Adult Children, Aging Parents and the Law

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By Jane Gross

Are children legally responsible for their parents’ care? (Susan Farley for The New York Times)At the end of my mother’s life, for six months, a year at most, Medicaid paid for her care in a nursing home. She was broke by then, after living on a pittance since she was widowed at 58, using the proceeds from her house to pay for six years of assisted living and part of her nursing home stay and never seeing a penny from a long-term care insurance policy that cost a bundle but covered none of what she needed. She had given my brother and me no up-front money to hasten her eligibility for Medicaid and died with $26 to her name and nothing to leave to her children. The good news was we didn’t even have to put her will in probate.

I share that so everyone will know that my mother wasn’t the elderly equivalent of a welfare queen. She played by the rules and earned a government handout the old fashioned way, and I never felt a second of guilt that Medicaid was footing the bill for her last miserable months on earth. That said, I sometimes wondered why adult children weren’t legally responsible for their parents’ financial support, assuming they had money in the bank. Don’t get me wrong; I didn’t want to pay for her $14,000-a-month (yes, $14,000) nursing home bill. But I could have, if truth be told, at least for a while.

So it fascinated me to learn that in 30 states, (PDF of 30-state list) adult children are legally responsible, at least on paper, to pay for necessities like food, clothing, shelter and medical attention for indigent parents. These statutes, known as filial responsibility laws, are modeled on the Elizabethan Poor Laws of 1601, which made blood relatives the primary source of support for family members, the elderly included. Public assistance was available only as a last resort.

The American colonies had similar laws to England’s — and they were enforced — until the advent of the New Deal, which created the Social Security system, intended to provide 45 percent of a worker’s pre-retirement wages. That would keep mom and dad afloat in the good old days. Civil or criminal cases seeking assistance or reimbursment from adult children all but stopped. But, even more significant to the quiet passing of filial responsibility was the introduction of Medicaid, in 1965, a pillar of the Great Society, which had eligibility requirements that seemed at odds with the existing state laws, even though courts had upheld their constitutionality.

Since Medicaid is an entitlement, not a program everyone pays into like Social Security or Medicare, the Federal government defines eligibility. And Federal law prohibits state Medicaid programs from looking at the finances of anyone other than the applicant or the applicant’s spouse. When the elderly exhaust their assets, individually or as a couple, the government steps in and pays for their long-term care. Adult children are not part of the Medicaid eligibility equation.

But Medicaid is in big trouble — cutting here, squeezing there — and will be inundated when baby boomers reach old age. The staggering cost of long-term care and the explosion in the number of people who will need it has prompted a second look at filial responsibility laws as a way to deal with the impending crisis. The National Center for Policy Analysis, a conservative policy group, identified contributions from adult children as one solution to increasing expenditures and insufficient revenues in a 2005 issue brief. A few law journal articles followed, most recently one earlier this year in The Elder Law Journal.

The more temperate arguments about holding adult children responsible take into account the competing demands on their savings, if they have any, including college tuition and impending retirement. Also, most proponents of enforcing filial responsibility laws would exempt those who were abandoned in childhood and see to it that one sibling doesn’t get stuck while the others skip town.

Among the most thought provoking ideas in the journal articles are these from Allison E. Ross, in “Taking Care of Our Caretakers: Using Filial Responsibility Laws to Support the Elderly Beyond the Government’s Assistance.’’ Would enforcing these laws encourage families to plan for the costs associated with the end of life, as they do for the costs at the beginning? Would the transfer of assets from parent to child as an inheritance protection plan stop if the children would then have to spend that money on their parents? And would the quality of life for the institutionalized elderly improve if adult children supplemented rather than replaced the government’s support? That’s what most of us do informally anyhow.

From Jane: I have replied directly to some of the comments below but also wanted to offer a general clarification. It was not my intent to suggest that filial responsibility laws were fair, wise or likely, in this day and age, to ever be enforced again. I simply was interested, personally and intellectually, in exploring whether such laws existed now or ever had and, if so, whether there was any movement, however limited or far-fetched, to revisit the question under current conditions vis a vis Medicaid.

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