Ask the Expert Parental Support and the Law

31.03.2010

 

I've heard that there are circumstances where an insurance company orgovernment agency will seek to recoup the costs of an elderly person's care bygoing after assets belonging to adult children and their families. I've triedto research this online, but haven't ascertained whether this is an urbanlegend or whether there's advice for those of us concerned about doing right byour aging loved ones without ruining our futures in the process.

- D.D., Boston

A.

What you're talking about is a concept called "filial responsibility," andit involves not insurance companies but state governments.

The rationale, which you can trace back as far as ancient Roman law, isthat children have a duty to care for parents. The law sees this as a matter ofethics and reciprocity: Your parents took care of you as children; now it's yourturn to take care of them.

At one time, filial responsibility laws were far more common. As recentlyas the 1950s, 45 states and the federal government had them on the books. Theybegan to erode during the New Deal, when the Social Security Act passed and theconcept of government rather than familial responsibility started to take hold.

But 28 states still have filial responsibility laws: Alaska, Arkansas,California, Connecticut, Delaware, Georgia, Idaho, Indiana, Kentucky,Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nevada, NewHampshire, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, RhodeIsland, South Dakota, Tennessee, Utah, Vermont, Virginia and West Virginia.

Sixteen of these impose civil penalties - they can come after your assetsor income if you fail to support your parents. In the eight states where filialresponsibility entails criminal penalties, a prosecutor could actually put youin jail. Four states take both approaches.

In Massachusetts, for instance, someone who "unreasonably neglects" tosupport a parent who is destitute or too infirm to maintain himself could faceup to a year in prison plus a $200 fine.

But filial responsibility laws are very rarely enforced; 11 of the 28states that have them have never used them.

Moreover, all the states that impose this duty also allow certain legaldefenses. Statutes commonly make exceptions for a child who can't afford tomaintain a parent, such that enforcing the law simply impoverishes the child.Or if the parent abandoned a son or daughter in childhood, there's noreciprocal duty for the grown child to support the parent. The law alsorecognizes that a parent may have done a child some wrong - has "uncleanhands," in legal terms - and that means the child bears no filialresponsibility.

Filial responsibility has its critics, as well. Law journal articles haveraised the objection that such laws would be difficult to administer, forinstance, involving new bureaucracies and considerable expense. A state mightinflict a lot of pain and suffering chasing down adult children, and notrecover much money.

Still, we've seen greater interest in these laws lately, including morecomment in legal publications, especially as states struggle financially.

Should there be a federal filial responsibility law? Or a model law for allstates to adopt? While this debate continues, all the cases I've seen haveupheld the concept. The California Supreme Court, ruling on an attempt at aclass action to block a filial responsibility statute, decided in 1973 that thelaw was constitutional. While such laws are rarely used, therefore, I believeif states really wanted to enforce them, they could.

So it's no urban legend - a state could come after grown children who failto support their parents. But it seems an unlikely prospect. To ascertain thelaw in your state and how it has been used, I strongly recommend consultingwith a local elder law attorney.

But don't be surprised if he or she has to do some research to answer yourquestions. It's been a long time since most attorneys, even those whospecialize in elder law, have seen cases like this.