Mom Abused Me and is Not Indigent – Why Should I Have to Pay for Her Long-Term Care?

Filial Responsibility (by Michal Dziekan) 
Image Source: Wall Street Journal

Dolly Eori, 90, of Westmoreland County, Pennsylvania, requires 24-hour care. She lives full-time with her son Joseph and suffers from cancer and Alzheimer’s. She is a widow and the mother of three adult children: Paulette Rush, Joshua Ryan, and Joseph Eori (who has Power of Attorney over her).

To pay for his mother’s care, every month Joseph used his mother’s Social Security check plus additional funds out of his own pocket.  When his mother’s care expenses became too much for him to shoulder, he filed a complaint on behalf of his mother, seeking filial support from her other two children, Joshua and Paulette.

The trial court ordered that Paulette and Joshua each pay $400 a month, and Paulette agreed to do so. Joshua, on the other hand, objected, and appealed the Judge’s ruling. He argued to the appeals court, among other things, that his mother was not indigent because she did not have outstanding medical bills and that he was abandoned as a child.

Pennsylvania’s filial responsibility law (much like the Virginia filial responsibility law) negates the support obligation if the parent abandoned a child for a 10-year period. When Joshua appealed the court’s decision, he asked the appeals court to consider three things:

  1. whether Dolly Eori was indigent;
  1. whether Joshua Ryan was financially capable of paying support to Dolly Eori, and
  1. whether Joshua Ryan was abandoned by Dolly Eori and therefore had a valid defense against the payment of support to his mother.

Was Dolly Eori Indigent?

There is a common law definition of indigent, and the courts have used that definition in case law relating to filial support. It is as follows:

the indigent person need not be helpless and in extreme want, so completely destitute of property, as to require assistance from the public. Indigent persons are those who do not have sufficient means to pay for their own care and maintenance. HRC v. Pittas, 46 A.3d 719, 724 (Pa.Super. 2012).

The definition is meant to include “those persons who have some limited means, but whose means are not sufficient to adequately provide for their maintenance and support.”

Joshua argued that Dolly Eori was not indigent because there was no evidence of unpaid or outstanding medical bills or other liabilities owed by his mother. Although there are filial support cases that involve such unpaid medical bills, such as the Pittas case, the court found that clear language of the statute did not impose an obligation of establishing unpaid medical bills or liabilities to justify a claim for filial support.

Is Joshua Ryan financially capable of paying support to Dolly Eori?

Joshua Ryan is a registered master plumber and has worked for his own business, One Call Plumbing, for twelve years. He has five employees that work for him, and his wife handles the accounting. His 2012 tax return showed gross wages of $77,199.

However, Joshua and his wife both claimed that he has medical issues with his kidneys that impact his ability to work on a regular basis, and he estimated that his income was shorted by thirty percent in 2013 because of his health. He also has two step-children (and pays for college tuition for one of them), a $1200 mortgage, and payments on two luxury cars. He also provides bonuses to his employees.

Based on the evidence presented, the appeals court found that because Joshua Ryan was capable of paying money for luxury cars, supporting two children that are not his own, and paying bonuses to his employees, he was also  financially capable of providing support for his mother.

Was Joshua Ryan Abandoned by Dolly Eori?

Joshua Ryan testified in court that he “did not have the greatest family growing up” and that he “wanted to get away.” He testified that his grandmother cared for him more than his mother; however, they were never far apart because his grandmother either lived with his mother or beside her. Although he testified that Dolly Eori was abusive, left, and caused them to move many times, and was either gone or fighting, he never established that she left for a ten-year period.

Although it may not have been an ideal childhood, there was no evidence of abandonment to release Joshua Ryan from his obligation to support his mother.

Joshua Ryan is required to provide support to his mother

The Pennsylvania Superior Court held that Joshua Ryan is required to provide support to his mother. The appeals court agreed with the trial court’s decision that the filial responsibility law doesn’t require a showing of unpaid bills or liabilities to justify a claim, that Joshua Ryan is able to make the $400/month payments, and that there was no evidence that his mother abandoned him.

Filial Responsibility Laws Are Being Enforced

Currently 30 states, including Virginia and Maryland, have “filial responsibility” laws that can be used by parents, siblings, hospitals, nursing homes, and other care facilities to seek reimbursement for unpaid medical and long-term care bills from the children if the parents cannot pay the bills themselves. According to these laws, adult children are legally responsible to pay for necessities such as food, clothing, shelter, and medical attention for indigent parents. In the past, I have written about other instances of filial responsibility. Please click here and be sure to read these posts for various instances where filial responsibility laws were enforced.

Virginia and Maryland Filial Responsibility Laws

Virginia’s filial responsibility law (Virginia Code Section 20-88) states as follows:

It shall be the joint and several duty of all persons eighteen years of age or over, of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father, he or she being then and there in necessitous circumstances.

The term “support and maintenance” is very comprehensive, and includes food, shelter, care, and clothing. Similar to the Pennsylvania abandonment provision, Virginia’s statute says:

This section shall not apply if there is substantial evidence of desertion, neglect, abuse or willful failure to support any such child by the father or mother, as the case may be, prior to the child’s emancipation.

Maryland’s filial responsibility law (MD Code Family Law Sections 13-103) provides in relevant part as follows:

(b) Destitute parent. — An individual may make a complaint that states that:
   (1) the individual is a destitute parent;
   (2) an adult child of the destitute parent has or is able to earn means sufficient to provide the destitute parent with necessary food, shelter, care, and clothing; and
   (3) the adult child has neglected or refused to provide the destitute parent with necessary food, shelter, care, and clothing.

A “destitute parent” is defined in MD Code Family Law Section 13-101 as a parent who has no means of subsistence and cannot be self-supporting due to old age or mental or physical infirmity.

Filial Responsibility Doesn’t Apply if Parent if Receiving Medicaid 

Proper Medicaid asset protection planning is an absolute necessity if you want to avoid the possible application of the Virginia or Maryland filial responsibility laws, because Virginia’s law (Virginia Code Section 20-88) states that the law “shall not apply if . . . a parent is otherwise eligible for and is receiving public assistance or services under a federal or state program,”  and Maryland’s law (MD Code Family Law Sections 13-107) says “The individual shall pay the support until the destitute parent . . . has other means of adequate support or dies.”  “Other means of adequate support” clearly would apply to Medicaid benefits paying for the nursing home care of a parent.

In other words, the filial responsibility laws of both Virginia and Maryland do not apply if the parent is in a nursing home receiving Medicaid!  This exception is crucial to understand and means that it is essential that adult children help their parents plan to receive Medicaid if these adult children don’t want to wind up being financially responsible for their parent’s care, especially if their parent is in a nursing home.

Medicaid Complexity

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, such as myself. The best time to do Medicaid Asset Protection planning is now.  Whether your parents are years away from needing nursing home care or 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.

If you or a loved one is nearing the need for long-term care or already receiving long-term care or if you have not done Long-Term Care Planning, Estate Planning or Incapacity Planning (or had your Planning documents reviewed in the past several years), please call us to make an appointment for an initial no-cost consultation:

Fairfax Elder Law Attorney: 703-691-1888    
Rockville Elder Law Attorney: 301-519-8041  
Fredericksburg Elder Law Attorney: 540-479-1435    
DC Elder Law Attorney: 202-587-2797

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