Saturday, July 07, 2007

Filial Responsibility Laws -- Virginia, Maryland, California


Filial Responsibility Laws in different states, starting with the Commonewealth of Virginia

The Code in Virginia is 20-88, and is available online at this (in the online copy of the code of Virginia) reference:

The Virginia statute ("Support of parents by children") states quite bluntly:

“It shall be the joint and several duty of all persons eighteen years of age or over, of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father, he or she being then and there in necessitous circumstances.”

Later it reads:

"To the extent that the financial responsibility of children for any part of the costs incurred in providing medical assistance to their parents pursuant to the plan provided for in § 32.1-325 is not restricted by that plan and to the extent that the financial responsibility of children for any part of the costs incurred in providing to their parents services rendered, administered or funded by the Department of Mental Health, Mental Retardation and Substance Abuse Services is not restricted by federal law, the provisions of this section shall apply. A proceeding may be instituted in accordance with this section in the name of the Commonwealth by the state agency administering the program of assistance or services in order to compel any child of a parent receiving such assistance or services to reimburse the Commonwealth for such portion of the costs incurred in providing the assistance or services as the court may determine to be reasonable. If costs are incurred for the institutionalization of a parent, the children shall in no case be responsible for such costs for more than sixty months of institutionalization.

"Any person violating the provisions of an order entered pursuant to this section shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $500 or imprisonment in jail for a period not exceeding twelve months or both.”

The statute does allow for the possibility of emancipation in the case of abandonment. It is not clear what would happen in “gay-related” cases.

32.1-325 appears to refer to Medicaid.

But it would appear from reading this law that filial responsibility could be assessed, for at least up to five years of nursing home care, even if the parent had no assets to “spend down.” Again, I have not yet heard of any cases where this has been enforced (it would be particularly problematic it the adult child is out of state), but I am surprised that the major media (including gay media) have slept on this for so long.

I’ll start checking some other states in the near future.

The federal lookback period, extended to 60 months and discussed in the previous posting, would appear to related to the Federal Share of Medicaid nursing home expenses. The rules are quite complicated. I worked on the New York State Medicaid Management Information System (for Bradford National Corporation as the consultant) from 1977-1979 on the MARS (Management and Administrative Reporting), and many of the reports dealt with federal shares for indigent elderly in nursing homes, with various rules about SNF’s and ICF’s, that programmers had to become quite conversant about in doing system tests for the State.

(Oct. 10, 2009): The first paragraph of the Virginia statute would seem to address filial responsibility as a "social contract" issue or as if it were part of a family code, as well as serving the purpose of a "poor law" and dealing with abuse of Medicaid. That is, an adult child must provide for himself/herself plus created family and children (if any), and in addition, facilitate the care of the parent properly in an unpaid manner (or sometime a paid manner), although the parents' funds can be used for the parents' care without commingling once the adult child performs according to this section (including not behaving in a manner as to jeopardize acquiring and keeping this care). It would appear that the law could be used to make the childless experience more "family responsibility" no matter what disruption occurs in their own lives. The law does take into proper account past parental neglect or abuse, but does not consider a disabled parent "morally" accountable for his or her own problems because of lifestyle or past behavior (alcohol, drugs, smoking, HIV, etc); the adult child must own the "moral responsibility". The law also needs to be interpreted in connection with disabled adult neglect laws, which are somewhat similar to child neglect laws. One can be a responsible party "in fact" without formal custody or guardianship.

It's also instructive to look at the statute in Virginia for "neglect of an incpacitated adult". Although there are some caveats toward the end, it is worded generally enough that, in conjunction with the filial responsibility statute, it could conceivably be used against an adult child who someone believes is not "diligent" enough, link (18.2-369). The adult services departments of a number of states, including Virginia, have (third-party-written, probably) literature that suggest that "lack of affection" could be construed as neglectful or abusive, a concept we normally connect to (voluntary) marriage.

The Virginia law does not appear to be predicated on the marital status (or possible history of divorced) of the parents. Generally, that's true of filial responsibility laws in general. The "moral obligation" (and legal obligation) comes from procreation itself, not from the martial relationship that society may believe should be backing up having children.

Maryland


The basic statute is 13-102 in Family Law. The link is here: The master index to Maryland statutes is here.

It reads:

"(a) If a destitute parent is in this State and has an adult child who has or is able to earn sufficient means, the adult child may not neglect or refuse to provide the destitute parent with food, shelter, care, and clothing.

(b) If a destitute adult child is in this State and has a parent who has or is able to earn sufficient means, the parent may not neglect or refuse to provide the destitute adult child with food, shelter, care, and clothing.

(c) A person who violates any provision of this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 year, or both."



California:


The basic link to the California Family Code Section 4400-4405 is this. The basic California Family Code Index is this. Yes -- how ironic -- to use "The 4400" as a pun!

The text reads bluntly:

"4400. Except as otherwise provided by law, an adult child shall, to
the extent of his or her ability, support a parent who is in need
and unable to maintain himself or herself by work."

Again, these requirements seem to be independent of any previous viatical spend-down gifts to adult children. Conceivably, in some states, once a Medicaid nursing home bill has been paid, an adult child's debt might exist and the adult child could get a call from a debt collector, although I haven't heard that this has really happened (yet). Imagine the emotionality of this issue.

The District of Columbia (Washington DC) does not appear to have such a law.

In general, these statutes emphasize poverty or destitution of the parents with non-impoverished adult children.

I certainly welcome detailed comments from visitors. This is a real “sleeping dog” and probably at Rottweiler. I have a related post with three more states on Thurs. July 12.

6 comments:

Anonymous said...

Do you know if these laws extend to step children?

Bill Boushka said...

Good question. In all or practically all states, the original biological parents would presumably retain primary responsibility for supporting the children. So it would seem to me that logically (if "payback" is the reason) the law probably would not apply. It could vary among states. In some cases, the step-parent can adopt the children and then maybe that could make it apply. Since the adult child could never have given consent, that also raises good questions. Maybe someone else can answer it.

Remember these laws seem to be rarely enforced so far as "poor laws". I write about them to make people aware of a potential serious issue down the road as economcis and demographics force it out into the open.

Bill Boushka said...

You can check this web reference from “Labor of Love” on a step-parent adopting step children, at this link.

Eric said...

I fiercely oppose filial responsibility laws for several reasons. First, they selectively target children based on their parents' financial circumstances, something the children (usually) have no control over. Second, the burden of supporting parents would fall disproportionately on only children, who would bear 100% of the support liability while (for example) if there were three children, each would bear only one third of the liability. Once again, a person has no control over how many siblings they have. Third, the "reciprocity" argument that is often used to justify these laws discriminates against those people who choose not to have any children themselves. These childless people would have to support their parents but would have no one to support them later in life. Finally, the cost of elder care is so high that having to pay even a fraction of a parent's nursing home bills would bankrupt most middle class people. The wealthy could afford to pay, the poor would not have to pay, but the middle class would be screwed, as usual.

As an only child, and one who almost certainly will not have children, I stand to be doubly impacted by filial responsibility laws. It mystifies me that the issues I have raised do not seem to be addressed in any other articles or discussions I have found on this topic.

Enforcement of these laws will be inherently inequitable, cause resentment between family members, and wipe out decades worth of retirement savings for many people. Living in a different state from their parents may protect adult children for a while, but if filial responsibility ever becomes federal law, that option would also be gone.

Hopefully, there is enough public opposition that any elected official who favors filial responsibility laws will be committing political suicide. Even if the laws are ultimately ruled unconstitutional, they could do a lot of damage in the meantime.

Carol said...

Bill - my husband and I live in Maryland and were recently advised by an elder attorney to protect our assets via an irrevocable trust. Now I find out that a nursing home may be able to sue our only son for nursing home costs after our death?? Is this correct? Have we been seriously misadvised??

Bill Boushka said...

Good question. You'd have to ask the attorney in your state. In general, trusts tend to protect assets from litigation that otherwise might be brought against individuals (that's why lawyers sell them), but you'd have to know the specifics in your state and situation.

States haven't enforced these laws very much, but given the economy, budget problems, and social and political tensions, I would expect some states will try it in the future. To me, California looks like a big risk.