Filial Responsibility: An Overview
Filial responsibility laws are laws that create a financial obligation for adult children to care for their parents. There are 27 states in the United States that have filial responsibility laws, all of which impose a duty for adult children to support their parents by paying for their long-term care. These laws have been in existence in some form for centuries. Colonial English common law included filial laws that required children to provide care for their parents. This requirement eventually found its way into American statutory law, and many states passed statutes from the 1800s to 1970 that imposed criminal or civil penalties on adult children who did not support their parents.
Pennsylvania was the first state to pass an explicit filial responsibility law, which occurred in 1971 as a result of obvious concerns about "burdened" adult children. Pennsylvania’s long-standing law allows parents to sue their children for the cost of support and care. In 2012, there were more than 300 filial responsibility cases filed in Pennsylvania, and at least 30 other states have very similar laws to Pennsylvania, but with each being unique in their own way.
California’s filial law, California Family Code § 4400, is not a civil suit brought by the parent against the child, but rather a criminal provision, which makes it a misdemeanor for an adult child to desert or neglect their parent. The statute provides that "[a]ny person who has the care or custody of a parent and who willfully fails or refuses to provide for the support of that parent without good cause is guilty of a misdemeanor . " Like most states with filial responsibility laws, California’s law does not define "failure to provide for support."
To understand the nuances of California filial law, it is helpful to look at the legislative history behind the adoption of the law. Prior to the adoption of California Family Code § 4400, California did not have a law obligating adult children to care for their parents, and California was one of the few states in which this was true. Family Code § 4400 was introduced into California law as a result of a report by a California Senate Subcommittee on Aging and Long-Term Care, which found that there was a need to "clarify the fact that children and parents have the personal and legal right of mutual support." As a result, Family Code § 4400 was introduced and adopted in 1984. Family Code § 4400 was supposed to be a step toward protecting the stability of the family unit in California, and assisting in the care of aged and disabled parents.
While California is one of the few states that has retained their civil law, 13 states have replaced their criminal statutes with a civil law and 7 states have abolished most or all of their filial laws. The trend in the past thirty years is for states to recede from the strict approach used 30 years ago. Despite this trend, filial responsibility and parental support obligations still continue to be an issue in litigation.
Filial Responsibility Law in California Today
California is one of the few remaining states with laws addressing filial support. Yet, in practice, these laws are all but unenforceable. In fact, in the last 15 years, there has not been a single reported case considering the enforcement of the state’s filial responsibility statute.
California’s Family Code Section 4400 provides, in pertinent part, that an adult child of a "poor parent" is responsible for the "nourishment or support" of his or her parent if and only if the child has the financial ability and the parent does not. There is no bright-line test to determine incapacity, and the statute provides "evidence" of such incapacity of the parent by (i) the parent lacking legal capacity to make medical decisions for himself or herself, (ii) the parent being found physically or mentally incompetent in the context of civil, criminal, or probate proceedings, and (iii) the appointment of a conservator for the parent. However, mere incapacity is not determinative of a legal obligation to provide support. Instead, the law includes other factors to determine which children – if any – are legally required to provide support. Specifically, the statute turns on whether each child has the financial ability to provide the necessary support, considering such child’s assets and income in light of his or her primary expenses. Also, if more than one child is able to provide support, Division 9 of Part 3 of the Family Code, commencing with Section 4400, requires support to be provided by children in proportion to their respective circumstances and abilities to provide such support. To that end, one court has suggested that the child’s net worth should be considered when applying this statute.
In addition, the statute is limited in scope: it only applies to adult children of a poor parent. An adult child is defined as a child who is age 18 years or older and who is not living with the parent. Poor parent means that, at the time support is sought, the parent is impoverished to the extent that the parent cannot access or convert his or her assets to liquid assets (assistance in converting them to cash, liquidating them, or borrowing against them), or that the value of the parent’s property, less available government benefits and resources, is not sufficient to meet the parent’s immediate needs without considering continuing or future needs.
Implications for Families and Individuals
Enforcement of filial responsibility laws can take a huge financial as well as emotional toll on families and individuals. The average cost of nursing home care exceeds $9,000 per year and such long-term care requires numerous out-of-pocket expenditures. It has been estimated that roughly 50% of U.S. citizens 65 years and older will require some long-term care sometime in their lives and that it will be a family member who bears that expense. Other estimates predict the number of people with Alzheimer’s and other age-related forms of dementia to double by 2030 to 8 million. Every year, thousands of elderly individuals reside in nursing homes and other long-term care facilities. Together, these statistics indicate that an increasing number of adult children will be impacted by filial responsibility laws in the near future. For illustrative purposes, let’s take a hypothetical example. Suppose an adult daughter with two children and a part-time job is supporting her 75-year old mother who suffers from Alzheimer’s Disease and lives in the daughter’s home. Suppose the mother’s total income is just $600 a month in Social Security benefits and she has no resources otherwise. Suppose also that mom begins to need more care than her adult daughter can provide, so mother is admitted to a skilled nursing facility for nine months at the cost of $12,000. However, the cost of that care exceeds the projected $6,600 in average annual Social Security benefits. The mother is, therefore, deemed financially irresponsible under Code Section 1250 and is required to pay the excess amount and all of her $600 Social Security benefits to the State of California. If we assume that the daughter is not willing to financially settle with the nursing home for the $12,000, she will have to come up with the funds from her own resources. And then she will have a bill for the balance due to the nursing home when mother is discharged. Assuming that the daughter earns about $3,000 a month from her job, pays $600 per month for her family’s rent and another $300 for miscellaneous expenses, she will have $2,100 left over at the end of her budget each month for food, gas, utilities, childcare, clothing, medical costs, and other expenses. If the nursing home will not settle for less than the $12,000, the daughter will have to contribute $1,300 or more from her already strapped family budget to cover the excess amount owed to the nursing home.
Defenses and Exceptions
Filial Responsibility Laws, which make children financially responsible for the care of their aging parents, can be complex and raise many questions. When facing filial responsibility claims in California, understanding legal defenses and exemptions to California’s filial responsibility laws can help mitigate obligations under these laws. This section provides an overview of such defenses and exemptions.
Questions and Answers
Q: What legal defenses are available?
A: Although legal defenses to California’s filial responsibility laws remain limited, several defenses may be investigated, including:
Children may have a defense if they can prove undue hardship. If the child’s circumstances make primary responsibility for a parent’s debt or expenses an undue hardship, many states allow children to have a lesser payment amount set or removed all-together.
California’s failure to mitigate also may be a defense. If the child takes timely steps to prevent higher costs (for example: moves parents into a skilled-nursing facility rather than allowing parents to remain at home with an expensive caregiver), the costs may be reduced or eliminated.
Q: What exemptions are available to help reduce or eliminate costs?
A: Exemptions for dependency on government assistance may be available in California. For example, if the aging parent is a dependent of the state or local government, the child generally will not be held responsible for expenses on behalf of the aging parent.
Q: Do estate recovery exemptions apply to filial responsibility laws?
A: No. Filial responsibility laws are separate from estate recovery requirements.
California Filial Responsibility Cases
There are varying opinions in California courts about the application of filial responsibility. In the 1991 case of Davis v. Clayton, Division Three of the Second District Court of Appeal, held that a parent is "entitled to explicit findings and an opportunity to present evidence that the needs of the elder can be otherwise met." (Davis v. Clayton, 83 Cal. App. 4th 1015, 1020 (Cal. Ct. App. 1991)). The question at issue in Davis was whether the children were responsible for their parents’ care and medical bills. Clayton, the estranged father of four adult children, incurred $40,000 in medical bills as a result of his declining health. The California Department of Health Services sued him for money and received a motion for summary judgment against Davis, one of them. Davis contended that her brothers would be obliged under filial responsibility laws to pay for the medical expenses, which the trial court apparently found to be insufficient evidence to deny summary judgment . In reaching its decision, the appellate court differentiated this case from others where no opportunity for a defense had been given to a parent. The court cited two other cases, Thornton v. Shaffer (1981) 119 Cal.App.3d 51, and In re David B. (1978) 80 Cal.App.3d 250, both of which were decided on constitutional grounds regarding due process and equal protection and held that the issue was not whether visitation rights should be denied, but that the parent was entitled to an evidentiary hearing on the issue of support. While filial support laws are not new, they are far from commonplace. In addition to California, Pennsylvania is the only other state that has considered filial responsibility in the context of a punitive court decision upholding familial obligations. In 1797, Pennsylvania became the first state to specifically require the support of parents by their adult children. This was during a time when public assistance programs were virtually non-existent, and the only alternative was the workhouse, or almshouse.
Tips for Families Concerned with Filial Responsibility
If you are worried about the potential that you will be responsible for the debts of your aging parents, there are some steps you can take that may ameliorate your filial responsibility.
First, it is always a good idea to understand your obligations under the law, so that you can properly plan for the future.
Second, you should discuss with your family members how they intend to care for the elder parent(s). In other words, is it realistic to expect the eldest child, or any one family member, to provide all of the care or financial input that is needed, or would it make more sense for the kids to share the responsibility? In California, for example, the law will only hold you responsible if in fact you are the one providing most of the care for the elder parent. The question isn’t whether you have a legal obligation to pay for the parent’s care if the parent’s needs require it, but whether you actually did pay for it and therefore the law should hold you responsible. If several siblings have the responsibility to care for a parent, then it becomes less likely that the law will find that you were the sole caregiver for the parent.
Third, you should consider having your parent(s) create financial estate plans that offer long-term care alternatives, often known as hybrid insurance products. The purchase of long-term care policies and the consideration of other long-term care planning strategies is an important component of elder law practice. It’s important to look at this issue early on before an elder parent requires significant care.
Fourth, determine whether you have any rights or options under elder abuse laws. The elder abuse laws are broad and may offer some reasons to contest the enforcement of filial responsibility obligations, especially if the elder parent was under some duress when the child signed a document agreeing to take on the costs of their care.
Filial Responsibility in California: A Look Ahead
The future of filial responsibility laws in California rests on numerous evolving trends primarily related to the financial burdens of long term care and the increasing prevalence of medical costs and complex care needs among aging residents. Some of these issues are now bringing about significant calls for reform.
Aging population: California’s population is rapidly aging and as this trend accelerates, the need for continued social services will be greater. The primary concern is that there is not enough money to finance these growing social programs. The state will expect the children of these older Californians to step up and help cover the costs associated with these services.
Medicaid: The California Medicaid program (Medi-Cal) has never used filial responsibility laws to collect from the adult children of Medi-Cal recipients. The state allows for the recovery of benefits when the deceased recipient had Medicaid-funded long-term care services. Reforms will likely require those in the community (as opposed requiring those who can afford to pay for their own care) to finance long-term care through a more flexible Medicaid system. Medi-Cal is already facing insolvency due to long-term care services.
Even without these reforms, California is experiencing a shortage of long-term care facilities. The shortage is attributed mainly to the fact that most new long-term facilities cannot meet private pay rates. The use of strong enforcement of filial responsibility laws could be an effective means by which the state could better subsidize such institutions.
Financial responsibility: As the costs of regular long-term care or nursing home care have dramatically increased, financial responsibility for those with considerable resources and/or wealth – such as the "1%" – have become vulnerable to legal action under the current statutes in California. As the uninsured rate increases (e.g., as a result of the Affordable Care Act), the examination and application of filial responsibility laws will increase.
Litigating Filipovic: Filipovic v. Kramarsic (2012) previously set forth an example of the California courts indicating a willingness to examine a child’s assets at the time of suit for purposes of requiring reimbursement from those assets. In that case, Jerry Filipovic was sued under California’s filial responsibility laws for his father’s debts. California courts held the son accountable for his father’s medical bills because he refused to pay for them, but did not force him to sell assets held solely in his name. In the 2012 decision, the appeals court remanded for a new trial before a different judge because the presiding judge may have shown bias in requiring him to sell his father’s home, albeit without an explanation for the order. This opinion suggested that, at least in certain circumstances, the potential to have to sell a son’s home could mean families avoid formal proceedings in favor of informal collection efforts.
Explicit provisions: While the laws presently do not specifically require adult children to pay a parent’s medical bills, both Medi-Cal and the Department of Health Services (DHS) have encouraged such payments in recent policy statements. Such encouragement includes the DHS’s stated belief that adult children should contribute to the medical expenses of an indigent parent if they have the income to do so. It is unclear whether stronger provisions will be adopted in the future which require payment in certain circumstances.
Conclusion
While filial responsibility laws exist in only a handful of states, it’s important to know that there are consequences for neglecting to consider the financial implications of these laws. Especially in states like California where people don’t tend to understand what filial responsibility entails and that it could directly affect them in the unfortunate event their parents no longer can afford their healthcare costs. California has one of the more robust filial responsibility laws in the country , so it’s especially important to educate yourself on the potential risks and their effects on you personally. Whether you’re an adult child or an aging parent, consider your options and determine a path that will work best for you and your parents.