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Q. My mother has had dementia for the past three years. As her condition is getting worse, we’re having trouble caring for her at home. I heard recently that if she goes into a nursing home and she can’t pay, then the nursing home can come after us (her children) for the money. Is that true? The reason I ask is that I read about cases where nursing homes came after a patient’s children for over $200,000 after their mother was unable to pay.
I read that Maryland repealed their filial responsibility laws three years ago. What is the status in Virginia? We plan to find a nursing close to our home in Northern Virginia. Thanks for your help!
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A. In a growing number of cases, adult children are being held legally responsible for their parents’ nursing home or other care expenses. The reason for this is that more than half of U.S. states have “filial responsibility” laws making adult children to financially responsible for their parents’ necessities of life when the parents do not have the means to pay for such necessities on their own.
As discussed in many of my articles on the subject, for family members, the consequences of such laws can be severe. A 2012 Pennsylvania court decision ordered an adult son to pay roughly $93,000 to cover his mother’s unpaid nursing-home bills. Families who don’t wind up in court are still being threatened with legal action if they don’t pay a loved one’s bills. Court decisions such as the one in Pennsylvania and others have prompted more long-term care facilities to mention filial responsibility laws in letters demanding payment from residents’ families, elder law experts say.
Filial Responsibility Laws Date Back to the 16th Century
State filial-responsibility laws can be traced back to 16th century English “Poor Laws,” which created an obligation for financially able family members to support indigent relatives as an alternative to the public welfare system. At one time, nearly all U.S. states had such laws. But starting in the 1960s, some of the laws were repealed — and those that survived were largely ignored.
However, in recent years, as more seniors are living for many years with dementia or other chronic conditions requiring costly long-term care, filial responsibility laws have been known to be enforced more often.
Depending on the state, filial-responsibility lawsuits may be filed by a parent or other family member, or by a third party, such as a long-term-care facility, that has an interest in the individual’s care. In some filial-responsibility cases, siblings are suing each other. In one case (Eori v. Eori), one brother in Pennsylvania sued another to obtain a filial-support obligation of $400 per month to help pay for the long-term care needs of their seriously ill mother. The plaintiff son, who provided much of the mother’s care at his home, demonstrated that his mother could not pay all of her costs and needed financial assistance. The defendant son argued that their mother did not have any outstanding medical bills and was, therefore, not indigent. The court ruled that the filial responsibility law does not require a showing of unpaid bills or liabilities to justify a claim.
In another case, this one in Virginia, a brother who had run his mother‘s finances into the ground, sued his sister to hold her liable for his financial mistakes.
Filial Responsibility Laws Were Repealed in Maryland in 2017
As you mentioned, Maryland repealed its filial responsibility law back in 2017.
The arguments for repealing the law were that filial responsibility laws were a holdover from Elizabethan times, and that a parent’s failure to exercise sound financial discretion should not burden the parent’s adult children. To read the full repeal, click here.
The Status of Filial Responsibility Laws in Virginia
Under Virginia Code section 20-88, “joint and several liability may be applied to any person of ―sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her [parent, if such parent is] in necessitous circumstances.”
Virginia Code Section 20-88 was enacted in 1920. It imposes an obligation on persons 18 years of age or older, to provide for the support and maintenance of his or her mother or father, if: (1) after reasonably providing for his own immediate family, the child is of sufficient earning capacity or income, and (2) the parent is then and there in destitute or necessitous circumstances.
According to an article by Sylvia Macon titled, “Grow Up Virginia: Time to Change our Filial Responsibility Laws,” published by The University of Richmond, this statute carries serious implications. She made various good points in the article, as follows:
- Unlike child support laws, where federal law requires enforcement in all fifty states, it is unclear whether an adult child living outside of Virginia would be liable. State courts have been in conflict on whether other state filial responsibility laws apply to their citizens.
- The law‘s language is open to interpretation, leaving practitioners with little guidance.
- With the implementation of Medicare and Medicaid in the last century, the statute‘s very purpose—to provide a safety net for the aging and indigent—no longer carries the same urgency, leaving the statute open to exploitation for matters of sibling rivalry or parent-child conflicts, rather than providing a social good.
Ms. Macon did note in the article that “Virginia‘s implementation of section 20-88 so far has only involved private actions; there are no recorded cases of the Commonwealth suing an adult child on behalf of an agency.”
For the reasons described above, Ms. Macon believes that Virginia should act preemptively to either repeal or amend the statute, but this has not happened yet, nor is there any movement afoot to repeal or modify this statute.
Plan Ahead So You Don’t Fall Victim to Filial Responsibility Laws in Virginia
Without proper planning and legal advice from an experienced elder law attorney, such as myself, adult children may very well be on the hook for tens of thousands of dollars of care required by their aging parents. The only way you can make sure you do not fall victim to a filial support action is by planning ahead. Children have to be proactive regarding how their parents are financing their long-term care. Some families of modest means may assume Medicaid will cover a parent’s care once the parent has depleted savings and other resources. But it’s a huge mistake to assume that Medicaid will be easy to obtain.
Medicaid laws are the most complex laws in existence, with 8 separate bodies of law (4 at the Federal level and 4 at the state level) dealing with Medicaid and Medicaid eligibility. To do proper Medicaid asset protection planning, families need the help of an experienced elder law attorney, preferably a Certified Elder Law Attorney such as myself. Whether you or your parents are years away from needing nursing home care, already in a nursing facility, or somewhere in between, the time to plan is now, not when your parents are about to run out of money. Call us to make an appointment for an initial consultation:
About Evan H Farr, CELA, CAP
