When I heard an elder law attorney discuss filial law, my reaction was the same as everyone in the audience. This cannot possibly be true.
Could this happen to you? Your mother enters a nursing home and after her discharge there is an unpaid bill of $93,000. The nursing home finds that it cannot collect the money from your indigent parent. The nursing home sues you (the child) for the payment. You argue that although the Medicaid application was not approved in time to satisfy the nursing home, the home should sue Medicaid. You also argue that the home should have collected its bill from your mother’s spouse or from her two other adult children. The court rules in favor of the nursing home finding that the home did not have to wait until the Medicaid claim was resolved and that the home could choose any family member it wanted when seeking payment of its bill. You are stuck with a judgment for $93,000.
How is this possible? Pennsylvania and 29 other states have what is called “filial responsibility law”. This law requires spouses, children and even parents of needy adults to support the indigent. The above scenario is based on an actual PA court case, Health Care & Retirement Corp. of America (HCR) v. Pittas, decided by the Pennsylvania Superior Court on May 7, 2012. You may also want to listen to a discussion by a Dickinson Law professor on this topic which can be found at http://youtube.com/watch?v=cD-vLRK3vmc@feature=youtu.be. We understand that the son will be appealing this case to the PA Supreme Court. Even if the son wins his appeal at the PA Supreme Ct., consider how much he will have paid in legal fees by litigating this at three different courts in PA. No matter how this case eventually is decided, it was a very expensive experience for the son.
What should you be thinking of right now? First, if your parent is low income, seek counsel from an experienced elder law attorney with expertise in Medicaid that practices law in the state your parent resides. Second, if you or your parents have been thinking of long term care insurance but have been deferring that decision for a multitude of reasons, perhaps this case will motivate you. Third, meet with you CPA who can explain the various products in the market place that are alternatives or supplements to long term care insurance and who can financially analyze the situation for you and the other members of your family. Fourth, this is another good example of why asset protection planning is so important for those who have assets to protect.
