Adult children have long cared for aging parents simply out of a sense of moral responsibility—not because of a legal obligation. And yet over half of all US states have what are called filial responsibility laws, a subset of elder law. These laws make adult children responsible for their parents’ financial obligations if the parents can’t afford to take care of themselves.
While you might not be familiar with the concept, filial responsibility laws have been around for a long time—a really long time. They’re based on English statutes dating from the 1500s, a time when that country faced widespread poverty and enacted “poor laws” to codify family commitments.
Historically, filial responsibility laws have been enforced only rarely in the United States. In fact, the number of states with such laws has consistently dropped with the implementation of safety net programs, like social security and Medicaid.
Elder law experts caution, however, that the lax enforcement of filial responsibility laws could change, as states look for ways to curb Medicaid spending, which includes nursing home care for indigent elders. Healthcare costs for the aging population are rising, and states (and in some cases healthcare providers or other creditors) may use these statutes to seek payment from children for expenditures on behalf of their parents.
Family dysfunction doesn’t matter
This legal responsibility can create additional difficult issues for families already struggling, often for years, with strained family relationships.
In Pennsylvania, for example, the law allows plaintiffs to seek reimbursement from children, regardless of the status of the relationship between the parent and the child. The only exception is when a parent abandoned the child for 10 or more years while the child was a minor.
Ability to pay
What if the adult children cannot afford to cover an impoverished parent’s obligations? The same Pennsylvania law carves out an exemption for individuals who do not have “sufficient financial ability to support the indigent person.” Elsewhere, a study of filial responsibility laws found that most states give judges latitude to weigh the adult child’s ability to pay, allowing the court to consider such factors as the need to save for retirement and for their own kids’ college education.
Estates left insolvent can also get relief from creditors through bankruptcy, although that option has obvious drawbacks for those who may have financial obligations tied up in the estate. A bankruptcy lawyer can help sort it out if necessary.