What exactly are Filial Responsibility Laws?
Filial responsibility laws are legal provisions that allow government entities to sue the adult children of elderly individuals for the cost of their parents’ medical care, nursing home care, or other care. These laws have existed in various forms since Roman times, but their modern form arose out of the 1970s Medicaid boom.
Filial responsibility laws in the United States have roots in English common law, which allowed for a child to be held responsible for his or her aged parent. Pennsylvania was the first state to enact a filial law in 1794. By 1828, 22 states had similar laws. Most of these early laws required that the children were able to care for their parents, and that the parent could not care for his or her own needs. However, states began to worry about the possibility of adult children being financially responsible for their parents when the parents’ earnings and savings ran out. Filial responsibility laws were seen as a way to prevent the government from having to care for the elderly at taxpayer expense.
States reduced the applicability of these laws during the 19th century in response to concerns that they might break up families, and by the 20th century, most states repealed their filial laws altogether. The resurgence of these laws in the latter part of the century was due to the increasing cost of health care, and a fear that the aging baby boomer population would present an insurmountable burden to the states.
Michigan is one of only two states to have a filial law today. Michigan’s law is a product of the 1974 Social Services Act, which included minimum income standards for the states to provide benefits for individuals who had no money to pay for them. States budgeted these costs under Medicaid and Supplemental Security Income.
Due to the Affordable Care Act, most of the states that repealed their laws have not re-instituted them. Nonetheless, states continue to be concerned about the cost of care for the elderly, and look for new ways to put the financial burden on family members , rather than government programs.
Pennsylvania and Michigan are the only states that still have active filial responsibility laws. Laws in Pennsylvania have been interpreted as allowing a child to be responsible for medical costs even if they do not have personal contact with the parent. Several Pennsylvania courts have decided that society has determined that parents should be cared for by their children. One 2011 court decision stated that "there is a growing consensus among jurisdictions across the country that it is the ‘moral, social, and legal duty’ of children to support aged parents."
Michigan’s law was previously limited to only exceptional cases, but in April 2013, a Michigan judge clarified the requirements in the law by ordering that Dale Cohen, a 66-year-old retired attorney, to pay $93,000 for a care center invoice. Mr. Cohen’s 97-year-old mother, who had moderate Alzheimer’s Disease, was admitted to a Michigan care facility at the family’s request. Mr. Cohen, on behalf of himself and his four siblings, filed preemptive requests with the court, attempting to stop the collection action. The case will be heard on appeal at the end of 2013.
In Michigan, the surviving parents’ income and assets are used to determine a "retention allowance" for the spouse, which is then deducted from the amount owed to the care facility. Since 1996, Michigan has allowed a "special hardship exemption" to low-income children, which had never been used before Mr. Cohen’s case. Since the law’s inception, Michigan has had other cases where residents of the state have been sued under the state’s filial responsibility law. However, in those cases, the suit was settled out of court after some amount of payment was made. Mr. Cohen’s case is the only case where the judge ordered him to pay the entire amount.
While age and illness may create a moral obligation on the part of the children to care for their parents, there is no legal obligation for a child to be financially responsible for a parent or other family member. The law in Michigan may be an attempt to shift this obligation from the state to the family.
Filial Responsibility Laws from around the United States
Filial responsibility laws are relatively rare in the United States, but 27 states have laws that range from mandatory to discretionary and from high penalties to low. That means there are numerous ways in which these laws are applied, with certain states being much more aggressive in enforcing them than others. The laws are rooted in the idea that the responsibility of caring for elderly parents falls on the child, not on the state, and date all the way back to 13th-century England.
Many of the states that enforce filial responsibility laws on the books have not done so aggressively or at all. Even in Pennsylvania, which has been a more aggressive enforcer of these laws, the trend has been to move away from punishing the children of elderly parents. A 1996 survey of these laws discovered that 25 states had laws on the books requiring children to support their parents, but only three states had imposed any obligations in the past decade.
Three states—Michigan, New Jersey and Pennsylvania—were commonly considered the most aggressive in terms of the application of filial responsibility laws. A 2016 federal appeals court decision found a family member liable for thousands of dollars because of a hospital filing a lawsuit against the family member. Michigan was among the states known for imposing what were considered to be harsh penalties, but the Michigan Court of Appeals rejected a claim made against a son used to try to recover $93,000 from him after his invalid mother fell behind on her nursing home expenses.
No matter what other states do with their filial responsibility laws, Michigan can offer you some very general information in regard to your own responsibility as an adult child.
Are Filial Responsibility Laws being enforced in Michigan?
Michigan does not have any filial responsibility laws, either as common law or via Michigan legislation. There is case law that construes the concept of filial responsibility, including the 1933 Michigan Supreme Court decision in Toms v Toms. In that case, a son was ordered to pay for his mother’s support at an old age home under a 1929 old age assistance act. The son resisted the request on the ground that he himself was also aged and did not have the financial means to help his mother.
In discussing the legal basis for this mother-child maintenance requirement, the court first said that "there is no common-law duty on the part of an adult son to support his mother within this state." The rationale for this comment came immediately thereafter:
However, there is a modification of this duty in the case of necessity. It does not require complete or substantial maintenance, but merely maintenance fit to the capacity of the son to furnish it. Aid given to the indigent parent in excess of the son’s ability to furnish is considered to be in the nature of a gift rather than support. The son is under no legal obligation to give his mother a home.
This particular decision was affirmed by the Michigan Supreme Court and has remained part of Michigan law ever since. However, a more recent Michigan case, Krebs v Sprangers, seems to differ with Toms. Low income parents are normally reluctant to ask their adult children to support them, and adult children are normally reluctant to provide support to their parents on any ongoing basis. The courts in both Toms and Krebs have provided a somewhat inconsistent basis for looking at this scenario on a state law level.
Filial Responsibility Laws and Their Legal Ramification in Michigan
Should Michigan adopt or enforce filial responsibility laws, it would mean that a Michigan resident — sibling, adult child, or grandchild — could be legally bound to provide support for the care of a family member. The level of the responsibility would be defined in statute, and can vary from state to state. Under many of the statutes in other states, if a person does not have the funds to support a foster or disabled relative, the law can require relatives to make up the remaining difference. The make-up could be in the form of a monthly payment or a lump-sum settlement, but it would be a specific amount.
While there is no filial responsibility law currently in place in Michigan, the existence of them in 29 other states means that Michigan residents could face legal actions in order to recover for outstanding debts owed to others. This could mean that a child takes care of an elderly parent , bringing the bill for the costs of their care to upwards of $3,000 per month. If the parent passes and they go to collections, it’s not difficult to see how a lawsuit against the child could be in the works.
Other implications could specifically target one specific family member. If you and your siblings take care of one of your elderly parents, this could open the door for a request to be paid back for the costs of care. If the siblings did not split the costs equally, the one who took on the most financial burden could also be the one to request a share from the others as a form of repayment. In other words, since you all took care of mom, but you specifically spent more on her, you’re going to have to make up the difference or be taken to court to recover the money you spent.
Ways Around Filial Responsibility Laws
Neither Medicaid nor long-term care insurance are specifically contingent on the liability of one person for the support of another. Medicaid is a needs-based program where the government pays for medical care for low-income individuals. Long-term care insurance pays for care received by someone who has had to rely on others for support due to age or disability (rather than just the usual financial protection for medical expenses). Both of these options can be considered "alternatives" to filial responsibility laws, i.e., they can help support an elderly family member without the need to consider the reality of filial responsibility (or the fact that very few states even have filial responsibility laws).
As mentioned above, Medicaid will pay for certain medical care received by those who meet income restrictions. In Michigan, the Medicaid program provides coverage for skilled nursing, home health, hospice, home help, personal care, adult foster care in a family home, adult foster care in a nursing center and individuals with intellectual or developmental disabilities. Basic Medicaid coverage is not dependent on one person supporting another. It is required to apply for Medicaid, and only after applications are processed are you able to count on the coverage for your loved one. Further, eligibility standards vary for the different types of coverage. In addition to eligibility requirements, an applicant must also meet other requirements that provide the state with flexibility. Perhaps the most well-known of the requirements is the so-called "look-back period." This means that Medicaid may review your assets for five years before applying date on which you actually applied for Medicaid. The purpose of the look-back is to determine if you gave away any property or assets out of your own resources and in order to qualify for Medicaid. If the recipient is found to have given money away, they may face a penalty period of ineligibility. For married couples, the review can be even more complicated. However, with careful planning ahead of the look-back period, an elder law attorney can advise you about acceptable transfers that do not alienate the recipient’s eligibility for Medicaid. Long-term care insurance is only used by those who have purchased insurance coverage to cover the payment of long-term care insurance. Although you are not legally required to take care of your spouse or parent, this does not prevent you from purchasing long-term care insurance that will supplement medical care that can be covered by Medicaid. Insurance policies differ greatly so check the details of your coverage to see if it covers your loved one’s needs. As with Medicaid benefits, the type of coverage may affect whether or not your loved one is required to move out of their current home.
Lawyer and Public Opinion
A diversity of opinions exists among experts who’ve researched the origins of filial laws, and the policy reasons behind their adoption. And there’s no shortage of critics, mainly in academia, suggesting that these laws are outmoded and have little place in a modern, compassionate society. In recent years, efforts to repeal these laws, often brought by the children of elderly parents, have gained traction in some states.
"Filial laws are outdated, antiquated, and need to be abolished," said Zachary Kunz, Executive Director of the New York State Academy of Trial Lawyers. "They’re a relic of 19th-century English common law and simply have no place in modern society."
Others agree, suggesting that the 19th-century English practice of incarcerating the destitute for failing to care for their parents will simply have no place in a 21st century society. "It’s slack justice when poor payers of parents’ bills are sent to jail rather than made to repay the debts," wrote Gerard Lefton, a Pennsylvania attorney who has written extensively on filial support.
Experts recognize that such laws received low priority enforcement-wise until the financial collapse of 2008. After that, the increasing number of financially-burdened adult children reaching retirement age prompted a stricter enforcement of filial responsibility laws in at least some states.
"As budget deficits ballooned, strapped states turned a keen eye to the recovery of the costs associated with the long-term care of elderly and disabled citizens, leading to a spike in the use of these laws," said elder care expert Dr. Mary Languirand, writing for AARP.
A retired Indiana judge also reached this conclusion . "Many states have recently revived these laws…when they saw a way to raise money without raising taxes," said Larry Klaber, in an opinion piece. "These laws resurrect the old Poor House concept."
In a 2007 article, Mark A. Roth wrote that: "Filial laws were last used widely during the Great Depression. In recent years, some states have resumed enforcing them more strictly as the aging ‘baby boom’ generation begins heading into retirement." Roth reported that examples of states with a greater use of the law included Pennsylvania and New Jersey.
"The history of these laws is well documented, and they are a product of their time," said estate planning attorney Christine S. Carr in a recent blog post. "In today’s world, it is uncommon for children to be able to take care of their parents completely. A system that would penalize children for a lack of ability to care for parents is a heavy burden."
In 2011, the state of Pennsylvania announced an aggressive enforcement policy designed to increase revenue for the state (known to have the highest number of adult child support cases in the nation). This was seen as a welcome policy shift to many advocates and elder care attorneys.
In addition, the National Conference of State Legislatures has written that "most beneficiaries of long-term care are covered by Medicaid, the federal-state program that provides medical assistance and long-term care for low-income individuals," so filing lawsuits against the children of these individuals "to reimburse the state for Medicaid expenses would help states control Medicaid costs, thereby enhancing the federal government’s efforts to do so."