Thursday, July 12, 2007

A look at filial responsibility laws in six more states


Today I looked at a few more states listed on this website:

Everyday Simplicity: Filial Responsibility Laws: List of States Having Them:

Connecticut is interesting. The basic statute seems to be “Relatives obliged to furnish support, when”, link here.

The law seems to have been rewritten and revised, as shown in a complicated explanation in the statute. Curiously, I cannot find a concrete statement in this statute that literally says that adult children must support indigent statement. But a related statute refers to this idea by listing exceptions in the case of abandonment or emancipation, here. “No liability for support of deserting parent".

"Sec. 46b-219. (Formerly Sec. 17-326). No liability for support of deserting parent. No person shall be liable under any provision of the general statutes for the support of a parent who wilfully deserted such person continuously during the ten-year period prior to such person reaching his majority. For the purposes of this section, wilful desertion means total neglect of parental responsibility in failing to provide reasonable support and care within the financial capability of the parent. Any person claiming the provisions of this section as a defense shall have the burden of proof of such willful desertion."

Massachusetts, the only state to fully accept gay marriage at present, has a filial responsibility law, 273/20, "Neglect or refusal to support parent" here under "Non-Support, Desertion and Illegitimacy," modified as recently as March 2006. (see also the index to all related Mass. laws).

Section 20. Any person, over eighteen, who, being possessed of sufficient means, unreasonably neglects or refuses to provide for the support and maintenance of his parent, whether father or mother, residing in the commonwealth, 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 illness to support and maintain himself, shall be punished by a fine of not more than two hundred dollars or by imprisonment for not more than one year, or both. No such neglect or refusal shall be deemed unreasonable as to a child who shall not during his minority have been reasonably supported by such parent, if such parent was charged with the duty so to do, nor as to a child who, being one of two or more children, has made proper and reasonable contribution toward the support of such parent.

Iowa is interesting in its simplicity. The requirement for support can extend to grandparents and grandchildren (“remote relatives”). Here is the basic statute.

252.2 Parents and children liable.
The father, mother, and children of any poor person, who is unable to maintain the poor person's self by labor, shall jointly or severally relieve or maintain such person in such manner as, upon application to the board of supervisors of the county where such person has a residence or may be, they may direct.

But then this extends to other family members, at least grand-relatives; link.

252.5 Remote relatives.
In the absence or inability of nearer relatives, the same liability shall extend to grandparents, if of ability without personal labor, and to the grandchildren who are of ability by personal labor or otherwise.

South Dakota also includes the duty to support siblings in some cases. Notice the wording in 7-28 to make it look like a personal entitlement from an impoverished sibling. This is “loyalty to blood” taken to the soap opera level. Here is the basic statute.

25-7-27. Adult child's duty to support parent when necessary--Notice required. Any adult child, having the financial ability to do so, shall provide necessary food, clothing, shelter, or medical attendance for a parent who is unable to provide for oneself. However, no claim may be made against such adult child until the adult child is given written notice that the child's parent is unable to provide for oneself, and such adult child has refused to provide for the child's parent. Notice required by this section shall be given within ninety days after the necessary food, clothing, shelter, or medical attendance, claimed in the notice, was first provided for the parent. However, in the case of fraud or misrepresentation, notice shall be provided within ninety days after such fraud or misrepresentation is known or should have been known. If the parent or someone acting on behalf of the parent makes application for assistance pursuant to chapter 28-13, the county shall give the written notice required herein within ninety days after it receives the application or notice required under § 28-13-1, 28-13- 32.3, 28-13-32.4, or 28-13-34.1, whichever is sooner.

South Dakota mentions remote relatives, but apparently in the context of going after other siblings to share support. Here is the law.

25-7-28. Adult child's right of contribution from brothers and sisters for support of parent-- Notice required. In the event necessary food, clothing, shelter, or medical attendance is provided for a parent by a child, he shall have the right of contribution from his adult brothers and sisters, who refuse or do not assist in such maintenance, on a pro rata share to the extent of their ability to so contribute to such support; provided that no right of contribution for support shall accrue except from and after notice in writing is given by the child so providing for his parent.

There was a complicated and convoluted case in South Dakota, reported in 2003 by Fleming & Curti, “Attempt to Force Children to Pay Father’s Hospital Bills Fails,” link here.

Ohio

The law is 2919.21 "Non Support or contributing to non-support of dependents.

(A) No person shall abandon, or fail to provide adequate support to:

(3) The person’s aged or infirm parent or adoptive parent, who from lack of ability and means is unable to provide adequately for the parent’s own support.; (E) It is an affirmative defense to a charge under division (A)(3) of this section that the parent abandoned the accused or failed to support the accused as required by law, while the accused was under age eighteen, or was mentally or physically handicapped and under age twenty-one. (G)(1) Except as otherwise provided in this division, whoever violates division (A) or (B) of this section is guilty of nonsupport of dependents, a misdemeanor of the first degree. If the offender previously has been convicted of or pleaded guilty to a violation of division (A)(2) or (B) of this section or if the offender has failed to provide support under division (A)(2) or (B) of this section for a total accumulated period of twenty-six weeks out of one hundred four consecutive weeks, whether or not the twenty-six weeks were consecutive, then a violation of division (A)(2) or (B) of this section is a felony of the fifth degree. If the offender previously has been convicted of or pleaded guilty to a felony violation of this section, a violation of division (A)(2) or (B) of this section is a felony of the fourth degree.

The link is here.

Pennsylvania

There is an important paper online, "Finances, Families, and 'Filial' Laws: The Real World as Classroom," by Katherine C. Pearson, Professor of Law and Director, Elder Law and Consumer Protection Clinic, Penn State Dickinson School of Law," dated December 2006. The series is called "Family Focus on: Families and the Future." The article says that in Pennsylvania, a law was passed on July 7, 2005 to move Act 43 "indigent support" rules from the Welfare Code to the Domestic Relations Code, "placing it side-to-side with child support and spousal support laws, which duplicates it in those respects, making it clear that adult children's support of a parent is the real goal." The article notes that much of the Pennsylvania Bar Association wanted to repeal this law, and the article notes well the practical difficulties with enforcement. Here is the link.
There is another reference on Pennsylvania from the National Council on Family Relations in Minneapolis (ironically, Minnesota does not have such a "poor law") here, where it reads "Act 43 exists as a potential creditor's claim anytime someone believes a particular adult child or financially solvent 'statutory' family member should be the payer for the 'indigent person.'" Presumably, although this is speculative, such a person in Pennsylvania could get a call from a debt collector demanding payment for a parent's debt.

I could not find the text of the 2005 Pennsylvania statute Act 43-2005 online, but I found a Pennsylvania Bulletin reference that implies that the state could force an adult child to support an indigent parent even if the parent is not on welfare. The link is this. Mark D. Freeman has an elderlaw site and discusses the PA law in his "New Nursing Home Law Update" here, although it appears that the law's scope isn't limited just to nursing homes.

Apparently New York does not have such a law, although in the 1970s Ed Koch (when a Congressman, before he became mayor in 1978) told constituents that he thought adult children should have such responsibilities.

General Remarks:

Other good sources are:

Katie Wise. “Caring for the Elderly: Sharing Public and Private Responsibility for the Elderly.” NYU Law School, May 3, 2002. (The PDF link no longer works. Do a search on "'Katie Wise' 'Caring for the Elderly' and read the cached HTML of a word document.) (Note: The document has appeared again in a new location, here.) This dates back to 2002. On page 573 (page 11 on the pdf file) there is a section "The Current Status of Filial Responsibility Laws" with a count of 28 states (as of 2002) with such laws, with their never having been enforced in 11 of the states. The article presents balanced arguments for individual filial responsibility and societal or socially shared responsibility, which could parallel some of the debates on health care (even though custodial nursing home care is not part of Medicare). It also gives international comparisons. It warns that changing demographics is likely to make the issue politically more volatile. It also presents somewhat libertarian arguments that adult children should not have legal filial responsibility because they did not enter into voluntary "contracts" to be born and raised. One's identity and consciousness also seems like a spiritual given.

Other additional sources: Katherine Pearson, Pennsylvania State University, School of Law (new link given above), “Agency and the Elderly: The Responsible Thing to Do about “Responsible Party” Provisions in Nursing Home Arrangements
Kisten B. Wilson, Bar Journal, 1999 Family Law Issue, “Filial Responsibility: A New Look at an Old Legal Concept”.

The National Center for Policy Analysis has a 2005 paper that argues that something like 1/3 of Medicaid nursing home expenses could be saved by states enforcing these laws.

Many of these state laws seem to be worded in an archaic manner, and reflect an assumption, unchallenged before modern times in the latter half of the 20th Century, that blood relationships trump, that procreation is essentially mandatory (or else one stays home and takes care of those who do bear children) and a life activity so fundamental and essential that anyone who does not engage in it is in a sense “disabled.” Given the demographics of lower birth rates and longer life spans, states are bound to start looking at these laws, even outside of the better known issue of preventing people from giving away assets to kids to qualify for Medicaid (the look-back period problems). It could give a whole new spin (by reviving an old spin) on “family values”, the gay marriage debate, and the social significance of sexual intercourse itself.

Earlier correspondence: Sept 7, 2006, from the National Council of Family Relations, blog link.

Practical burdens, mention of major New York Times late 2006 story here.

In June 2007 on that "Major Issues" blog I covered the USA Today series on eldercare.

In my Urchin reports for doaskdotell.com (where I have this essay on filial responsibility laws) I find plenty of evidence of concern (from the search arguments) by visitors for this issue, especially in California.

Please refer to a related post on Saturday July 7 on this blog.

(There are more states on this blog on Oct. 2, 2007.)

3 comments:

Pau said...

Dear Bill:
I feel so happy to see that you collected information concerning filial responsibility laws in some states of the U.S. I've heard that there are totally 30 states with filial responsibility law. Will you upload more information about this? You really did a great job!!! Bravo!!!

Anonymous said...

Idaho repealed their law this past year because it was not a law of general applicability (unconstitutional) and could subject the state to federal sanctions.
ER

Bill Boushka said...

Thanks. This comment was posted March 6, 2012.