Elderly Couple May Be on the Hook for Adult Son’s Medical Bills; Some Virginia Thoughts.

An elderly Pennsylvania husband and wife are being asked to pay their deceased adult son’s medical bills under a law making family members responsible for a loved one’s unpaid bills.  The case is a reminder that such “filial responsibility” laws may go both ways – requiring parents to pay the debts of adult children as well as the children to pay for their parents’.

Peg and Bob Mohn’s son died at age 47- leaving unpaid medical bills. Now according to an article in The Morning Call– debt collectors are trying to dun the Mohns using an archaic state law that wasn’t enforced until recently. Pennsylvania is one of 28 states that currently have filial responsibility laws. These laws usually make adult children responsible for their parents’ care if their parents can’t afford to take care of themselves- but some of the laws also make parents responsible for their childrens’ care.

Filial responsibility laws- which originated before the advent of the modern public support system- have been rarely enforced- but lately states and health care providers have started taking a second look at them to recover medical expenses- including Medicaid payments. In May 2012- a Pennsylvania court found an adult son liable for his mother’s $93-000 nursing home bill under the state’s filial responsibility law.

According to Pennsylvania ElderLawAnswers member attorney Stanley Vasiliadis who is quoted in the Morning Call article- these laws provide additional incentive for people to plan their estates. Without proper planning- children could be on the hook for their parents’ nursing home bills- and vice versa.

States with filial responsibility laws include: Alaska- Arkansas- California- Connecticut- Delaware- Georgia- Indiana- Iowa- Kentucky- Louisiana- Maryland- Massachusetts- Mississippi- Montana- Nevada- New Jersey- North Carolina- North Dakota- Ohio- Oregon- Pennsylvania- Rhode Island- South Dakota- Tennessee- Utah- Vermont- Virginia- and West Virginia. Two states- Idaho and New Hampshire- recently repealed their filial responsibility laws- but elder law attorneys in Pennsylvania haven’t made much headway in convincing their legislators to repeal.

These laws differ from state to state.  If you live in a state that still has such a law on the books- check with your attorney to find out how you can protect yourself from a child or parent’s debts.

In Virginia- there are two statutes of interest in connection with support of certain parents by children- and certain adult children by parents.

The statute for “filial” responsibility – literally– from the relationship of a son or daughter of parents by a child – is Virginia Code § 20-88. There is very little case law directly applying and interpreting the interesting statue- which is applicable only when the parent is in “necessitous” circumstances and there is ability on the part of the child to support the parent without causing hardship on the part of the child.

The statute includes this interestingly worded provision:

To the extent that the financial responsibility of children for any part of the costs incurred in providing medical assistance to their parents pursuant to the plan provided for in § 32.1-325 is not restricted by that plan and to the extent that the financial responsibility of children for any part of the costs incurred in providing to their parents services rendered- administered or funded by the Department of Behavioral Health and Developmental Services is not restricted by federal law- the provisions of this section shall apply.

Since Medicaid- if it applies- is the payor of last resort as a matter of federal law- if a parent is eligible for these benefits- then the “plan” (actually- the Medicaid plan as set forth in Virginia regulations) would restrict imposing additional liability upon the adult child. A different view was taken 40 years ago (with a differently worded statute) by the Virginia Attorney General- Support of Parents by Adult- 74-75 Va. AG 596 (1974).

The second statute- applicable to parents’ ongoing responsibility for adult disabled children- is Virginia Code § 20-61. It applies to “any parent who deserts or willfully neglects or refuses or fails to provide for the support and maintenance of his or her …. child of whatever age who is crippled or otherwise incapacitated from earning a living-” when the child is in “necessitous circumstances.”

Like the statute applicable to a child’s liability for support for a parent- this statute also contains an exemption for disabled children who qualify for public entitlement. The statute “shall not apply to the parent of a child of whatever age- if the child qualifies for and is receiving aid under a federal or state program for aid to the permanently and totally disabled.”

For more information, see this resource on filial responsibility laws.