, have recognized a claim by the nursing home against the child for nursing home bills. See In re Smith, 535 A.2d 856, 859 (Md. Ct. Spec. App. 1988) (nursing home could sue child of decedent for debt accrued at a time when the daughter had the ability to pay).
These examples show that unlike Massachusetts, some states have created legislation regarding filial duty and pursued enforcement of the common law rule of necessaries. In the future, there is the potential for expansion of these types of efforts into other states, including Massachusetts.
Massachusetts Families: What You Should Know
Filial responsibility laws can have a significant impact on families in Massachusetts. If an elderly parent requires nursing home care, and is unable to pay for it, the state may turn to the adult children for payment, if the income and assets of the parent are insufficient.
The first, and most important, implication for Massachusetts families is financial: If an elderly parent has insufficient resources to pay for nursing care, the children may be held liable for all or a portion of the costs of said care. The financial implications of §71 could be huge in a high-cost state like Massachusetts, and having an attorney negotiate on your behalf if you are contacted with such demands from the government is critical to ensure that the amount requested or claimed by the government is the actual amount owed.
The second, and related, implication is legal: Chapter 119 of Chapter 224 of the Acts of 2012 amends Section 5 of Chapter 118E of the General Laws of Massachusetts to include a statute of limitations . The amendments also clarify the procedures that a creditor must follow to obtain a remedy under the filial responsibility law. (See https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter118E/Section5 for the text of this amended law.) This change limits the liability of the adult child to only roughly the previous three years of care (and what they can show to have been necessary) and relieves the burden of proof of proving the adult child intentionally failed to provide care.
At the heart of filial responsibility laws is often an emotional and moral quest for what is right, for both the Commonwealth and children of the elderly. Balancing the financial needs of the state with the emotional needs of the family can be a matter of great importance to both. Knowing whether and how to balance these needs, especially when good faith attempts at family support go unrewarded by the Commonwealth, is essential to protect both family members and the elderly.
Get Legal Help and Resources
Navigating the complexities of Massachusetts filial responsibility laws can often be daunting for individuals and families, but fortunately, there are resources available to assist those seeking guidance and support on this topic. The Massachusetts Bar Association (MBA) is one such resource. With a wide range of experienced attorneys in the field, the MBA can provide assistance to those in need of legal guidance and representation. To find an attorney, one can visit the MBA’s Lawyer Referral Service, which is a free service that matches individuals with lawyers based on their specific legal needs. Another organization that can be helpful to those confronting filial responsibility issues is the National Association of Elder Law Attorneys (NAELA). NAELA is a professional organization for attorneys who specialize in elder law. This group regularly offers support to individuals navigating elder law issues, including estate planning and guardianship matters, as well as filial responsibility. Individuals may also consider consulting with legal aid services in their area. These organizations offer free legal help to people who cannot afford an attorney. Those seeking legal aid in Massachusetts can find local legal aid information on the Greater Boston Legal Services website or the Massachusetts Legal Assistance Corporation website. For those in nursing homes or assisted living facilities, staff at these establishments often have experience dealing with "filial responsibility" issues and can help guide individuals in the right direction in finding legal assistance or support with issues related to elder care costs. Finally, the Massachusetts Department of Elder Affairs provides a variety of resources and support to seniors and their families. The organization’s website hosts a list of programs and services to help individuals cope with the challenges of elder care. In summary, a number of resources exist in Massachusetts to help individuals seeking guidance regarding issues associated with "filial responsibility." From private attorneys to statewide governmental programs and services, legal assistance and resources are readily accessible.
Look Toward the Future – and Ask Questions
Discussion and Future Considerations
There is currently a discussion taking place on whether or not Massachusetts should join the majority of states that have enacted filial responsibility laws. There is an ongoing concern amongst Senator Tarr and Representative Kirby with respect to Medicaid fraud and the misuse of federal funds that could be used to support the social service safety net provided by Massachusetts. The concerns of these legislators primarily relate to those individuals who would rather take the risk of being found liable for their predilection for avoiding filial responsibility by refusing to pay their parents’ medical expenses and accepting the risk that the Commonwealth will be forced to prosecute them . These legislators are concerned that more Massachusetts residents will only care about such legal consequences if Massachusetts starts enforcing filial responsibility laws, which could result in parents and their adult children becoming embroiled in unpleasant litigation. The proposed legislation that has been developed seeks to strike a balance between the provision of support and the equitable sharing of the costs amongst the siblings.
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