CHILDREN’S LEGAL LIABILITY TO PAY FOR COST OF PARENTS’ NURSING HOME
The idea that children should support their parents originated in England. The Elizabethan Poor Relief Act of 1601 required the “father and grandfather and the mother and grandmother and the children of every poor, blind, lame, and impotent person” to provide support to the extent of their ability. This statute was adopted in the American colonies.
There is no question that children have a moral duty to support their aged parents which originates from the Old Testament book of Exodus, “Honor your father and your mother, that your days may be long upon the land which the Lord your God is giving you.” Exodus 20: 2-17 NKJV. And, “If any one does not provide for his relatives, and especially for his own family, he had disowned the faith and is worse than an unbeliever.” I Timothy 5:8 RSV. Until Social Security and then later Medicaid, families generally took care of their own. Churches and other charities took up the slack.
The legal duty of children to support their aged parents is one created by statute. There is no federal law of filial support. There are state laws. Thirty states require children to pay for their aged parents nursing care when they cannot pay for it themselves. This is called filial support. The thirty states are: Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia and West Virginia. These laws have some common themes. Most states will consider the child’s income, debts and responsibilities, resources available, retirement savings and other needs of the child and his or her immediate family. If the parents are on Medicaid, it would seem to eliminate the need for filial support. In that case the nursing home will be paid by Medicaid.
The federal Medicaid eligibility rules prevent states from considering the financial ability of children to pay for their parents nursing care, when the parents apply for Medicaid eligibility. Children of aged parents who may enter nursing care would be advised to seek competent Elder Law counsel for assistance. It behooves children to help their parents qualify for Medicaid. Medicaid is a means tested public benefit. The parents must be aged, blind or disabled. They must need nursing care for a medical reason. They must have less than a certain amount of income and resources. These gatekeeper tests differ by state. Only a competent Elder Law Attorney can offer the advice and guidance needed.