Editorial: Filial Responsibility Laws: The next iceberg for GLBT people?   (Early 2007, archive)

 

Typically, we hear a lot of moral discussion about people having kids and then dumping them. This transgression shows up in debates about premarital sex, welfare, single mothers, divorce, and particularly deadbeat dads. No one seriously challenges the idea that, if you have children, you must make raising them your first priority, within the limits of lawful behavior. Even among social conservatives, however, there is relatively little open discussion of the potential that an adult has legal and moral obligations to others with whom one did not choose a relationship. Specifically, one’s aging parents. It’s also useful here to digress a moment and note that sometimes unmarried and childless persons are pressured to raise siblings’ children (as in the film Raising Helen and series Summerland, this link). If blood family responsibility is expected of everyone, it can certainly affect those whose goals are more cultural and global than familial, but it can also lead to new political fights and various distortions. But we need to face this idea in open debate.

 

The subject is filial responsibility laws. These are laws on the books in many states and countries that would hold adult children responsible for financial support of indigent parents and, in some cases, medical and nursing home costs. For a variety of complex reasons, they area rarely enforced today in this country in a meaningful way, but they would make a tempting, but irresistible tool of the cultural right. A recent paper published by the National Center for Policy Analysis promoted the idea that states start enforcing and enhancing existing filial responsibility laws in order to save of Medicaid and other social service expenses; pressure to do so will increase as the elderly population grows, old people can be kept alive longer, birth among the affluent shrink, and state budgets come under even more squeezing.[1] The etymology of the word “filial” is interesting and telling: The Latin word was filius (son), which in French became fils.

 

It’s instructive here to split the discussion into two parts. First, survey the current legal issue, particularly in the United States. Then look at the moral arguments and possible extensions of mandatory family responsibility notions into other areas.

 

Current Situation:

 

No federal law establishes obligations of adult children to care for parents or any other blood relatives.[2]  England established a filial responsibility act in 1601 (sometimes called “Poor Laws”), but (despite Judeo-Christian tradition reflected in the Sixth Commandment) there is no such understanding in common law, so any obligations would be legislated by the states. A number of other countries do have such laws, and particularly in modern Asian countries (Singapore and Malaysia) they have been enforced with some vigor.[3]

 

Today, about thirty states have laws requiring adult children, based somewhat on ability, to provide financial support to care for indigent parents.[4] The most common requirement could be requiring children to reimburse states for some Medicaid nursing home expenses. Generally, in most states, actual enforcement has occurred only when a parent has tried to give away assets to children in order to “spend down” to Medicaid eligibility to go into a nursing home.[5] Generally, enforcement may occur if assets were given away less than three years before the parents’ entering a nursing home.[6] It’s important to note here that Medicare only supports actual medical care and nursing care (in a Skilled Nursing Facility) when a patient is expected to get better. Custodial care (in an Intermediate Care Facility) has always been the primary responsibility of the elderly person or of the state Medicaid program.  A few states include siblings and even grandparents under filial responsibility laws as written.

 

Legal responsibility in some states could extend to providing normal indigent care, also. 21 states provide civil responsibility, and twelve (including Maryland) provide criminal sanctions. California’s laws, however lightly enforced, sound particularly draconian. Virginia (where I live) has sometimes pursued children receiving nursing home parents’ assets. Three states provide both criminal and civil penalties. (I have not found a state-by-state chart yet, but will provide a reference when I find one.) States do provide exceptions, such as when a child had been emancipated.[7]

 

Why are these laws relatively rarely invoked?  There are several reasons. One obvious reason is that indigent or sickened parents may have few resources to fight. However, friends of these parents might be inclined to urge the parents to go after an adult child if the child was disliked for some cultural  or religious reason (and this could include sexual orientation).  A second reason is that many legal resources regard filial responsibility laws to be potentially unconstitutional.  The arguments raised include equal protection, due process, and violation of the takings clause of the 14th Amendment. An enforcement action that considered the ability of the adult child to pay might be more likely to withstand legal challenge. A third, and perhaps most important reason, has to do with the evolution of social entitlement programs in the 1960s.  The popular conception is that filial responsibility disappeared when Medicare was enacted, but that is not quite correct. Federal law [United States Code Title 42, §1396a(a)(17)(D)] prohibits states from excluding an person from Medicaid or other social services based on the financial responsibility of any other person except a legal (opposite sex in federal law!) spouse. The result of this law is that adult children might be able to enhance legal challenges to filial responsibility claims. There would be obvious questions when a target adult child resides in a different state (particularly one that does not have a filial responsibility law), and the Full Faith and Credit Clause could come into play in some hypothetical litigation. It appears that these laws apply  only to (besides one’s children) parents, not to siblings or other blood or legally defined relatives.

 

A case in South Dakota illustrates some of the legal complexities. South Dakota holds adult children liable for medical bills when parents are unable to pay bills themselves. A man received a personal injury lawsuit judgment shortly before his death, which would have made him able to pay his hospital bills. The hospital sued the children in equity, and lost.[8]

 

Filial responsibility can be complicated or undermined by other social programs. SSI  (Supplemental Security Income) payments (administered by Social Security, and not to be confused with social security retirement) are reduced when a parent lives with children who provide some support or care. 

 

There is no legal direct requirement on adult children (at the federal level or in any state) to become actual physical caregivers.[9][10]  Problems, as in my case, become severe when there are few children or only one child living in a distant city.[11] The practical pressure felt by adult children in such situations is, however, considerable.[12] [13] A report on NBC4 (Washington) on August 8, 2005 presented the caretaking issues presented to the so-called “sandwich generation,” baby boomers both raising children and caring for aging parents.[14] [15]In 1993, Congress, under pressure from the new Clinton administration, passed the Family and Medical Leave act, that forced larger employers to allow longstanding employees up to twelve weeks to unpaid leave to care not only for children or themselves but also for parents (not, however, for siblings).[16] The practical benefit of such leave is questionable, but employers would not be able to prove paid leave without taking out of other employees’ or stakeholders’ pockets. Children in distant cities might try to hire home health caregivers and then find that many of those available are illegal aliens; as with nursing homes, hiring help legally to do this kind of work has become more difficult since 9/11.[17] [18] [19] [20]

 

In a practical sense,. non-indigent parents with assets may be able to compel blood loyalty from adult children in probate, with their wills. One device is the “dead hand,” placing a will in trust and requiring the adult child to perform (or not perform) some duty indicative of family loyalty (such as marrying and having children, or providing caregiving to still other family members) to receive the bequest. This practice used to be somewhat common in Britain; it is not as common (though usually legal) in the United States. However filial responsibility laws kick in when parents are indigent (or have given away assets improperly to qualify for assistance).

 

Sometime nursing homes and home health agencies require adult children to indemnify them for parents’ medical bills when the children arrange care. This is legal in some states. Nursing homes, in particular, have been known to abuse elderly patients if they sense that blood family members are indifferent or if there is only one child and that child seems passive or uninvolved.

 

It is worthy of note (and a intuitive surprise to many people) that persons are not responsible for deceased relative’s debts, including credit card debts, and including parents and adult children. A deceased person’s estate, however, is responsible for debts before paying out inheritances or going through probate.

 

It’s unclear what happens when the adult child and indigent parent are in different states. The federal “look back” periods probably apply in “give away” situations. But in filial responsibility situations resulting from poverty of a parent in another state, it’s unclear. Generally “Full Faith and Credit” would make it possible to pursue someone in another state, but in practice the pursuit and collection might be very difficult and might not be attempted.  

 

Contrasted with the U.S.. Britain and other countries seem to provide more support for nursing home care, but the picture is complicated.[21] It is sometimes based on the assets of the patient.

 

The Moral Arguments

 

I come at this problem as an older gay man (and an only child who has not experienced emotional ties to biological siblings) who spent thirty plus years living as he liked in several urban “gay ghettos,” in considerable daily freedom without responsibilities to support others. My sexuality, I confess, is unlinked from motives that would provide emotional satisfaction from prolonged caretaking or, for that matter, protecting others or fighting for them just because they were “blood.” I lived in a competitive adult world with values, emphasizing voluntary relationships, that kept me away from the daily intimacies common in conventional families with married parents and children, connections that make filial care seem more natural later. The historical and cultural circumstances from about 1970 (barely “post Stonewall”) through 2000, the whole pre 9-11 period (and, up to about 1995, pre-Internet period), help explain my own life. Gay men were allowed more “privacy” and freedom and discouraged from taking responsibility for others.  This presents a marked contrast from pre World War II (and Depression) years experienced by my parents, when adults generally could not even rent their own private apartments (they lived in regimented rooming houses) until they married (presumably to have children and start families), and where the “non marrying kind” were expected to stay home and be available to take care of more “productive” (or perhaps “procreative”) family members—such a custom was particularly restrictive of women. I recent years I have been confronted, somewhat involuntarily, with my own issues of family responsibility. I don’t want to give personal details here, but I will outline some perspectives.  I notice an enormous range in the amount of importance people give to non-chosen blood relationships and the “unearned” co-dependencies that they create.

 

The moral and cultural questions seem to split into about three different directions.[22]

 

First, filial responsibility seems to suggest that our model of ethics as governed by individualism with contract law based on individuals’ actions is not adequate to take care of everyone and not a sufficient model for ethical behavior and attitudes.[23] Of course, religious people know this well. However, the original arguments for filial responsibility were that children owe their parents a “debt” for raising them. New York City mayor and former congressman Ed Koch had argued for filial responsibility laws in the 1970s even though he was single (New York does not have such a law right now). That sounds like a “contractual” argument, except that the child did not choose to be born, and certainly did not choose his or her parents the way he or she chooses a spouse or significant other. Libertarians are quick to point out that the lack of choice negates such a responsibility. Generally, existing filial responsibility laws excuse children who were abandoned (and this situation would apply to some GLBT people). People should marry and have children because they want to. Moralistic arguments supporting mandatory filial responsibility make marriage and family into a vehicle to validate one’s own social position and social credibility. This notion comports with the recent observations (usually made in trying to argue against gay marriage) often made by conservatives that admit to a certain psychological communism, that marriage has only been about “Love” for about 200 years and that its real purpose is to channel people into accepting intergenerational responsibilities, especially rearing the next generation as well as care for the passing one.[24] Even so, many position papers advocating filial responsibility emphasize the purely individual choices involved in carrying it out, such as using health savings accounts and purchasing long term care insurance; the trouble is that these measures work only for the self and make actuarial sense only for younger adults. Intergeneration responsibilities would come out of an ethical respect for the value of socialization, for building familial context into one’s own personal and expressive choices.[25]

 

This leads us to the second major area of argumentation, the so-called “self-reliance” argument, common especially before the New Deal, that families should take care of their own and not become public charges. This does indeed invoke images of right-wing extremist ideology. Imagine a world in which everything that a person, even as an adult, does is controlled by the head of his “family.”  This patriarchal arrangement is common in other cultures (especially in the Middle East) and fits well with the psychological makeup of fecund males.  If all social programs were eliminated and all eldercare was the legal responsibility of adult children, then of course we would tend to keep people trapped in existing class structures. Opportunity to escape from poverty would be reduced. Individualism, properly executed, actually helps people escape from disadvantaged background and level the playing field. In a world with strict filial responsibility and “loyalty to blood” people would be pushed into unethical competitive or hucksteristic behaviors for the benefit of “family,” whereas individual creativity would be stifled. Of course, the right can argue that in a meritocracy, a sufficiently able individual can overcome any obstacles, provide for his dependent family and still do his own thing. One very stark observation comes to mind: that any person can be expected to “compete” in an economic and often political fashion to prove that he can support other relatives before he is a respected and “free” adult, even if he or she “chooses” not to have children, so that might give an extra incentive to have children, even for people who perceive themselves as gay. There is a certain moral disconnect in all of this. It seems to be a call to make everyone value people “as people” before setting up their own personal principles to live by, as some kind of ultimate deference to the value of human life—at a horrible cost in forced conformity, loss of individual creativity and reinforced tribalism.

 

The deeper (third) argument has a lot to do with social justice. Those of us with enough freedom and stability to enjoy a life offered by a rich technological civilization certainly seem to owe something back to offer less competitive people a hand up. This responsibility can be met by having and raising children within the traditional family structure, and will provide more infrastructure for eldercare. However, some of this responsibility ought to go outside blood family. This gets us back to arguments about national service and the idea of “paying your dues

 

Demographics drive this argument. People can be kept alive longer and longer, often with diseases (especially Alzheimer’s) that remove them from society as independently “productive” within the norms of modern adult culture. The cost to children can be great, particularly in a filial responsibility climate, and can prevent children from pursuing their own otherwise chosen objectives.  Adult children living in a more individualistic culture may be unable to relate to the emotional bonding of kinship that used to be taken for granted and would drive the desire protect relatives, although often in older times aged relatives were “allowed” to die at a natural time after a natural course. A filial responsibility environment would provide an incentive for children to let severely disabled and demanding parents die sooner, and produce real issues regarding instrinsic reverence for human life. At the same time, many people are having fewer children, and these people generally include gays and lesbians.”   If some filial responsibility prevents someone inequitably from following his own choices, at least he has been required to prove that he can provide some support or accountability to others as the dues of freedom. Unfortunately, this gets to be taken as a justification for family for its own sake, as a cover for the individual people in it. 

 

To some extent, conservatives can buy some time by encapsulating caretaking obligations as just “personal responsibility.”  If persons like me know that we will face these obligations some day, we will be cautious and prudent and attend to such matters as long term care insurance, medical savings accounts, and care in choosing jobs of career paths that may prevent caretaking duties or undermine financial support the day those obligations come due. But of course that does weigh in on personal freedom. Caretaking duties, in practice, can interfere with one’s own relationships with chosen others when those relationships have no legal protection. There will be opportunities to use technology to reduce elder dependency, however, with new drugs to retard Alzheimer’s and other better health practices to maintain vitality and independence. Adult children can become involved in encouraging their parents to learn about these.

 

As the cost of dealing with social problems (specifically, a graying population) increases, there will naturally be a temptation to look for “scapegoats” and target people who seem to be evading taking on responsibility for others, especially having and raising their own children. If filial responsibility policy is designed around ability to pay (and it probably would have to be to pass constitutional tests) only children and persons who did not create their own families would make especially attractive “marks.”  The major practical risk would occur in situations where the parents become indigent and unable to pay custodial care bills after long periods in nursing homes or assisted living arrangements despite having sold most of their assets, in which case adult children could be expected to finance or physically provide care themselves. Some states could try to connect this with a homestead provision for otherwise indigent parents. Life-extending medical procedures, when publicly funded (by Medicare or by any future single payer system), could be tied to the availability of adult children to provide custodial care. Legal complications might occur when adult children live in different states, and could someday lead to attention from Congress or administrative federal policymakers or courts.  Honoring the right to life in eldercare situations (or situations of extreme disability as with the Theresa Schiavo case) can require real sacrifices of other family members. In a like manner, sometimes medical problems of any family member, especially children, can require tremendous sacrifices from other relatives.[26] I think a good case could be made for capping the period of filial responsibility exposure to the parent’s age, with a formula based on actuarial life expectancy, probably made gender neutral (since women live longer, although the gap could close in the future). This sounds crass, but it is a necessary public policy consideration. 

 

Gay marriage, of course, has been proposed as a way to encourage gay men and lesbians participate vigorously in sharing family responsibility and the burdens of raising children and, indirectly at least, eldercare, by helping them maintain a human infrastructure that can deliver this care (rather than being left to deliver the care themselves). For gays and lesbians, there is often a complication of alienation from parents and family. This is more often subtle tension than outright abandonment or expulsion by the parents in the past. The GLBT person may be pursuing his or her own goals in a way that other family members and especially parents regard is disrespectful or disloyal to the concept of the family as a unit. The GLBT person may also have, in longstanding manner, spent so much energy and attention on his or her own needs that he or she is simply not connected to the dire needs of blood relatives. In a small family, this may make providing care for elderly parents even more difficult. A GLBT person might have to abandon a personal relationship or other interest to care for a parent and be unwilling to join the parent’s “world.”  The cultural right, indeed, would have every reason to set up a circular catch 22, and deny gays and lesbians the right to form families of their own choosing, while holding them responsible for the heterosexual families formed by others. These conservatives would imagine that this situation would actually encourage “gays” to play along and have more children of their biological own and help reverse the demographic effects of lower birth rates. (The birth rate thing is skewed by race: African American and Hispanic minorities generally have more children; Muslim countries have much higher birth rates – an more interest in procreation – than do western countries. But within any given middle class or higher family, not having “enough” children is likely to leave the few children with big burdens, especially those without their own children. Most of our population growth in the US – we will hit 300 million in 2006 and hit 200 million in 1967, is related to immigration by minorities.[27]) Male gay psychology, because of its upward affiliation, leads to a dead-end trap in answering this, because gay men look up to those whom they perceive as more fit providers than themselves. Viewed at another angle, however, stricter filial responsibility laws (or enforcement thereof) might give gays an incentive to adopt children (in states where permitted), even as singles, confounding utopian conservative goals to socially engineer a “birthright” of every child to a heterosexually and legally married (female) mother and (male) father.

 

It is surprising to me that leaders of conventional gay rights movements don’t make this point more often. Attempts to strengthen legal filial responsibility could make gay marriage arguments more credible, and critical. Perhaps filial responsibility could make gay marriage more divisive, too, by adding to the notion that conventional marriage and biological parentage should be a prerequisite for social legitimacy. Filial responsibility could also strengthen “moralistic” arguments (common with sources like the Catholic Church) for universal or single payer health care—even if this seems like a paradox. 

 

One practical way a childless adult could give himself some protection from being pushed around by this kind of responsibility could be the old staple: buy a house, big enough for elderly parents to move into. It does mean more debt. But many states have homestead exemptions that might protect the homeowner from future filial responsibility claims, and the measure could keep parents out of nursing homes and assisted living. Furthermore, it helps keep the single adult in control. The practical reality is that filial responsibility could have a major impact on how a single adult can live and what he (or she) can do about his own life with very fundamental choices and directions. It is surprising that both the GLBT and conservative lobbies often miss this entire area.

 

The upcoming debate over filial responsibility as a subset of family responsibility bears a curious parallel to the health care debate. It seems that you can’t let people opt out. But let’s follow it through. There is already talk that young adults should be pressured their own long term care insurance and that it could be made easier to use pre-tax dollars to purchase this. We could augment this concept with pre-tax filial responsibility accounts,[28] which could even be set up (by public policy changes) to be partially matchable by employers. An individual would be required to maintain these based on his or her income and assets, and could be relieved of the responsibility (at least in part) upon having or adopting children (in a legal marriage – and that would certainly sharpen the debate over gay marriage and gay adoption!).  The contribution level requirements would not be affected by the life spans of parents (otherwise respect for life would be de-incentivized). Upon reaching a certain age (like full retirement age) an individual could withdraw what remained from the contributions (like an IRA).  One issue that such a policy change would address is falling birthrates and longer life spans – demographics. It would make a policy statement that everyone shares in filial responsibility, that it is a mandatory obligation of citizenship. There is a risk that such a change would resurface tribal thinking, as it would force everyone, whether or not he or she has children, to place a certain competitive emphasis on “protecting” his own blood—a development that many people seem to want, even though it could undermine fairness and objectivity. It does sound anti-libertarian and interventionist in terms of social engineering, but it would focus public debate where it needs to be. It defines filial responsibility as an individual responsibility metric and therefore is intrinsically objective and individualistic, and leaves the emotional carapace that shields many families from intellectual cogitation of the responsibilities intact, and variable among different families. (GLBT men sometimes feel less emotional affiliation for blood relationships because there is less motivational link through sexuality.) It seems inevitable that such a “modest proposal” will be made in Congress, and it probably needs to be.[29] [30] [31][32]  [33] [34]  

 

 

 

©Copyright 2005 by Bill Boushka  (Aug. 11, 2005); All rights reserved subject to fair use

 

 

Go to blogspot link on feedback from NCFR; Go to blogspot link on Pension Protection Act of 2006 (story in SHRM HR Magazine); Go to blogspot link on filial responsibility. Here is blogspot link on remote caregiving with video and webcams.

Go to “Brother’s Keepers” laws editorials on freedom; liberty; whether marriage is above love

Go to “Pay Your Dues” editorial

Go to “Gay Marriage” editorial

Go to health care editorial

Go to Controversial Issues Page

Go to July 2007 blogger entry;  subsequent entry on Virginia filial responsibility laws:

Letter to Congressman Moran (D-VA) on this issue

Comment from a reader (near bottom of page).

Return to home page

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



[1] Matthew Pakula, “The Legal Responsibility of Adult Children to Care for Indigent Parents,” Nactional Center for Policy Analysis, July 12, 2005: http://www.ncpa.org/pub/ba/ba521/  or http://www.ncpa.org/pub/ba/ba521/ba521.pdf

[2] Chris Kirkman, “It’s Time to Talk: Together, Adult Children and Aging Parents Should Plan for the Road Ahead,” The Washington Post, Business Section, F1, Dec. 10, 2006. The article does not directly mention filial responsibility laws, but it does go into long term care in detail. The article is here.

[3] There is a film by Manish Jha from India, Matrubhoomi (“Motherland”) about the tendency of Indian families to abort future baby girls. Couples prefer to have boys because men are expected to support their aging parents in Indian society, whereas girls cause an obligation to provide expensive dowries.  So moral custom built around strict filial responsibility can boomerang and lead to other immoral, although perhaps unintended, consequences.  See Sugita Katyai, “Abortions, infanticide alter sex ratio,” The Washington Times, Aug. 13, 2005.

[4] Here is a link giving a list of states with filial responsibility laws: http://everydaysimplicity.blogspot.com/2006/02/filial-responsibility-laws-list-of.html

(this reference gives thirty states) The article mentions an American Bar Association, Vol. 36, No. 3, Fall 2002,  paper by Shannon Frank Edelstone, “Filial Responsibility: Can the Legal Duty to Support Our Parents Be Effectively Enforced, 36 FAM. L. Q. 501 (2002).” Abstract (no paper) at http://www.abanet.org/family/familylaw/abst36-3.html

[5] Jonathan Wiesman, “Medicaid Cutbacks Divide Democrats,” The Washington Post, Nov. 28, 2005: The House passed a bill to make it more difficult for “affluent seniors” to pass assets to their children to “plead poverty.” Janet Wells, Director of Public Policy, National Citizens’ Coalition for Nursing Home Reform, points out that seniors would have to account for their donations and contributions for five years before declaring poverty. The Washington Post, Dec. 10, 2005, Letters to the Editor, p A20.

[6] The Deficit Reduction Act of 2005 (S. 1932) proposes changing the penalty period for giveaways from the date of asset transfer to the date of actual Medicaid eligibility disregarding the transfer. Here is the Kabb Law Firm reference: http://www.kabblaw.com/elder.html  There is a fear that nursing homes would be flooded with residents without funds to pay for care, and in the thirty states with filial responsibility laws the adult children will be sued.  This bill, according to Thomas.loc.gov, passed both branches of Congress.

 

Here is the wording: Note that the look-back period apparently increases from 36 to 60 months, also.

 

SEC. 6011. LENGTHENING LOOK-BACK PERIOD; CHANGE IN BEGINNING DATE FOR PERIOD OF INELIGIBILITY.

(a) Lengthening Look-Back Period for All Disposals to 5 Years- Section 1917(c)(1)(B)(i) of the Social Security Act (42 U.S.C. 1396p(c)(1)(B)(i)) is amended by inserting `or in the case of any other disposal of assets made on or after the date of the enactment of the Deficit Reduction Act of 2005' before `, 60 months'.

(b) Change in Beginning Date for Period of Ineligibility- Section 1917(c)(1)(D) of such Act (42 U.S.C. 1396p(c)(1)(D)) is amended--

(1) by striking `(D) The date' and inserting `(D)(i) In the case of a transfer of asset made before the date of the enactment of the Deficit Reduction Act of 2005, the date'; and

(2) by adding at the end the following new clause:

`(ii) In the case of a transfer of asset made on or after the date of the enactment of the Deficit Reduction Act of 2005, the date specified in this subparagraph is the first day of a month during or after which assets have been transferred for less than fair market value, or the date on which the individual is eligible for medical assistance under the State plan and would otherwise be receiving institutional level care described in subparagraph (C) based on an approved application for such care but for the application of the penalty period, whichever is later, and which does not occur during any other period of ineligibility under this subsection.'.

(c) Effective Date- The amendments made by this section shall apply to transfers made on or after the date of the enactment of this Act.

(d) Availability of Hardship Waivers- Each State shall provide for a hardship waiver process in accordance with section 1917(c)(2)(D) of the Social Security Act (42 U.S.C. 1396p(c)(2)(D))--

(1) under which an undue hardship exists when application of the transfer of assets provision would deprive the individual--

(A) of medical care such that the individual's health or life would be endangered; or

(B) of food, clothing, shelter, or other necessities of life; and

(2) which provides for--

(A) notice to recipients that an undue hardship exception exists;

(B) a timely process for determining whether an undue hardship waiver will be granted; and

(C) a process under which an adverse determination can be appealed.

(e) Additional Provisions on Hardship Waivers-

(1) APPLICATION BY FACILITY- Section 1917(c)(2) of the Social Security Act (42 U.S.C. 1396p(c)(2)) is amended--

(A) by striking the semicolon at the end of subparagraph (D) and inserting a period; and

(B) by adding after and below such subparagraph the following:

`The procedures established under subparagraph (D) shall permit the facility in which the institutionalized individual is residing to file an undue hardship waiver application on behalf of the individual with the consent of the individual or the personal representative of the individual.'.

(2) Authority to make bed hold payments for hardship applicants- Such section is further amended by adding at the end the following: `While an application for an undue hardship waiver is pending under subparagraph (D) in the case of an individual who is a resident of a nursing facility, if the application meets such criteria as the Secretary specifies, the State may provide for payments for nursing facility services in order to hold the bed for the individual at the facility, but not in excess of payments for 30 days.'.

 

Here is another good reference: http://www.tn-elderlaw.com/060208-dra1396p-1396r-5.pdf

U.S. News & World Report, Nov 27, 2006, has an article by Sarah Baldauf, “A Primer on the New Medicaid Rulebook: Why It’s Tougher Than Ever to Qualify for Help”. The penalty period starts with the admission to care, not with the giveback/

[7] As far as I know, adult children would generally not be responsible for deceased parents’ other debts, but there would be many wrinkles. Debts would be paid from an estate, liens and mortgages from selling a house (especially reverse mortgages, of course), and in some cases Medicaid rules discussed elsewhere here would become an issue. Of course, this could become a topic that could get the attention of conservative policymakers.

[8] Fleming & Curti, “Attempt to Force Children to Pay Father’s Hospital Bills Fails,” June 2003, Elder Law Issues, http://elder-law.com/2003/Issue1048.html

[9] Jane Gross, “As Parents Age, Baby Boomers And Business Struggle to Cope,” The New York Times, Mar. 25, 2006  ABC “Good Morning America” presented a two-part series April 7-8 on baby boomers caring for aging parents, and the financial squeeze, a report that seemed to take for granted filial responsibility. The report made some constructive steps, such as having the parent take out a reverse mortgage, hiring a nearby family member as a caregiver (if out of town), or setting up a dependent care account at work. The report said that some persons spend $400 a month with long distance caregiving. One could suggest an environment someday where unmarried adults might be discouraged from taking jobs away from elderly parents. 

[10] Christine Larson, “Finding a Good Home: Taking Care of Parents: A Guide to Making The Wisest Senior-Living Choice,” U.S. News & World Report, Nov. 27, 2006. The report did not directly mention filial responsibility laws.

[11] The National Institute on Aging, NIH, has a booklet So Far Away that gives general advice and maintains that long distance caregiving is very common (over seven million a year do long distance caregiving). The booklet does not say that there are specific filial legal obligations, but it unlikely that it would given the political and legal ambiguity. 

[12] Various religious groups hold that children owe their parents back availability for physical caregiving because they were raised by their parents. For Muslims, the Koran is not specific about this, but Islam has a tradition of avoiding nursing homes, although this may be changing. “U.S. Muslims Confront Taboo on Nursing Homes,” Lynette Clemetson, The New York Times, June 13m 2006.

[13] Virginia Morris, author of How to Care for Aging Parents: No One Plans to Care for a Parent (with Robert N. Butler; Workman, 2006) appeared on Aug. 28 2006 on the Today show to discuss sibling battles over aging parents, including “custody” and powers of attorney.

[14] On July 29-30 2006 the Washington DC Convention Center sponsored a caregiving expo. NACDS Foundation (National Association of Chain Drug Stores) and Berlex sponsored a workshop “Communicating with the Family Caregiver.” The speaker indicated that the average caregiver in the US spends $200 per month out of his own pocket on medical supplies, uncovered by insurance, for the elderly parent. That’s $4.5 billion a year total.

[15] In February 2007, NBC Nightly News aired a series “Trading Places: Caring for our Parents” starting with a series about NBC news anchors and their own parents. So far, legal filial responsibility hasn’t been mentioned, and generally parents have found care with assisted living facilities with their own assets.

[16] The Senate has a bill S. 1020, the Elder Justice Act (Orin Hatch, Blanche Lincoln) that would provide federal funding and oversight of Adult Protective Services, to prevent elder abuse, in nursing homes and sometimes at home by adult caregivers. It is not clear yet how this could affect filial responsibility problems. Source: LTE, The Washington Times, Aug. 3, 2006, from Joe Synder, National Adult Protective Services Association

[17] M. P. McQueen, “Employers Expand Elder-Care Benefits: To reduce absenteeism, more companies offer time off, insurance, home aides to caregivers.” The Wall Street Journal, July 27, 2006, p D1. In my situation a few years ago, there was a legal conflict of interest that would have prevented my employer then from helping me.

[18] California now has a law requiring paid family leave (for spouse, parent or child but would not yet cover same-sex partner; 55% of pay must be provided for up to six weeks, for max of $840. According to SHRM, many employers do voluntarily extend family leave beyond what is required by law. U.S. News & World Report, Nov 27, 2006, by Deborah Kotz, “Need Help? Ask Your Employer: A Growing Number of Companies Are Introducing ‘Eldercare’ Benefits”

[19] From the best that I can determine, federal tax law treats live-in care by a relative as a personal matter with no tax consequences unless the relative claims that he or she supports the parent. Then, for example, issues like fair market rent can come into consideration. But this seems like an ambiguous issue that could change in the future as policy makers become more aware of different situations and potential abuses. To be claimed as a dependent, there are income limits (outside of social security) that the parent must fall within, and they are quite limiting. Here is a typical reference: http://finance.yahoo.com/taxes/article/101925/help_from_uncle_sam_in_caring_for_your_aging_parent 

 

[20] Newsweek, June 15, 2007, has a long article by Barbara Kantrowitz and Karen Springen, “Confronting Alzheimer’s”, p. 55, as part of the “Boomer Files.:” On p 59 there is also an article by John Raymond, “The time for a frank conversation with your parents is right now: How to Talk About Aging,” as well as “A Guide for Caregivers. It’s a big, complicated job, and somebody’s got to do it. What you need to know to provide for your loved one.” The tone of these articles has shocking candor, particularly about finances, legal issue (durable power of attorney) and sibling resentments.   Blogger link: http://billonmajorissues.blogspot.com/2007/06/newsweek-features-coercive-issue-on.html

Also USA Today has a major series on eldercare edited and written by Mandy Fetterman Monday June 25, 2007, blog link here: http://billonmajorissues.blogspot.com/2007/06/usa-today-begins-week-long-series-on.html

In the Friday conclusion of this series, June 29, USA Today, p 3B, John Waggoner discusses the spend-down for Medicaid in detail, and tax strategies for orderly withdrawals. They are quite complicated, and often covered in financial planning courses in B-schools or offered to agents of life insurance companies. He recommends the National Academy of Elder Law Attorneys at http://www.naela.com

[21] Here are some reference:

http://www.jrf.org.uk/KNOWLEDGE/FINDINGS/socialcare/944.asp  (UK, 9/2004)

http://news.bbc.co.uk/1/hi/health/4951870.stm  (UK)

http://www.bupacarehomes.co.uk/asp/guidance/paying.asp  (UK)

http://www.manulife.ca/canada/Investments.nsf/Public/guaranteed_nursingcare_highcost (Canada, partial government or provincial responsibility only; it seems that sometimes there is filial responsibility)

[22] Other references:

Katie Wise. “Caring for the Elderly: Sharing Public and Private Responsibility for the Elderly.”  NYU Law School, May 3, 2002, http://www.law.nyu.edu/journals/legislation/articles/vol5num2/wise.pdf

Katherine Pearson, Pennsylvania State University, School of Law, “Agency and the Elderly: The Responsible Thing to Do about “Responsible Party” Provisions in Nursing Home Arrangements

Kisten B. Wilson, Bar Journal, 1999 Family Law Issue, “Filial Responsibility: A New Look at an Old Legal Concept”  Pearson also has a Dec 2006 paper from the Penn State law school here: http://www.dsl.psu.edu/faculty/pearson/RealWorldEssayOnFilialLaws2006.pdf   in which she points out that on 2005 Pennsylvania moved filial responsibility from the welfare code to the family domestic support code and made it parallel to spousal and child support, independent of pre-death giveaways.

 

[23] Suzanne Fields, “’Taking care’ in an aging society: Even the “Boomer” perspectives are changing,” The Washington Times, Oct. 3, 2005, p A19. She quotes a report by the President’s Council on Bioethics, “Taking Care: Ethical Caregiving in Our Aging Society”: “But in so doing, [emphasizing individual choice and planning] deliberately ignores the truth of human interdependence and our unavoidable need for human presence and care… The moral emphasis on choosing in advance needs to be replaced with a moral emphasis on caring in the present. The moral emphasis on independence needs to be supplemented with a moral commitment to serve the lives of those we love regardless of their disabilities,” words by Leon Kass. This sentiment was echoed by President Bush in his Inauguration Day 2005 speech; see http://www.doaskdotell.com/personal/quizessay.htm

[24] Some gay activists have criticized privatization of social security as harmful to gays because they bear.  fewer children who could support them in old age. This needs to be considered in conjunction with Galbraith’s Mother Jones article at http://www.doaskdotell.com/controv/socialsecurity.htm  But I think just structuring an argument around someone’s needs is lopsided; you need to balance needs and responsibilities.  For gays, this begs the question as to whether bearing fewer children is a “choice” (or “private choice.”)  I think that it is.

[25] U.S. News & World Report, Nov. 27, 2006, “A Safety Net That Might Not Hold: Long-Term-Care Insurance Doesn’t Have Many Fans, But That May Change,” by Mitchell Andrews

[26] Jason La Canfora, “A Son’s Offer: A Father’s Decision,” The Washington Post, Dec. 18, 2005, relates the story of Shawn Springs, a Washington Redskins cornerback who would have offered a kidney and given up his pro football career for his father, with end stage renal disease associated with diabetes. The offer in this case was not accepted. In the third season of TheWB’s Everwood, the character Amy has given up going to Princeton when her mother develops spinal cancer.

[27] Nevertheless, see David Crary, Associated Press, “Bigger families gain in popularity; for many parents, two is not enough,” Oct. 9, 2006, reprinted in The Washington Times. There is a very slow growth in births to families already with two children.

Blaine Harden has a story, “America’s Population Set to Top 300 Million: Immigration Fuels Much of Growth,” The Washington Post, Oct. 12, 2006, in which he reports that non-Hispanic white women average one child less than Hispanic women.

[28] Although dependent care accounts would apparently accomplish this.

[29] See also notes about an ABC report about family responsibility discrimination in the workplace, at http://www.doaskdotell.com/content/wchap5.htm, note 143c.

[30] See also the New York Times story by Jane Gross, “Elder-Care Costs Deplete Savings of a Generation,” Dec. 30, 2006. My blogspot entry on it is http://billonmajorissues.blogspot.com/2006/12/filial-responsibility-burdens-major-ny.html   The article is at http://www.nytimes.com/2006/12/30/us/30support.html  (may require online subscription).

Another major link from the "Marriage and Family Encyclopedia": Filial Responsibility - Filial Responsibility Laws

[31] As far as I know, adult children are normally not responsible (out of their own separate money) for deceased parents debts (accept on joint accounts or contracts or if they had joint bank accounts); if they inherit estates, however, they have to pay debts (like reverse mortgages) owed on what they inherit. Again, the Medicaid “look back” period has increased (note above) and is tricky.

[32] Another reference is from 2005, “The Legal Responsibility of Adult Children to Care for Indigent Parents,” here, suggests “installment payments.”

[33] Another interesting reference dates back to 1956 by David Mandelker, “Family Responsibility Under American Poor Laws II” on Jstor, but only one page is viewable free, here.

[34] In China, a related concept is called “filial piety.”