What are Filial Responsibility Laws?
Filial responsibility laws are statutes that impose a legal obligation on adult children to financially support their indigent parents. Comprising only a small number of states in the U.S., these laws individually vary in terms of their scope and enforceability, depending both on each state’s particular filial responsibility statute and the factors that govern its implementation. Less than proactive in enforcement, California may have taken steps to keep its own filial responsibility law on the back burner, but those who strive to provide the best possible long-term care for aging parents may want their state to heat up one way or the other. With such a wide range in the implementation of filial responsibility laws, it is difficult to generalize across the board. As more and more children are becoming responsible for the long-term medical costs of their aging parents, however, certain trends can be observed. In most states, for instance, children can be held responsible for the debts of their parents regardless of the child’s financial status. The only exceptions are in states where non-payment of parent debts can be exempted on the grounds of grave financial hardship to the child. Yet to be universally accepted are two views of filial responsibility laws in regard to the category of financial responsibilities they enforce. Some states consider these statutes to be a means of asking children to voluntarily assume the long-term care costs of their parents, while others view filial responsibility laws as a tool for automatically obligating children to pay . In terms of state initiatives, the effort to enforce filial responsibility laws has been scarce and inconsistent. Seemingly designed with the goal of alleviating the financial burden long-term care costs place on government programs, enforcement of filial responsibility laws has typically occurred within strict boundaries, targeting a child -or a problem individual amount a set group of siblings- when it has been deemed from available information that the child in question is the most capable of providing parental support. At least 27 states have unenforced filial responsibility laws that are technically on the books, but have been dormant for decades. In these states, there have been on-record cases where, due to lack of enforcement, the state’s filial responsibility law has had no bearing on siblings’ financial liability for parental debts. The enforceability of filial responsibility laws also varies by state in terms of what period of parental service is considered to create the child support obligation. In the years when a child was living at home and was economically dependent on a parent, all personal savings were being put toward medical bills. Now that the child is financially independent, he should be able to receive a means testing exception to filial responsibility laws. Regardless of the state law, however, most courts agree that a child can be held responsible for no more than the amount that has already been determined to be necessary for long-term care.
California’s Filial Responsibility Statute
California has no filial responsibility laws. An adult child could be held financially responsible for the costs of a parent’s care, however, only if: (1) liability is based on contract (a contract between the parent and child or another party); (2) liability is based on an inter vivos (between the living) or testamentary (between the dead) gift or inheritance; or (3) the child failed to support the parent in the past and the state is asserting a claim under its laws.
If an adult child signed a financial agreement with the parent linked to the costs of the parent’s long-term care, that agreement could be enforceable against the adult child. In addition, an adult child may be held financially responsible to the state for medical expenses incurred by the parent provided the child received a gift from the parent. In other words, if a child received a gift of approximately equal value from the parents (or their estate) during the parent’s lifetime, and failed to provide support to the parents, the state may seek reimbursement from the child. For example, if a child received $30,000 from the parent to pay down a home mortgage and the parent later incurs $40,000 in medical expenses, the state may seek reimbursement from the child in the amount of $10,000. This statute is typically used against children who do not live in the same state as the parent.
The Fourth District of California has declined to follow the cases and statutes of other states related to filial responsibility. For example, in Evans v. City of Los Angeles, the court explicitly refused to let the City of Los Angeles hold a daughter responsible for her mother’s care when the daughter was not receiving any benefit and was simply acting in her capacity as conservator under the Probate Code.
Background and Precedents
While filial responsibility statutes have been enacted in several states, California has never had one. Allegiance to a parent and the moral obligation of filial support have long been recognized in the common law of England and America. A number of states had common law or statutory provisions recognizing a duty of filial support: Delaware, District of Columbia, Massachusetts, Mississippi, Nebraska, North Carolina, Oklahoma, South Carolina, and Utah. However, case law indicates that the references to filial support in these statutes are limited to support during infancy, not old-age support.
California, Connecticut, and Nevada have specifically rejected the idea of explicit legal obligations of support for adult children of elderly parents. One of the earliest cases in which this issue was squarely before the court was in 1855. In Treadwell v. Treadwell (Cal. 1855) 5 Cal. 76, the court held that "[W]e can find no provision in any law of California which requires children to support their parents." Since that time, this issue has been resolved on a case-by-case basis. In Read v. Western & Southern Life Ins. Co. (1984) 165 Cal.App.3d 114, 222 Cal.Rptr. 517 (Read), the court held there was no general legal obligation of children to support aging parents. The court stated it is the "general rule … that the law does not create an obligation to provide food and shelter for elderly parents."
In other parts of the country, some have argued that the passage of the federal Medicare program in 1965 obviated the need for filial responsibility laws. Many states abandoned those laws in the 1980s.
The situation is different now. Increased longevity and the enormous cost of that longevity has made the issue of providing for aging parents more important than ever. Grover Norquist, president of "Americans for Tax Reform," argues for such filial laws to be passed in all states, thus requiring children to pay for the nursing home costs of their parents. He has testified on this topic before many state legislatures.
California vs. Other States
California is one of the few states with an explicit prohibition on filial support legislation. In 1970, California voters approved Proposition 5, which added Article I, Section 1(e) to the state’s constitution, allowing the legislature to pass a law that provides that no person has an obligation to pay for the services provided by the state to another person when the other person is fifty-five years or older. The Constitution also allows that if such a law is enacted, it may not apply retroactively. At the time, California was facing budgetary challenges, in part due to increasing Medicaid costs, and Proposition 5 was intended as a way to shift some costs of care from the state to financially stable relatives. Thus, the voters passed the initiative to protect their right to refuse to pay for indigent elder care.
As is apparent above, California is an outlier with regard to its ban on the enactment of filial support laws. However, many other states have passed laws that significantly limit the scope of those enforced by other states. A state’s ability to enforce a foreign filial support law turns on two things: (1) whether the filer qualified for Medicaid and (2) the extent to which a receiving sibling benefitted from the filer’s financial support during the [before or after] Medicaid qualification period. In other words, even if a state imposes a legal duty on adult children to support their indigent parents, not all of those laws are created equal. Some provide a cause of action against a child, where the parenting simply must show that the child did not contribute, while others require evidence of extraordinary financial support at a particular point in time.
For example, Florida has passed a tax code exemption that effectively provides a "safe harbor" that allows a maximum benefit of $599 . 60/month to go toward the cost of caring for a parent in order for the child to meet his or her burden that he or she provided adequate support.
On the other hand, Illinois will consider the circumstances of earned income and medical expenses in determining whether the amount of support provided was sufficient. And in North Carolina and Pennsylvania, the state will consider the ability to pay, the resources of the parent, and the nature of the relationship between the parties in determining whether the child has supported the parent.
Pennsylvania has a unique law. Although parents have a duty to support children, the law only imposes a duty on children to support their parents if the debt was incurred and the legal obligations arose on or after June 14, 1995. Additionally, the Pennsylvania law does not provide for reciprocal rights to seek reimbursement from a non-supportive sibling, as most other states do.
Like California, Mississippi has passed legislation directly prohibiting the development of filial support laws. However, unlike California, Mississippi’s law was passed to prevent the federal government from recovering amounts channeled to their state’s Medicaid program through utilization of filial support laws in sister states.
While the majority of states do have some form of filial support law, the influx of senior citizens in California will most likely create increased pressure to remove the State’s prohibition on filial support laws and implement statutes that are similar to those in other states. On the other hand, California already has a robust network of publicly funded safety nets for the poor by virtue of organizations such as Medi-Cal, CAL-OPTIMA, and California Children’s Services.
Impact on California Residents
So what are the implications for California families if and when filial responsibility laws come into play? Well, as we mentioned earlier, it could mean paying for a family member’s long-term care facilities and skilled nursing home costs, despite California not having specific filial laws.
In states where there are what we normally call "filial laws", the family members of someone who is receiving Medical Medi-Cal benefits may be approached by the Department of Health Care Services for California to pay for some or all of the costs of that residence’s long term care and skilled nursing facility. Of course, any amounts paid are subject to, and limited by, the health care plan provisions and are made payable to the long term care provider rather than the medical carrier.
The process begins with a notice to the family member to determine his or her alleged financial ability to support the care of the family member. The family member is then required to respond to the notice asking for a statement of ability to support and such information as the Department may reasonably require to determine family income. If the family member fails to do so, one might assume that the entire cost of the residence is going to fall squarely on the allegedly irresponsible and non-responsive family member.
A family member can appeal the decision made about his or her financial ability to support the care of the family member by filing an "action in mandamus." Failure to request a hearing may limit the obligor’s ability to contest a claim. If, after the first hearing, the result is that a family member is determined to be financially responsible and ordered to pay for some of the costs of the long term care and skilled nursing facility, that decision can be challenged through traditional appellate channels. In other words, a family member might be able to appeal the appellate decision to the California Supreme Court for review if accepted by that court.
Prospects for California’s Filial Responsibility Laws
The future of filial responsibility laws in California remains uncertain, as the state has not had a law explicitly requiring children to care for their elderly parents since 1977. While there have been recent discussions about reintroducing such laws, the debate is contentious. Some argue that reviving these laws could be cruel and unnecessary, given the improvements in elder care and social security programs since the 20th century. Others believe that social services have failed to keep pace with the growing elderly population, leaving the burden for their care to their adult children.
Potential legislative changes have been proposed, but none have gained traction thus far. One suggestion is to replace the old law with a more modern approach , such as incentivizing people to accept parental responsibility financially rather than holding them directly responsible. This could involve tax breaks or other financial benefits for those who agree to take on long-term care costs for their parents. However, critics have stated that such programs would be ineffective and are unlikely to pass.
Overall, experts remain ambivalent about the future of filial responsibility laws in California. Arguments both for and against such laws have been made, with some believing they would reduce taxpayer burden while others believe they would negatively impact adult children. As the aging population continues to grow, the issue of elder care in California will surely persist, making it an important consideration for policymakers, and one that will be watched closely in the coming years.