- Filial Responsibility: Controversial Laws Dictate Clear Contracts
- August 20, 2012 | Author: Hannah F.G. Singerman
- Law Firm: Weltman, Weinberg & Reis Co., L.P.A. - Cleveland Office
Every state requires parents, in most circumstances, to pay for necessities for their minor children. Approximately half of the states have a reciprocal duty, mostly by statute, of adult children being liable for health care, a necessity, for their impoverished parents. This point has been highlighted by the recent Pennsylvania Case of Health Care & Retirement Corporation of America v. Pittas (Pa. Super. Ct., No. 536 EDA 2011, May 7, 2012) in which a son was held liable for his indigent mother’s medical expenses by application of Pennsylvania’s statute, which requires family members to pay for the care of their indigent relatives.1
Interestingly, this was not a case where liability was tied to a family member’s efforts to divert assets. Instead, the son was not found to have mishandled any assets, but by the clear meaning of the statute was found liable, even in the challenge of his mother having income and her spouse having retirement funds. As discussed below and noted by the Court in Pittas, Pennsylvania’s statute, 23 Pa.C.S.A.§ 4603, specifically codifies a clear duty by an adult child with limited exceptions.
In many ways, Pennsylvania is unique. Despite a generally recognized moral duty of adult children to their parents, and the decision in Pittas, there is growing disfavor of the courts and legislature in enforcing that duty. For example, last summer, Idaho repealed its statute providing for a reciprocal duty of support between parents and children.2 The Pittas case may not only bring more lawsuits by providers seeking to enforce the current statutes, but also prompt a political push for more states to repeal the current statutes, as Idaho has done.
While most states with filial responsibility laws requiring children to support impoverished parents favor general statutes defining a reciprocal duty of support between the children and parents,3 some states—like Pennsylvania where enforcement is usually seen—provide more detailed statutes.4 These statutes normally provide joint and several liability for the adult children, but may require, like in Pittas, the named defendant adult child, to join others in a civil suit to share liability.
Regardless, the case law in this area—with the exception of Pittas—is minimal and inconsistent. For example, the courts in Kentucky have noted that responsibility of children for debts of parents to third parties, even for necessities, is not common law and only possible by statute, in this case, Ky. Rev. Stat. § 405.080.5 The Kentucky courts further construed their own statute to provide for the duty of support only for personal care and not arise to liability by adult children to providers of necessities for their indigent parents.6
Other states have narrowly construed the duty in other ways, and carved out times when liability will not be imposed. For example, in Connecticut, like in Pennsylvania, adult children bare liability, but not if their parents have abandoned them in the past.7 Abandonment is a common defense to filial responsibility law suits. However, the courts that have addressed this issue have not only put the burden on the child to show abandonment, but have in many states, specified a period of time (ten years in Connecticut and Pennsylvania)8 over which the abandonment must have occurred and a standard for what qualifies as abandonment.
Connecticut also held that any abandonment which might negate liability or a duty of support, must be for 10 continuous years prior to when the child reached majority as defined by the state’s statute.9 The Connecticut courts further held that the abandonment must be purposeful and not caused by circumstances out of the parent’s control.10 Mere failure to support the child physically and financially was held not to be enough to constitute abandonment if the failures were not purposeful.11 Another defense to liability is indigence on the part of the adult child, as seen in Pittas. However, the Court in Pittas placed the burden of showing an ability by the adult child to pay on the party seeking to hold the child liable.12 Many statutes indicate the liability is based on the ability of the adult child to pay.
Additionally, courts have been reluctant to interpret the reciprocal support statute to allow providers to seek joint and several liability for parents’ debts from adult children. Courts have held that for a third-party provider to be able to collect from a child for necessities provided to the parent, all remedies against the parent must be first exhausted.13 The liability thus imposed is secondary, not joint and several. The Pittas court did generally find for joint and several liability between financially solvent siblings for the debts of their parents. Thus, states seeking to provide nursing homes with collection tools that reduce the need for Medicaid may seek to follow the Pennsylvania route to a new frontier.
Due to inconsistent statutes and case law nationally, providers—especially nursing homes—often faced with patients who are trying to become indigent so as to qualify for Medicaid, should contract with the patients’ adult children so that the children can become otherwise bound to pay for the parent/patients’ bills. Contracts can provide sure remedies where the law is uncertain. A clear, unambiguous contractual duty is the best protection in such an environment.
1 See 23 Pa.C.S.A.§ 4603
2 See S.L. 2011, Ch. 149, § 1, effective July 1, 2011, repealing Idaho Code § 32-1002.
3 See, e.g. O.C.G.A. § 36-12-3; Alaska Stat. § 25.20.030; Iowa Code § 252.2; and N.D. Cent. Code § 14-09-10.
4 See e.g. Va. Code Ann. § 20-88; Burns Ind. Code Ann § 31-16-17-4; and Nev. Rev. Stat. Ann. § 428.070.
5 See Woods v. Ashland Hospital Corporation (1960), 374 S.W.2d 510 (KY App.)
6 See id.
7 See Conn. Gen. Stat. § 17-326; see Pittas, supra, and 23 Pa.C.S.A.§ 4603.
8 See supra.
9 See Pelletier v. White (1976), 33 Conn. Supp. 769.
10 See State v. Berglund (1967), 4 Conn Cir. Ct. 644; 238 A.2d 450 (holding that a mother who did not take care of her child due to mental illness and addiction, but who did seek custody of him and was denied, did not abandon the son so that he was relieved of his duty to care for her when he became an adult and she became indigent).
11 See id.
12 See Pittas, supra.
13 See Dutton v. Wolhar, 809 F.Supp. 1130 (D. DE 1992) and Trinity Medical Center, Inc. v. Rubbelk (1986), 389 N.W. 2d 805 (N.D.)