[Tip]Filial responsibility states: when elder care attacks via /r/raisedbynarcissists
[Tip]Filial responsibility states: when elder care attacks
This came up in another thread, and it might be useful to have a brief overview. IANAL. I am not a lawyer. I am NOT a lawyer. If you need legal details regarding your own state, please consult an attorney in your area. I assembled this mostly because my grandmother, who lived in an FR state at the time, designated me as her responsible party if anything happened to her. I happen to live in a non-FR state, and when my grandmother became unable to care for herself, I moved her to my state (not just because of FR, but it certainly was a factor). This is my research and the major questions I had. This only applies to the United States.
Currently, the states with Filial Responsibility laws on the books are:
Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Montana{2015 case overturned the state's law; the law is still on the books, but precedent has declared it invalid}, Nevada, New Hampshire {Repealed 2015}, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia.
What Is Filial Responsibilty?
Filial responsibility is the same principle as child support, except it assigns financial responsibility to the adult children for parents who are unable to pay for professional care on their own, or whose estates cannot fulfill their debts. It's an outgrowth of the Elizabethan English Poor Laws which the US inherited. The original law required parents, grandparents and children to support their blind, infirm or poor parent/child to the extent they were able. As it is applied now, in the United States, if an elder becomes impoverished, the state can charge the costs of that person's care to their child(ren), and private entities who provide care can sue the child(ren) for the cost of support. This most often happens in the case of Medicaid and nursing homes. Most 60+ adults do not have the resources to pay for 2-3 years of nursing home care, so this will become a greater issue in the next few years.
How is this legal?
Because legislatures have rarely removed these old laws, and because it pushes the costs of caring for the elderly poor onto private citizens without regard to the adult relationships of those citizens. (Idaho repealed theirs in 2012.) Write your state legislators, but beware, the elderly vote is prized, and pissing them off means getting these laws off the books is not going to be easy.
Well, crap. How can I protect myself from my spendthrift Narc?
If you live in a Filial Responsibility state, your best bet is to move to a non FR state. Do not live in the same state as your N(s). The Federal government does NOT have a Filial Responsibility law, which means that the state would have to bring a federal charge or federal civil suit against a citizen of another state, and since there is no federal FR law, there is no jurisdiction. There is federal case law that protects citizens living in non FR states from FR state cases. In theory, this should apply to citizens living in different FR states than their parents, but there's no case law on this yet. States have not yet created reciprocity agreements on FR like there are for child support, but it would be test case time. (Though there are rumblings of a Federal FR. With the largest American generation hitting retirement age with the least amount of savings ever, more states are getting hit with a Boomer squeeze. Right now, the fact that Congress can't agree on what to have for lunch is protecting us, but Congress will like a Federal FR law because it will lighten the Medicare/Medicaid load. Watch this space.)
What if my N follows me?
Move to one of the 20 21 states without this law.
I can't move. Am I screwed?
Not necessarily, and this is where you're going to need a lawyer. In theory, you should be able to disclaim any and all relationship and responsibility for a parent and their debts by having it published in the paper of record for several weeks. In doing so, you would also have to permanently forswear any inheritance rights, and revoke any trusts that have been set up for your benefit. Basically, this is the financial equivalent of divorce. And it may not work. This part is untested in the courts. While being a test case can be fun, interesting and educational, it's also harrowing, terrifying and potentially financially ruinous, and you'll need a close relationship with a family law attorney who also has an interest in (possibly) pro bono work at the state constitutional level. These attorneys tend to be rare. If that's not for you, move to a non-FR state and keep a close eye on your state legislature and the Federal government.
I don't have any money even if the state wanted to try to charge me for my N's care. Does this apply to me?
Yes. There are 12 states which allow CRIMINAL cases for FR. That could mean jail time. I have identified six of those states, and will update as I find the rest: So far, Complete list: Criminal only states: Kentucky, Massachusetts, North Carolina, Ohio, Oregon, Rhode Island, Vermont, Virginia. Criminal and Civil liability states: California, Connecticut, Indiana, Montana. CA, MD and MT are non-enforcement due to judicial ruling/precedent states.
The good news is that, unlike child support, FR usually has a limit on what a parent can receive, or what a civil plaintiff can recoup from an adult child. That limit, in PA, is 6 times the adult child's annual disposable income, after the support of themselves and their spouse and children, and preparing for their own future. PA can't go after a retirement fund or the equity in a house, and they can't take your kid's piano lessons or sports fees away. In all states with FR, the adult child cannot become impoverished themselves to support their parent. But it's still a pain in the ass, requires a whole financial life MRI, and it's a court case and a judgement, which hurts credit scores and quality of life.
When my N went into a Nursing Home, the Nursing Home required me to sign a contract of responsibility. So even if I don't live in a FR state, am I still on the hook?
Actually, that contract is probably not enforceable. In 1987, Congress passed the Nursing Home Reform Law, which mandates that any facility that accepts Medicaid payments cannot force a third party to accept responsibility for a patient. But the Nursing homes hate that, so they obfuscate, and sometimes outright lie about requiring a third party responsibility as a condition of admission. They're relying on the fact that most people have never had to put someone in a nursing home, and most people aren't well versed on the consumer side of medical financial law. If you're in that situation now, you need a lawyer. If you expect to ever be the one putting your N in a facility, know your rights and talk to an Elder Law attorney in your state about how to protect yourself, and do not sign that statement, no matter how the nursing home whines.
My Ns gave me their house/set up a trust so that I would be sure to inherit. Does this mean I'm on the hook?
Probably yes. Medicaid has look back on assets and property and a 5 year penalty period if a person disposes of their assets through a gift. People can give their stuff away at their pleasure, but if they need state aid in the form of Medicaid within five years, it's assumed that the person gave their stuff away to protect the asset and keep it in the family. That means the person who gave the stuff away cannot receive Medicaid funds for a period of time equal to 1 day for every $156 of value, or 5 years. States with FR can go after the beneficiary of that gift for the cost. If this looks like it will be an issue for you, get an Elder Law lawyer now, and be prepared to give the gift back, or take out a mortgage to return the value of the house at the time of the gift. N Gifts always come with strings.
Okay, I'm scared. How often does this happen?
It's a good news, bad news situation. The good news is that this is fairly rare, over all. The states which have this law on the books use it fairly rarely, with the exceptions of Pennsylvania and South Dakota, who use it a lot. In California, the state is prevented from suing the child on behalf of the parent if the parent qualifies for state aid, and doesn't get involved if the parent doesn't qualify for aid, so the California law is effectively dead and in legal limbo. In Nevada, the law is only enforceable if the child promised in writing to provide for the parent(s). In Connecticut, the law only applies to parents who become indigent who are also under the age of 65, and any responsibility would end at age 65. In Arkansas, the children's FR comes after the state's responsibility, so it doesn't get often used.
The bad news is that Pennsylvania and South Dakota like to use this law and use it quite often to get payment for medical and nursing home services. The more these states use this, the more likely it becomes that other states will notice and follow suit. The Medicaid look back practice that I mentioned above is universal, so be aware that as with most things, N generosity always comes with strings and hidden traps.
But I haven't spoken to my N in X years. I don't even know where they are —
Yeah, the states who use this law don't really care. Most of the states do have an out clause for documented abuse, neglect or abandonment before the child reached majority, but they don't care about adult on adult abuse or permanent estrangement. In those cases, you'd really need a lawyer, and preferably a documented history of restraining orders or assault charges. And again, this is back to test case. These cases are fairly rare outside of PA and ND, so there's not a lot of case law, and what case law there is tends to be several decades old, when child abuse was barely considered a crime and the standards for abuse were almost impossibly high. It would be messy and difficult.
Citation needed
Okay, Here ya go:
Edit 1: Formatting Edit 2: Finished the criminal/civil state list.
Submitted September 16, 2016 at 10:00PM by Crossswampfast
Click here for the original Reddit article
