Little-Known Filial Laws Can Force Families to Fund Father’s Care

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May 1, 2014 by Lisa Brammer

This is part II in a two part series about whether adult children can be held responsible for their parents’ debt. Last week we looked at the Social Security administration and how—this year alone—they intercepted the state and federal tax refunds for about 400,000 Americans who had relatives who owed them money. In numerous cases the debts came as a complete surprise to those held responsible and were dated as far back as the mid-twentieth century. Read last week’s blog here.

This week we are going to focus on filial responsibility laws and how these little-known laws are being used to collect debt.

In 2007, Elnora Thomas of Tampa, Fla., received a disturbing letter. She was being sued by her mother’s nursing home in Philadelphia for almost $50,000 in unpaid bills. She and her sister Peggy Crowder, who also received a letter, were trapped by Pennsylvania’s filial responsibility laws. She told them she didn’t have any money to pay. They told her they would put a lien on her house to get their money.

Most of us are not familiar with these laws—or have even heard about them for that matter—yet, here in the United States the statutes have been on the books since the very beginning when the colonists came to America. These laws originated from England’s Elizabethan Poor Relief Act of 1601 which required “the father and grandfather and mother and grandmother and the children of every poor, blind, lame, and impotent person” to support their impoverished relatives to the best of their ability.

I think it’s safe to say that everyone knows parents not only have the moral obligation to financially support their dependent children, they are also legally required to do so. Well, in more than half the states (30) the opposite is true too. These states with filial responsibility laws on the books can make adult children legally financially responsible for their elderly parents—if the parents don’t have sufficient income to take care of themselves.

Historically, filial responsibility laws rarely had been enforced and in some states not at all. But, the Federal Deficit Reduction Act of 2005 made it more difficult to qualify for Medicaid long-term care coverage and some elder law attorneys predicted nursing homes would start utilizing those laws as a way to get paid. They were right!

Sometimes the law is used successfully as a way to get financial support from adult children who “overreach” by helping themselves to their parents accounts or those who get their parents to transfer assets over to them. This was the case concerning Earl and Ruth Linderkamp of North Dakota. Both of the Linderkamps entered Four Season’s nursing home in October of 2006. Ruth died in December of 2008 and Earl in September 2010. After their deaths, the nursing home sued the Linderkamp’s son, Elden, to set aside a land transfer as a fraudulent conveyance and to recover the unpaid debt for care provided to his parents by the nursing home.

In the end, The North Dakota Supreme Court found Elden personally liable for his parents’ $104,000 debt for unpaid nursing home care.

According to Penn State law professor, Katherine Pearson, the problem with the filial responsibility laws is they are not limited to “bad” kids who “overreach.” Just ask Andrea August of Norristown, Pennsylvania. She was sued for more than $300,000 in unpaid nursing home debt by her parents’ nursing home. August said she never had power of attorney over her parents’ assets and thought the nursing home and the guardian appointed to look after her parents had worked out how the bills would be paid. Both She and her husband work two jobs in order to make ends meet for themselves and their two children. As much as they would have loved to help—paying her parents bills was just not possible.

John Kennedy, a Harrisburg, PA., attorney who has represented nursing homes in hundreds of these cases, said the Federal Deficit Reduction Act made it harder to get Medicaid. He uses the filial responsibility laws to “persuade” adult children to do the paperwork necessary to establish Medicaid eligibility.

Again, not the case with Andrea August. Her lawyer, Linda Berman, said her client had already helped fill out all forms for her parents.

At the end of the day, August considers herself lucky. One her husband’s employers had a legal coverage plan that enabled the couple to hire a lawyer—they never could have afforded to otherwise. Though Berman contested the nursing home’s claim, August and the nursing home reached a settlement that freed August of her parents’ debt, partly because the law states adult children can only be held liable if they have the means to pay—which August clearly did not.

In the case of the Tampa Florida woman, Elnora Thomas, she got help from Pam Walz, director of the Elderly Law Project at Community Legal Services of Philadelphia who filed several appeals with Medicaid on Thomas’ mother’s behalf. In the end, Medicaid did come through or Thomas would still most likely have the threat of a lien on her house today.

Here is a list of states that currently have filial responsibility laws: Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, and West Virginia.

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