Q. My father, Jim, has had dementia for the past five years. As his condition is getting worse, we’re having trouble caring for him in our home, where he currently resides. I heard recently that if he goes into a nursing home and he can’t pay, then the nursing home can come after us (his children) for the money. Is that true? The reason I ask is that I read about cases where nursing homes came after a patient’s children for over $200,000 after a parent was unable to pay.
I also heard about a case in Pennsylvania where the son of a Medicaid applicant had to pay fees for negotiating a penalty period reduction for his father that he (the son) would have been liable for under the state’s filial responsibility doctrine. Is filial responsibility still a law in DC, Maryland, and Virginia? Thanks for your help!
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A. Most parents intend to leave some sort of inheritance to their children. However, there is a law that can actually cause a parent to leave their children with significant debt. The law is commonly referred to as the filial responsibility law, and it requires spouses, children, and parents of indigent persons to care for and financially assist them.
As discussed in many of my articles on the subject, for family members, the consequences of such laws can be severe. A 2012 Pennsylvania court decision ordered an adult son to pay roughly $93,000 to cover his mother’s unpaid nursing home bills. Families who don’t wind up in court are still being threatened with legal action if they don’t pay a loved one’s bills. Court decisions such as the one in Pennsylvania and others have prompted more long-term care facilities to mention filial responsibility laws in letters demanding payment from residents’ families, elder law experts say.
A Recent Filial Responsibility Case Involves Son Refusing to Pay Legal Fees
Recently, in the case you described (Coates, et al., v. Salmon (Pa. C.P., Mont. Cty., No. 2018-16878, June 23, 2021)), the Pennsylvania trial court ruled that the son of a Medicaid applicant, William Salmon Jr., must pay an elder law firm’s requested fee for successfully negotiating a penalty period reduction because he would otherwise be responsible for paying the nursing home under the state’s filial responsibility doctrine.
William Salmon, Jr., a lawyer, engaged the services of elder law attorney Andrew A. Coates and his law firm to pursue an appeal of an $86,786 Medicaid penalty that the Pennsylvania Department of Human Services’ County Assistance Office had assessed against Mr. Salmon’s father when he applied for Medicaid nursing home benefits. During their initial meeting, Mr. Coates explained to Mr. Salmon that if the penalty were upheld, Mr. Salmon could be held personally liable to the nursing home for the shortfall in payment pursuant to Pennsylvania’s legal doctrine of filial responsibility. As his father’s agent under a power of attorney, Mr. Salmon authorized Mr. Coates to proceed.
Mr. Coates ultimately reached a settlement with the County Assistance Office to reduce the penalty from $86,786 to $18,380, a savings of $68,406. The legal fees were $6,465.89, reflecting an hourly rate of $325 and applying a 15% “professional courtesy” discount, which Mr. Salmon (son) refused to pay.
Was Mr. Salmon Liable for the Legal Fees or Was His Father?
Mr. Salmon contended that the claim should be asserted only against his father and not against him personally. Mr. Coates and his firm countered that under Pennsylvania’s doctrine of filial responsibility, Mr. Salmon would have been personally liable for payment of his father’s nursing home fees, making Mr. Salmon the beneficiary of Mr. Coates’ legal services and liable for payment. The court ruled in favor of Mr. Coates and his firm for $7,606.64, the amount Mr. Salmon would have owed without the professional courtesy discount. Mr. Salmon has appealed.
For the full text of this opinion, click here.
Filial Responsibility in Virginia, DC, and Maryland
What happens when a person who is in need of long-term care is unable to pay for it or if a person has a lofty penalty to pay, similar to Mr. Salmon? Many states have laws that can make adult children financially responsible for their parents’ necessities of life when the parents do not have the means to pay for such necessities on their own. The extent of this responsibility can vary by state. Currently, Virginia has filial responsibility laws; DC and Maryland do not. Here’s our list of all the states that have these laws.
Plan Properly to Avoid Filial Responsibility Issues
As you can see from the case described above and from all of our prior articles about filial responsibility, these laws can be used by nursing homes, other long-term care facilities, and others as a means to seek reimbursement for unpaid bills. Without proper planning and legal advice from an experienced elder law attorney, adult children may be on the hook for substantial amounts of money for the care required by their aging parents. The only way you can make sure you do not fall victim to a filial support action is by planning ahead.
Be Prepared: Medicare Doesn’t Pay for Long-Term Care
Adult children have to be proactive regarding how their parents are financing their long-term care. Remember, Medicare will not pay for your loved one’s long-term care needs. While Medicare is designed to help those over the age of 65 (and some younger people who are totally in permanently disabled) keep on top of their healthcare needs, long-term care is not one of them according to the federal government. The Medicare system, and in fact our entire American health insurance system, does not pay for long-term care, as it does not consider it to be medical care. And while Medicare Supplemental plans are often touted to cover things that Medicare leaves behind, long-term care is still not one of them.
Medicaid for Long-Term Care
Some families of modest means may assume Medicaid will cover a parent’s care once the parent has depleted savings and other resources. But it’s a huge mistake to assume that Medicaid will be easy to obtain.
Medicaid laws are the most complex laws in existence, with 8 separate bodies of law (4 at the Federal level and 4 at the state level) dealing with Medicaid and Medicaid eligibility. To do proper Medicaid asset protection planning, families need the help of an experienced elder law attorney, preferably a Certified Elder Law Attorney.
Whether your parents are years away from needing nursing home care, are already in a nursing facility, or somewhere in between, the time to plan is now, not when your parents are about to run out of money. Call us to make an appointment for a consultation:
About Evan H Farr, CELA, CAP
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