Estate PlanninG

Filial Laws: So Who is Legally Responsible for Elder Parents?

Filial, meaning due from the daughter or son, is a funny word to say. However, filial laws have, in recent years, garnered increasing attention for their serious implications. If you have heard of filial laws, it was most likely in relation to a now infamous 2012 Pennsylvania case, Health Care & Retirement Corporation of America v. Pitta. In the case, an estranged son was sued by his mother’s nursing care facility after she moved to Greece, and even though she was applying for Medicaid to cover the expenses, the court found in the facility’s favor and he was stuck with a $93,000 bill.

Filial laws require an adult child to financially support their parents if they can’t care for themselves. Essentially, they codify the conventional view that one should care for their elders while concurrently ensuring there will be a party able to pay. If a judge finds a child to be liable for the cost of their parents’ care, they can put a lien on the child’s property, garnish wages, and even jail them.

If you are concerned that a scenario similar to the one in Pennsylvania could occur in California, you can rest easy. California’s filial laws make an exemption for a parent that is applying for or receiving Medi-Cal, SSI, or any other governmental assistance. In such cases, a claim cannot be made against a child to recover the cost of care. Furthermore, California has been relatively lax in enforcing Family Code 4400, which contains the foundation for California’s filial laws.

That’s not to say however, that filial laws will never see the light of day in our state. The future of Medi-Cal is uncertain as Republicans in Congress repeatedly attempt to repeal the ACA while at the same time President Trump seeks to undermine the law. A rollback of the ACA would be devastating for the state program as California was one of the many states that chose to expand their coverage with federal funds from the law. Should the ACA falter or be repealed outright, elderly care facilities may become desperate to ensure they receive payment for their care, perhaps even taking a look at filial laws. In today’s unpredictable political climate, a senior who is indigent, where their cost of care exceeds their SSI benefit, and who fails to qualify for Medi-Cal may not be such a rarity in the near future.

Of course, like most things in life, situations like these can be avoided by being proactive. Life Insurance or Long-Term Care Insurance are easy tools that can provide the necessary funds to pay for an elder’s care before or after their passing. Furthermore, Estate Planning and Medi-Cal Planning on the part of the elders can prevent any unexpected claims against the children while ensuring the seniors’ estate is structured as per their wishes.

If you would like to know more about elder law issues please contact Ivette M. Santaella, Elder Law Attorney of the law firm of Santaella Legal Group, APC serving San Ramon, Dublin, Danville, Pleasanton and the entire bay area.