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Saturday, December 9, 2017

The Potential Dangers of Filial Responsibility Laws

Q: Are adult children responsible for the costs of their parents’ nursing home care?

California elder law attorneys are skilled in helping adults of all ages-- especially seniors and their loved ones-- plan for a future that maximizes and protects the financial resources they have, plans for the potential of deteriorating health, and hopefully avoids family disputes.

Estate planning is more than just a last will and/or a trust. Other documents such as powers of attorney and living wills enable people to express their end-of-life healthcare decisions and choose agents they trust to handle medical and/or financial transactions and decisions on their behalf in the event they become incapacitated and unable to do so themselves.

No one likes to think about their death or disability, but getting your legal affairs in order and knowing you've provided a secure future for your loved ones brings great peace of mind to most people.

While death or disability can strike any of us at any time, most people delay their estate planning on the assumption they will live a long life, finally making the appointment when facing a milestone or crisis in life. Marriages, divorces, births, deaths, and business ventures are common reasons that people come in for their first estate plan or to revise an existing one.

An important reason all people should see an estate planning attorney, sooner than later if possible, is for long term care planning and asset protection. A skilled elder law attorney can help protect your assets while also qualifying you for public benefits such as Social Security, Medicaid and veteran’s benefits, if applicable. They can even help you select the right long-term care facility.

With a comprehensive estate plan, many people can protect assets for the benefit of their families yet still qualify for Medicaid. Without this advanced planning (or some last-minute crisis planning, if available) those who to go into a nursing home could lose their entire life savings and leave their families in dire financial condition.

It is also important to see an estate planning attorney before signing Medicaid applications and other documents related to placing a parent in a nursing home to avoid unwittingly accepting personal responsibility for the nursing home bill.

Not only can you unknowingly sign documents that make you liable for the bill, but approximately 30 states have filial responsibility laws that can hold adult children liable to provide their indigent parents with “food, clothing, housing, and medical attention”. California is one of them.

Most of these laws have been on the books for ages, stemming back to the times when the cultural, social, and moral responsibility to ‘honor thy mother and father” was standard practice.  But because of that, the laws never needed to be enforced as the burden was willingly undertaken as generally large families of siblings managed the care of their aging parents at home.

Over time, however that practice became impractical or impossible for reasons that include:

  • extended families no longer lived together
  • parents had fewer children to spread the burden over
  • adult children often moved far away from their parents
  • parents lived longer as life expectancies grew
  • couples had children later, “sandwiching” them between elder care of their parents and child care of their children
  • the college costs of educating children have increased the burden on parents.

With the Medicaid system being overburdened and states like Pennsylvania adding first-time filial responsibility laws on its books, there is fear that states will actually begin enforcing such laws. Shifting the responsibility for payment of a parent’s nursing home care to adult children (except where exempt) would ease the burden on the taxpayers and Medicaid system.

If you or a loved one is in need of estate planning, Medicaid planning, or have questions about whether filial responsibility laws may impact you, the estate planning experts at the Law Offices of Berge & Berge can help you. Contact us today to schedule a consultation.

We've been proudly serving the Bay Area of California for over 23 years and concentrate our practice exclusively in the area of trusts and estate planning.

 



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