Neil Hendershot has an excellent post today on Pennsylvania’s Filial Support Statute. He quotes Professor Katherine Pearson’s sidebar in the Summer 2008 issue of Adventures in Law and Aging, "“SO, WHAT IS THIS ‘FILIAL SUPPORT’ THING?” and provides many citations to useful resources.
This is a signifcant moral as well as legal issue. What is your obligation to your parents?
A frail old man went to live with his son, daughter-in-law, and young grandson. The old man’s hands trembled, and he often spilled his food. He dropped a good piece of china, breaking it. Exasperated, the son and daughter-in-law made the old man wooden bowls and spoons and told him to eat in the kitchen while the rest of the family ate in the dining room. One day, the little boy was playing with wood scraps on the floor. "What are you making?" his parents asked. The boy answered proudly, "I am making wooden bowls and spoons for you, so that when you are old you can eat in the kitchen just like grandpa." The words so struck the parents that they were speechless. That evening the husband took Grandfather’s hand and gently led him back to the family table. For the remainder of his days Grandfather ate every meal with the family and no one seemed to care any longer when a fork was dropped or the tablecloth got soiled.
Filial responsibility is the personal obligation or duty that adult children have for protecting, caring for, and supporting their aging parents. Filial responsibility is recognized as a moral duty in most cultures and religions. Is it a legal duty? The duty of parental support is created by statute. Under ancient common-law, an adult child had no duty or obligation to contribute to the support of his parents. In England, a statute changed this in the 17th century. The Elizabethan Act of 1601 for the Relief of the Poor, provided that “[T]he father and grandfather, and the mother and grandmother, and the children of every poor, old, blind, lame and incompetent person, or other poor person not able to work, being of a sufficient ability, shall, at their own charges, relieve and maintain every such poor person.” These Elizabethan poor laws became the model for the United State legislation on the same subject.
In Pennsylvania, the first law imposing a duty of filial support is found in the Act of March 9, 1771, which required that children support their indigent parents if the children were of sufficient financial ability. This was obviously designed to relieve state and local authorities from the burden of supporting poor persons who had relatives of financial means who could care for them. The current formulation of the law has been on the books since 1937.
An example of its enforcement is the 1994 Pennsylvania Superior Court case, Savoy v. Savoy which involved an elderly parent whose reasonable care and maintenance expenses exceeded her monthly Social Security income. The Superior Court found that she was indigent and affirmed the lower court’s order directing her son to pay $125 per month directly to her medical care providers.
In July 2005, the Pennsylvania legislature passed an Act which, among other things, moved the filial support provision in the Pennsylvania statutes to a central position in its Domestic Relations Code. The law reads: “all of the following individuals have the responsibility to care for and maintain or financially assist an indigent person: (i) the spouse of the indigent person, (ii) the child of the indigent person, (iii) the parent of the indigent person.”
Historically, these filial responsibility laws have rarely been enforced. Some states that have these statutes on the books have never enforced them at all.
Why so little enforcement? One of the main reasons is that the government has taken over this traditionally familial responsibility. Since the 1960’s federal law (U.S. Code Title 42 §1396a(a)(17)(D)) has barred the states from considering the financial responsibility of any individual (except a spouse) in determining the eligibility of an applicant or recipient of Medicaid or other poverty programs. In other words, even if family members have a legal duty to support a loved one, the federal government places the burden on taxpayers. In the words of Matthew Pakula, “The moral duty receded as society evolved, family life changed, and government created a variety of federal and state programs to meet the needs of the poor.”
As the pending financial crisis of how to pay for the care of the nation’s elderly looms, the issue of family responsibility is coming to the fore. Medicaid is the major funding source for long-term care. If a person consumes his financial assets and his income is low enough, he qualifies for Medicaid coverage. Medicaid paid $60 billion for long term care in 2002. An increasing number of persons are transferring their assets in order to qualify for Medicaid. Their children receive their assets, and the taxpayers pay the bill for their care. Medicaid has become an inheritance protection plan. Enforcement of filial responsibility statutes could bring a stop to this.
Here is an idea that has been put forward: Allow states to consider an adult child able to pay toward care of an indigent parent unless the child files a public notice that they are not responsible for the debts of the parent, foreswears any inheritance rights and consents to the revocation of any trust set up for their benefit by the parent.
But maybe the carrot works better than the stick. Look at what Korea has done: Since 1999, children who live with and support the parents get more inheritance. A person who has supported his or her parent for a considerable time will get 50% more added to his or her share of inheritance. This is called the "filial piety inheritance system."
Honor thy father and mother. The Talmud teaches that `honor’ means the son must supply his father with food and drink, provide him with clothes and footwear, and assist his coming in and going out of the house.