What Are Filial Laws?
Filial Responsibility Laws are a diverse collection of statutory obligations, recognizing a child’s legal responsibility to support a parent that has become poor and dependent upon the state for care. The intent behind the laws is to create a derivative method for providing financial support to pay for approved medical, housing and other expenses of indigent parents long since applied to the same situations by legislatures to spouses in relation to the debts and needs of husbands and wives.
The laws are by no means uniform. Most states have adopted several separate statutes focused on the support of the elderly citizen but other states have even applied the laws to non-elder relatives as well. Florida is one of the few states with no filial laws of any type, though under current proposals in the Florida House , this will change and courts would have the authority to require a child who is either of legal age or emancipated to contribute to meet the "reasonable cost of caring for the parent" when unable to pay for medicaid approved residential care.
Filial laws were once prevalent throughout the United States and most were adopted in the late 19th and early 20th centuries. Somewhere between thirty and half the states maintain some form of filial law today, Utah, Oregon, North Dakota, New Hampshire and Florida being the sole states with none.
All filial laws are civil in nature. Enforcement is always by action for damages. No one in the United States has ever been sent to jail for refusing to support an elder parent due to the lack of ability to pay. Philial laws have been utilized by the state to pursue claims for children working in his/her own best interest while receiving medicaid benefits for a parent, often referred to as "Medicaid Estate Recovery". Other States have used them against children sharing their parents home while paying less than fair market rent as a means of contributing household expenses.
Filial Laws on the Books in Florida
Currently, Florida is one of only five states in the country without a filial responsibility law. The other four states without laws are Michigan, South Dakota, Utah and Washington. All of these states but Washington also lack Medicaid programs, meaning these states do not have recourse under Medicaid to collect money from, or to deny coverage under, a requirement that children support their parents.
The Florida legislature introduced House Bill 743 in 2005 and Senate Bill 798 in 2011 which would have enacted a filial responsibility law in Florida, however, these bills have yet to pass. Despite that, Florida courts have discussed the concept of children’s obligations to pay for their parent’s care.
In 2008, the Florida Second District Court of Appeals in Croff v. Rivkind, confirmed Florida remains free of filial responsibility statutes when they stated: "this state has no equivalent of the filial responsibility statute at issue in Peterson v. Oregon Health Sciences University, 348 Ore. 563, 236 P.3d 757 (2010).
Like other states, Florida courts will enforce contracts and agreements between an adult child and his or her indigent parents in regards to support if that contract is supported by consideration (the receipt of something of value in return). For example, in 2003, the Florida First District Court of Appeals in Stalnaker v. Stalnaker, confirmed contractual agreements between a parent and child are enforceable.
In Stalnaker, the Appellee claimed her mother orally promised her and her husband she would have her will written to reflect that they would inherit her property in exchange for them taking care of her. The mother never kept her promise to leave her property to her daughter and son-in-law, however, she did gift them money over the years. After the mother died, her daughter and son-in-law sued for the property claiming it was compensation for having taken care of her over the years.
The trial court agreed and issued a judgment in favor of the Appellant for the amount of the gifts received but reduced the amount based on the dollar value of the care provided. The Florida First District Court of Appeals later affirmed this decision stating the Appellee provided care in exchange for the gifts and the heirs are entitled to compensatory damages to the extent the gift exceeded the value of the benefits conferred.
The Florida Department of Children and Families recently recognized that many elderly Floridians live below the poverty level and struggle to care for their basic needs, such as food and shelter. Because of high costs of living, medical expenses and rising housing costs in Florida, the State does not have the financial resources to meet the needs of low-income individuals of all ages and has recently sought the potential benefits of adopting a filial responsibility law, at least for the purposes of Medicaid budgeting.
If Florida were to adopt a filial responsibility law, statutes mirroring those of California, Pennsylvania and North Carolina could be considered. Legal analysis should include what level of care must be provided, who is obligated to provide support, what kinds of expenses are covered, are there enforcement mechanisms, and should any exemptions apply.
Legal Obligations and Exemptions
Filial responsibility laws in are designed to shield the state from having to care for elderly individuals whose families can provide for their needs. However, there are many exceptions to how these laws can be enforced. Before assuming that you are responsible for your parents’ financial well being because you have some money set aside, it is important to gain an understanding of how far the law can go.
Financial incapability. If the adult child cannot pay expenses due to their own financial situation, it is unlikely that they will be liable for their parents. Usually only able-bodied, financially capable adults can be held to filial laws.
Child abuse. Most states provide an exception to liability if it can be shown that the adult child has abused the parent. This can include psychological and financial abuse to a parent who is deemed incompetent.
Lack of relationship. Generally speaking, some form of relational history is needed between the parent and child in order to determine that the parent-child relationship exists. If the relationship can be determined as non-existent, or non-legal, then the adult child is unlikely to be held responsible.
Penalties for Not Following the Law
In some states, negligent or intentional failure to fulfill a filial responsibility to an elderly parent can lead to both civil and criminal penalties. However, Florida law does not impose legal obligations upon children to pay for the costs of a parent’s long-term care.
Because no law exists in our state providing for filial responsibility, actions to collect unpaid expense for nursing home or similar care would have to be pursued by the facility on a case-by-case basis under contract law. If the debt is reduced to a judgment , the creditor may bring an enforcement action against the debtor’s income or assets.
While some states impose hearing requirements regarding a child’s ability to pay before a creditor can obtain a judgment against the child to collect the debt, no such hurdle exists in Florida. However, given the fact that payments to a creditor would require the use of the child’s income or assets, rather than the income or assets of the parents, filial responsibility cases rarely go beyond a hearing or trial level.
Elder Care Planning in Florida
Regardless of the specifics of any law, the best advisors will have a good plan for the future that puts everything in place for the family, including their elder care. What are some of the real options and futures that could be planned for?
- Live well. First of all, I try to make sure that my clients don’t assume that they are going to be absolutely sick or impoverished later in life. It is always possible for a person who feels fine now to be in a debilitating accident tomorrow. People get much older than is expected. Brain chemistry changes. Some people go into dementia, while some remain lucid into their 100’s. So, planning shouldn’t be limited to situations where everything bad happens. Always plan for the best, but be prepared for the worst. Have a good financial plan drawn up, and be willing to change it when better health results, or even worse health is revealed. You may find that you want to get assistance from government programs, with less comfortable results. See what is available.
- Medicaid and Veterans Benefits. In Florida, Medicaid becomes available after certain income and asset tests are met. If a husband and wife are together, the monthly limits can be as low as $1148.00 per month. If the family has complete retirement and financial income, then spend-down to qualify for Medicaid. If they have very little cash, simply leave them alone. Likewise, veterans benefits pay for long-term care where the veteran qualifies (not just the veteran, but also the spouse). The monthly limits for this are higher than for Medicaid, but nonetheless must be spent-down like Medicaid.
- Long-Term Care Insurance. Long-term care insurance exists to cover the situation where someone can’t get home and community-based services, such as living with an adult child. This means that regardless of income being available to pay for senior housing or assisted living, the need for nursing home care is present. Therefore, the private sector should expect to take over the payment of this expense. If you don’t have insurance and would like to purchase it, be sure to contact an agent who at least knows something about elder care to assist you in the purchase. Apple and Pear insurance agents paid for through the purchase of their policies are not elder care experts and not much better than blindfolded stars at darts. Don’t purchase long-term care insurance unless you really need it. In other words, if you can afford to pay for the nursing home without it, you probably don’t need it. If you lie about your assets when you get it, the insurance company will figure it out when you apply for coverage to determine your net worth. Does anyone really think that they won’t be found? Don’t take the risk.
- Medical Surrogate. This is always needed if one of the spouses is unable to communicate competently with own spouse. A medical surrogate can be designated in advance by a competent individual. This authorization becomes effective when the doctor determines that the individual cannot communicate adequately or reliably. Many doctors give a form to the patient to sign when the individual is first taking the medicine, or settling into the hospital room.
- Pre-Need Funeral Plan. Some individuals are very concerned that the legacy of their lives not be on the table of any nursing home. For these individuals, planning is critical. They can pre-pay for their burial, and then have the money returned to their family when the time arrives.
- Guardianship. Most people need to have wills, but many people do not have durable powers of attorney. This is because people simply dismiss the value of guardianship as too far out. However, when someone is truly incompetent, guardianship is needed. Having a better system in terms of getting our loved ones declared incompetent is needed. If you are going to do it on your own, be sure to ask the doctor for a reference – in writing. Doctors sometimes refuse to sign a letter on the spot because it implicates him on liability. Because most doctors are in private practice, they can’t become involved and not get sued. In short, they run from the issue by refusing to participate. Every once in a while a doctor will bless as surrogate, but it is rare.
- Estate planning. Some individuals simply do not have wills. For all persons with potential needing long-term care, the loss of a durable power of attorney means that they cannot "transfer" their assets to their family. These assets, once they are owned by the person with disability, are included in the person’s net worth calculation, and pre-need plans are prohibited.
- Other choices to consider: Using a home equity line of credit to pay for either cash accountable care, or skilled nursing facility payments is one way to utilize our grossly overpriced housing market in Florida. Many people can’t afford their high nursing home bills – the estate has to come back to life (often using from 2 to 5 times the amount of income) to pay for the bills. Because the nursing home has a lien on the home, the property must be sold using a guardian, creating further delays and expenses.
Advocacy and Legal Resources
When it comes to understanding and dealing with filial responsibility laws, it’s crucial to have access to the right information and resources. A variety of advocacy groups and legal resources are available to assist individuals and their families in Florida in navigating the complexities of these laws and responsibilities.
While awareness of filial responsibility laws has increased in recent years, many people still hold a general lack of knowledge about these laws. For this reason, support organizations are available to help educate those working in the health care and social services fields about elder care law and how to best deal with the responsibilities they entail.
Advocacy groups are available at the state and national levels. Such organizations include the National Association of Medicaid Directors, the National Conference of State Legislatures, the Elder Care Locator , the National Guardianship Network and the National Academy of Elder Law Attorneys. These groups take on the role of educating individuals about the intricacies of elder care law. They also serve as lobbying groups to help enact legislative changes that benefit care for the elderly.
Legal assistance is another way to increase your understanding of filial laws. Many elder law attorneys offer free consultations and educational seminars to discuss your challenges and needs as they relate to elder law in general. Medicare counselors and Medicaid planners can also help you understand available programs and which could be best for your situation.
Various online resources are available for those who prefer to do their own independent research. Basic research tools, such as Westlaw and Lexis Nexis, offer legal research apps for iOs and Android devices. These apps provide access to case law, statutes, and legal research. Government websites also offer a good starting point for Florida statutes and other information in regard to elder law and care.
When it comes to an understanding of filial responsibility laws, it’s important to have the proper support and resources. Whether you might require legal assistance or general advice about elder care, options are available to help you navigate this complex area of law.