Planning for Life

Should a Child be Responsible for a Parent's Long-Term Care Costs?

Posted by Harry S. Margolis on May 12, 2012

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By Harry S. Margolis

Last week, a Pennsylvania appeals court held a son liable for his mother's $90,000 nursing home bill under the state's filial responsibility law.

There are a lot of cases of nursing home's suing children as guarantor's of their parents' bills or because they took their parents' money, but this is the first case of its kind of which I am aware.

Thirty states, including Massachusetts, have ancient filial responsibility laws that are never enforced.  ElderLawAnswers, however, in a prescient article predicted that the more stringent transfer limitations of the Deficit Reduction Act of 2005 would lead to these laws being tested.  Click here to read the article.

The Massachusetts filial liability law reads as follows:

Any person, over eighteen, who, being possessed of sufficient means, unreasonably neglects or refuses to provide for the support and maintenance of his parent, whether father or mother, residing in the commonwealth, when such parent through misfortune and without fault of his own is destitute of means of sustenance and unable by reason of old age, infirmity or illness to support and maintain himself, shall be punished by a fine of not more than two hundred dollars or by imprisonment for not more than one year, or both. No such neglect or refusal shall be deemed unreasonable as to a child who shall not during his minority have been reasonably supported by such parent, if such parent was charged with the duty so to do, nor as to a child who, being one of two or more children, has made proper and reasonable contribution toward the support of such parent.

M.G.L. Ch. 273, Sec. 20

Interestingly, this law is different from Pennsylvania's.  Rather than creating a right for the provider of services to sue the child, it makes the failure to support a parent under these circumstances into a crime. 

It also leaves a lot to interpretation:  What does "being possessed of sufficient means" mean?  Or "unreasonably neglects or refuses"? On whom is the burden of proof regarding these terms and the child's possible defense that his parent provided insufficient support when he was young?  Probably on the child, who might have to dredge up evidence dating back 60 years.

Click here to read more about the Pennsylvania case.

Of course, parents are responsible for taking care of their children until they reach age 18.  But should children be financially responsible for their parents?  Should the law be the same whether the child is a plumber or an investment banker?  Should it depend on how responsible the parent was in raising the child?  Or on their relationship?  Should the law treat families who get together every holiday the same as those who go decades with no contact?  What about the child who provided in-home care, but couldn't do so any longer?

It seems to me that it's quite difficult to write a law in this arena that fits all family situations.  I would make parents responsible for their children until the age majority, but not reverse the obligation.

Topics: long-term care planning, MassHealth

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