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Pay Your Mom's Nursing Home Bill or Go to Jail - Massachusetts

  
  
  

By Harry S. Margolis

Parents are legally responsible for taking care of their children until they reach age 18.  Spouses are legally responsible for making certain that that their husbands and wives have the basic necessities of life -- food, shelter and clothing. No one seems to question whether these rules makes sense.

But should children be legally responsible for the care and basic necessities of their parents? Does it make a difference if the parents are ill or suffer from dementia? Does it matter what kind of parents they were when the children were young?PearsonK resized 600

According to Professor Katherine C. Pearson of the Dickinson School of Law at Penn State, 29 states plus Puerto Rico have so-called "filial responsibility" laws requiring children to provide support and care to their indigent parents. These laws are survivals from earlier times when almost every state had similar laws. However, the cases brought against children under these statutes have been quite rare. (Click here to read Professor Pearson's article.)

An exception is the recent Pittas case in Pennsylvania where John Pittas was held legally liable for his mother's $93,000 nursing home bill. (Click here to read more abou this case.)

More common are suits against children for bad acts or mistakes rather than their simply being children of parents who need care. Children have been sued by nursing homes for failure to follow through with Medicaid (MassHealth in Massachusetts) applications, under guaranties they may have signed to pay for their parents, for running off with funds transferred to them by their parents, and for funds they transferred from their parents on their own initiative.

Massachusetts is one of four states, according to Professor Pearson, which instead of making children legally liable for their parents' cost of care, make it a crime not to care for indigent parents. Pursuant to Mass. Gen. Law Ch. 273, Sec. 20, any person over age 18 who has sufficient means and

unreasonably neglects or refuses to provide for the support and maintenance of his parent . . . 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 illniss to support himself,

may be punished with a fine of up to $200 or up to a year in prison, or both.

The statute also provides that a child's failure to provide support will not be considered unreasonable if the parent had not provided reasonable support to the child when she was growing up or if the child makes a reasonable contribution but her siblings do not.

We are aware of no prosecutions under this statute, perhaps because the meaning of what's "reasonable" both in supporting a parent in the parent's earlier support of the child is so open to interpretation.  Additionally, when some children live out of state, it may seem unfair to subject to prosecution only the child or children in the state. 

Also, how do we determine whether the parent had any fault in contributing to her poverty? Ironically, under a literal reading of the statute, if the parent impoverished herself by being over-generous to her child, this may exempt the child from prosecution.

Despite the fact that this and most filial responsibility statutes are never enforced, they raise serious questions about familial obligations. What does a child owe a parent? What does a parent owe a child after age 18? What do siblings owe one another, especially when some are much better off financially than others?

Whatever our opinion as to the appropriate answers to these questions, are these matters that should be legislated? In virtually all cases they are not turned into laws and families and individuals do what feels right to them based on their values and experiences.

My guess is that most Americans would agree that this is the best approach.  But would their opininons change if they as taxpayers had to pay for the parent's care while wealthy children are enjoying ski vacations in Zermatt?

The Medicaid program provides that it may recover its costs from the estates of beneficiaries, usually from the value of their homes since they must spend down their other assets to become eligible for Medicaid in the first place. What about similar claims against children?  Of course, we would probably come up with the same objections as those that prevent the enforcement of the criminal statute, questions about the support the parent gave the child, and the fairness of enforcing the claim against the in-state children and not those out of state.

Margolis & Bloom, LLP, practices estate, long-term care and special needs planning in Boston, Dedham, Framingham and Woburn with a strong commitment to client service.  If you have questions about these or other legal matters, do not hesitate to contact us by e-mail by clicking here or by calling us at 617.267.9700.

Comments

Tricky territory, especially because current regulations (well-intentioned as they may be) encourage elders to spend down their assets so that they can be poor, thereby qualifying for Medicaid-paid nursing home care.  
 
These laws perhaps address those issues when significant sums were transferred to the children, when those sums might have gone to the person's own care. But that is by no means the predominant case and the law seems to fail to allow for that.
Posted @ Friday, March 08, 2013 3:26 AM by Jim Reynolds
My estranged father-in-law died after being served poisonous mushrooms. We've not been served yet with a collection attempt by the nursing home. My wife is the sole surviving child. My comment is that no discussion of filial responsibility laws do not address the problem of the relationship of filial responsibility laws to debt statutes of limitations. Are we going to see nursing home debt collections to the 10th generation? Will the nursing home debt collections follow the statutes of limitations for written and oral contracts?
Posted @ Monday, November 04, 2013 2:37 PM by Poisonous Mushrooms
Interesting question. My guess is that the statute of limitations for contract would apply. But I don't know if it's been tested yet. If you have proof of the poisonous mushrooms, your father-in-law's estate should have an action against the nursing home.
Posted @ Tuesday, November 05, 2013 9:23 AM by Harry Margolis
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