As I reported in Pennsylvania, now North Dakota, nursing homes are utilizing archaic filial support state statues to sue children of long term care patients. That is exactly what these laws allow – filial support for a parents unpaid expenses in a nursing facility or from some medical provider.
Most of these state statues had been forgotten or were unknown to most people but are rising from the dead in the form of hungry medical providers and lawyers looking to feast financially on the children of long term patients.
In Pennsylvania, the case of Health Care and Retirement Corporation of America v. John Pittas caught my eye as the first major case of this type in many, many years.
The mother of John Pittas (hereafter J.P.) had received nursing care in a nursing home and was in arrears to the tune of $92,000 plus. The mother was indigent but had children. The nursing facility instigated suit against J.P., based on a Pennsylvania statute surrounded in cobwebs called “Relatives Liability.” On discovery it was determined that J.P., although not overly wealthy, led a comfortable life financially. As a result, the Court found against J.P. and rendered a judgment in the amount of $92,943.41, not to mention the attorney fees and costs of Court he incurred.
Now a North Dakota statute enacted in 1877 is being resurrected by nursing homes to make additional history in Elder Law to go after children of indigent parents. Because of the previous case cited in Pennsylvania which was upheld on appeal, the spokeswoman for the North Dakota Long-Term Care Association indicated that the old law on the books since 1877 will be utilized, if necessary, to snare children of indigent parents who are unable to pay their long term care expenses.
My law office did a survey and we determined that there are 29 states with these withered laws on the books. Most of them were enacted decades and decades ago, some in the last century. California is one of the 29 states with such laws found in the Family Code and the Penal Code.
Such law provides that an adult child, to the extent of his/her ability, shall (mandatory) support a parent who is in need and unable to work. The county may begin an action for the parent against the child to enforce the duty of support. Additionally, the Court may order the child to pay reasonable attorney fees and court costs.
Now for all you children who feel like you have a target on your back for these imposing laws, the following is what the Courts have an interest in, evidence-wise:
- The earning capacity of the child and the child’s needs;
- The financial obligations of the child;
- The assets of the child;
- The age and health of the child;
- The standard of living of the child;
- Other factors the Court deems just and equitable.
Number 6 alone is a catch-all and allows the Court tremendous discretion. It literally opens the door for the Court to make any inquiry into the financial world of the child. One issue that becomes feasible is the fraudulent conveyance law in California. Basically, it means that once you have notice of a potential claim of liability against yourself or an interest you own, you are precluded from transferring assets to render yourself insolvent. Might the Courts extend this theory to Filial Support laws? Very possible.
So, if you have a parent who could become impoverished from long term care needs, and this becomes more and more of a reality, will you be asked to step into the batter’s box financially? Are you prepared to pick up the load for you parents? Are your siblings willing to share that awesome responsibility?
If its possible to communicate more bad news to the “chillun” as sometimes they are referred to in the South, California has a criminal statute to-wit: … every adult child who, having the ability so to do, fails to provide necessary food, clothing, shelter, or medical attendance for an indigent parent, is guilty of a misdemeanor.
Oh great! Not only will these laws of the dark ages be utilized by the parents’ County assignees and their attorneys to stalk the children, the kids could eventually be dressed in stripes or “jailhouse orange.”
Wait a minute, has California upheld these laws? Maybe the children could win on appeal! More bad news kids. The California Supreme Court upheld the filial support laws of California in a 1973 case where stating: “Since these provisions pass constitutional muster, they are entitled to enforcement… We are mindful that these provisions may involve harsh results in certain instances and we are indeed sympathetic with the plight of such persons. However, the amelioration of any harsh results must rest in the hands of the administering authorities since these provisions are constitutional.