In the past few weeks, I mentioned to a handful of people that I was writing an article about laws that say adult children can be held responsible for their parents’ medical bills and long-term care, even if they don’t agree to do so. As a conversation starter at a party, this one drummed up some heated reactions. “That’s not fair!” “Those laws don’t really exist, do they?” “People can’t be responsible for debts they didn’t create…right? Not without signing a contract.” “That can’t happen.”
While it is unusual, it can happen. And, once in a while, it does.
North Dakota and 28 other states have “filial responsibility” laws. They sound simple enough, but they can have a life-changing impact in some particular situations. North Dakota’s law reads:
“It is the duty of the father, the mother, and every child of any person who is unable to support oneself, to maintain that person to the extent of the ability of each. This liability may be enforced by any person furnishing necessaries to the person. The promise of an adult child to pay for necessaries furnished to the child’s parent is binding.”
Filial responsibility laws apply in several circumstances. For example, they have been used in North Dakota to force a father to support his twin sons after age 18. Both sons were intellectually disabled and unable to support themselves. By most standards, a father being required to provide for his offspring seems reasonable. This application of the filial responsibility law doesn’t seem as “wrong” as how the law is used in other circumstances.
These laws garner the most attention in lawsuits between medical facilities and adult children—when hospitals or nursing homes seek payment from an unsuspecting child for care previously provided to the parent.
So, when does this happen?
Last year, a Pennsylvania case, Health Care & Retirement Corporation of America v. Pittas, made the headlines in a big way. A court said a son, John Pittas, was liable for his mother’s $93,000 nursing home bill. Immediately, one might assume that the nursing home had no other option and took this approach as a last resort.
Actually, a Medicaid application for payment was pending at the time of the lawsuit. And, Pittas’s mother was married and had two other adult children. These facts didn’t affect the decision. The Court held that the nursing home was not required to consider other sources of payment, such as Medicaid, before taking legal action against a family member…and the nursing home had every right to pick which family member to sue.
Just a couple of months ago, North Dakota’s filial responsibility statute emerged from hibernation in Four Seasons Healthcare Center, Inc. v. Linderkamp. Like Pittas, a son, Elden Linderkamp, was ordered to pay his parents’ $100,000 nursing home bill.
Ultimately, the North Dakota Supreme Court reversed the trial court’s decision and ordered it to determine possible liability of Elden’s siblings for that same bill. The case is still pending. Perhaps Elden won’t shoulder the nursing home burden alone, but he certainly isn’t off the hook.
Situations like Pittas and Linderkamp are not at all common. Before the Court deemed Linderkamp liable for his parents’ gigantic nursing home bills, the Court found that he had participated in a fraudulent transfer of his parents’ land (which effectively left them too broke to pay their long-term care bills). Because Linderkamp took ownership of that land, it left him plenty of money to pay his parents’ nursing home expenses. It only seemed right.
Although the Pittas Court did not find any such “wrongdoing” to justify its decision, the Court similarly focused on Pittas’s ability to pay his mother’s outstanding bills. The Court discovered he recently finished paying a substantial personal debt shortly before the lawsuit began, thus freeing funds to help his mother. The payor’s ability was the deciding factor in both instances.
Why so rare?
With the success of these two lawsuits, it may seem surprising that hospitals and nursing homes don’t use filial responsibility statutes more often. Perhaps the most concerning aspect of these laws is that their enforcement seems so arbitrary. How is it that most people escape any liability, while others become plagued with enormous bills, without consent or warning? The answer, in part, lies in the specific circumstances of each case. The laws are clear that not just anyone can be forced to incur these expenses.
Before a third party is able to obtain payment from an adult child for his or her parent’s bills, five strict requirements must be proven: (1) kinship of the parties, (2) the reasonable value of the services rendered, (3) the immediate necessity of the care rendered, (4) the indigence of the person receiving care, and (5) the financial ability of the person sued to pay the expenses.
The first three requirements are often simple enough. However, the remaining two are not always so easy to determine. It takes more than a third party wanting payment. It requires proof that the patient can’t pay his debt and that his family member can.
Filial responsibility laws do not impose primary responsibility for a parent’s medical bills on their children. Basic contract principles still apply in these situations, just as anywhere else: People who directly sign agreements to receive services or obtain benefits are primarily on the hook for the costs of those services. Filial responsibility statutes impose a secondary liability on the family members because of the kinship connection. Family members must help if it’s necessary and they can.
No one likes debt. But, most of the time, we create the situation ourselves. We know what we owe, and we know why we owe it. It’s scary to imagine life-changing debt could land in your lap unexpectedly because of something you really had nothing to do with.
The “ability to pay” requirement should give comfort to people who might feel panic or a sense of impending doom about the possibility of a filial responsibility lawsuit knocking on the door. Under these statutes, a person cannot be held responsible for bills he or she simply cannot afford to pay.
After all, most of us would gladly send a dollar or two to Mom and Dad if we had a money tree in the backyard. These laws aren’t intended to make the poor poorer. They are intended to require each of us to look out for family. At the end of the day, it’s the right thing to do…but not at the expense of the child’s well-being or survival.
Long-term care costs are worrisome for everyone at every stage of life. The expenses can be unpredictable, and their impact financially devastating. These days, federal legislation makes it more difficult for the elderly to qualify for Medicaid coverage. As a result, filial responsibility laws emerge as an attractive option for medical and long-term care facilities.
How do I protect myself?
There are several things a person can do to protect against a Pittas or Linderkamp situation. Fargo attorney Mike Gjesdahl of Gjesdahl Law, P.C. gives this advice:
- Find out whether your state has filial responsibility laws. Research and understand the requirements. If it becomes an issue in your life, you want to be informed.
- Discuss savings and long-term care insurance plans early to avoid empty accounts in old age. It is cheaper and easier to get insurance when you’re young. Tackle this issue early.
- Prepare Medicaid or Veterans Administration Aid applications early and secure coverage before it’s too late. Different states have different requirements, so understand what you need to do where you live.
- Talk about money! Be aware of your parents’ financial situation and discuss where they plan to live when they become elderly. Help them make decisions that will benefit everyone down the road. The conversation may be awkward, but it’s always better to know the facts now and avoid unpleasant surprises later.
- Talk to an attorney and obtain advice specific to you and your family’s circumstances. Plan ahead.
Filial responsibility doesn’t have to feel scary or inevitable. It’s not like hospital and nursing home personnel are wandering the streets to strike at random and take away all your hard-earned cash. But it might pay to be aware of these laws before that even becomes a possibility. Filial responsibility is alive and well in North Dakota and elsewhere across the country.
Your parents likely helped you plenty along the way. Repay the favor and help them prepare for their financial future, too. It could save everyone a bundle in the long run.
Shannon Parvey is a family law attorney at Gjesdahl Law, P.C. She and her husband, Eric, live in Fargo and are expecting their first child in March 2014.
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