Filial…that which is due of a son or daughter. We all know that a parent has an obligation to a child, but did you know that a child has an obligation to an aging parent as well? Not too long ago, there were no government programs such as Medicare for medical expenses, Social Security for retirement income and Medicaid for financial assistance with long term care costs. Prior to those programs, old English Law made the children morally and legally responsible for care of aging parents. And while many of us can still remember our parents caring for our grandparents, today when a parent is in need of extensive care they go to assisted living or long term care facilities. If the elderly cannot pay medical expenses, Medicaid steps in to care for them, but Medicaid is not automatic. It must be applied for and approved before funds are available, and that essential process is technically and bureaucratically challenging.
Our medical system treats everyone admitted to a facility whether or not they can pay care expenses. So, to address the debt as costs accrue, facilities are holding the children of elderly patients responsible to fulfill their Filial Support obligation. For example, medical facilities in Pennsylvania are aggressively pursuing application of the old, obscure English law. Additionally, the following 29 states have the law on their books:
Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia.
While the law varies by state, most define the financial requirement as support of indigent parents. What this means is a parent of financial means cannot require children to support them, but a parent who is impoverished may be able to prosecute an offspring of substantial financial means. Not only that, a medical facility can attach responsibility to well- to- do children since medical care falls under the definition of support. So, while poor parents cannot ask children to fund a cruise, they can ask for food, clothing, shelter and medical care in some states. In fact, many of these states actually list failure to care for parents as a criminal offense.
Without question, Medicaid rules are complex. However, if a child follows the proper Medicaid rules and has their parent approved, Medicaid has no grounds to process claims for Filial Support. Medicaid does not look to the assets of an elderly person’s offspring to determine eligibility, so it is in both the child and parent’s best interest to prepare a family plan for an expensive long term care stay. If mom or dad need care, seek a competent Eldercare Attorney to ensure they are qualified for Medicaid.