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Will I Be Responsible for My Parents’ Nursing Care?

That’s a question of real concern for many and one we are hearing more about as the population ages, increasing the number of Americans needing long term care, and federal and state budget deficits continue to grow.  Can nursing homes pursue children for unpaid nursing home bills?  Can the State deny Medicaid benefits, taking the position that the children ought to pay?

 These questions refer to what is known as family or “filial” responsibility laws.   More than half the states have some type of law that requires family members to pay for the care of other indigent (poor) family members.  There is a long history of filial responsibility dating back to 17th century England.  The English Poor Relief Act of 1601 required parents, grandparents and children of every poor person to financially support that individual to the extent possible.

 In most states that currently have such laws, they have never been enforced.  Pennsylvania is an exception, but  even there it is by no means easy to do.  As I often explain to clients, just because the state passes a law or makes a new policy or regulation doesn’t mean it is enforceable, legally or practically.

 The Medicaid program is a hybrid in the sense that there are federal laws and state laws that both govern the program.  States sometimes pass laws or regulations that may violate other  federal laws, which they can’t do.  Federal Medicaid laws, for example, state that in determining financial eligibility the assets and income of the applicant and spouse shall be considered.  Adult children aren’t part of that equation.  So, if a state now says that children should pay for care before Medicaid pays, it is making the federal eligibility test more restrictive than what Congress intended, which, again, it can’t do.

 Although I haven’t examined each state’s filial responsibility law, I would say it is likely that no 2 laws are written exactly the same, which will also factor into any outcome.  In New Jersey, the law provides that a child who has “financial means” must pay for the parent.  But what does that mean?  The law doesn’t establish a number or even a method to determine who can afford to pay.  Obviously, these are not easy questions to answer and no one has yet attempted to enforce the law. 

 So, what is the final word on filial responsibility?  There isn’t any right now but, it is important to keep an eye out for trends and changes in the coming years.  And it is important to have someone on your side, such as a competent elder law attorney,  to be able to help you navigate through and around the pitfalls that pop up with regularity in the long term care world.