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Pay Your Mom’s Nursing Home Bill or Go to Jail – Massachusetts

By Harry S. Margolis

Parents are legally responsible for taking care of their children until they reach age 18.  Spouses are legally responsible for making certain that that their husbands and wives have the basic necessities of life — food, shelter, and clothing. No one seems to question whether these rules makes sense.

But should children be legally responsible for the care and basic necessities of their parents? Does it make a difference if the parents are ill or suffer from dementia? Does it matter what kind of parents they were when the children were young?Nursing-Home-Elder-Law-Attorney-Massachusetts-Familial-Support

According to Professor Katherine C. Pearson of the Dickinson School of Law at Penn State, 29 states plus Puerto Rico have so-called “filial responsibility” laws requiring children to provide support and care to their indigent parents. These laws are survivals from earlier times when almost every state had similar laws. However, the cases brought against children under these statutes have been quite rare. (Click here to read Professor Pearson’s article.)

An exception is the recent Pittas case in Pennsylvania where John Pittas was held legally liable for his mother’s $93,000 nursing home bill. (Click here to read more about this case.)

More common are suits against children for bad acts or mistakes rather than simply because they are children of parents who need care. Children have been sued by nursing homes for failure to follow through with Medicaid (MassHealth in Massachusetts) applications, under guaranties they may have signed to pay for their parents, for running off with funds transferred to them by their parents, and for funds they transferred from their parents on their own initiative.

Criminal Responsibility

Massachusetts is one of four states, according to Professor Pearson, which instead of making children legally liable for their parents’ cost of care, make it a crime not to care for indigent parents. Pursuant to Mass. Gen. Law Ch. 273, Sec. 20, any person over age 18 who has sufficient means and

unreasonably neglects or refuses to provide for the support and maintenance of his parent . . . when such parent through misfortune and without fault of his own is destitute of means of sustenance and unable by reason of old age, infirmity or illness to support himself, may be punished with a fine of up to $200 or up to a year in prison, or both.

The statute also provides that a child’s failure to provide support will not be considered unreasonable if the parent had not provided reasonable support to the child when she was growing up or if the child makes a reasonable contribution but her siblings do not.

We are aware of no prosecutions under this statute, perhaps because the meaning of what’s “reasonable” both in supporting a parent and in the parent’s earlier support of the child is so open to interpretation. Additionally, when some children live out of state, it may seem unfair to subject to prosecution only the child or children in Massachusetts. 

Also, how do we determine whether the parent had any fault in contributing to her poverty? Ironically, under a literal reading of the statute, if the parent impoverished herself by being over-generous to her child, this may exempt the child from prosecution, since that would constitute fault on the parent’s part. 

What are Familial Obligations of Support?

Despite the fact that this and most filial responsibility statutes are never enforced, they raise serious questions about familial obligations. What does a child owe a parent? What does a parent owe a child after age 18? What do siblings owe one another, especially when some are much better off financially than others?

Whatever our opinion as to the appropriate answers to these questions, should these matters be legislated? In virtually all cases, they are not turned into laws and families and individuals do what feels right to them based on their values and experiences.

My guess is that most Americans would agree that this is the best approach. But would their opinions change if they, as taxpayers, had to pay for the parent’s care while wealthy siblings enjoy ski vacations in Zermatt?

The Medicaid program provides that it may recover its costs from the estates of beneficiaries — usually from the value of their homes, since they must spend down their other assets to become eligible for Medicaid in the first place. What about similar claims against children?  Of course, we would probably come up with the same objections as those that prevent the enforcement of the criminal statute — questions about the support the parent gave the child, and the fairness of enforcing the claim against the in-state children and not those out of state, as well as other considerations.

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