Surprise: Are You Ready to Pay for Mom and Dad's Health Care?

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Question: I heard a while back that there was some legislation in the works that would make children directly liable for their parents’ nursing home bills if the parents’ estate, etc., didn’t cover the bills. Do you know anything about that?

Answer: Americans are living longer and baby boomers now entering retirement are creating greater demand for elder health care. You probably know at least one person with a family member affected by Alzheimer’s or dementia. Medicare and its supplements help pay for doctors, tests and hospitalization, but not for long-term nursing home and in-home care. Medicaid (Medi-Cal in California) pays those bills, but only for the poor, and the costs have exploded since implementation of the Affordable Care Act.

Historically, “Filial Responsibility” laws date at least as far back as the Roman Empire, where offspring had the duty to support parents. English Poor Laws said that relatives should be the first source of aid before the government, and these ideals carried forward to the colonies and then the states. The shift came during the “Great Depression” when Roosevelt’s New Deal started the conversion from offspring to government responsibility for elder care. The enactment of Medicare and Medicaid in the 1960s was filial responsibility’s coup de grâce.

California’s filial responsibility laws date back to the 1870s and still exist in California’s Family Code Sections 4400-4405. The first paragraph states: “Except as otherwise provided by law, an adult child shall, to the extent of his or her ability, support a parent who is in need.” It goes on to say that the parent, or the county on behalf of the parent, can bring an action against the child to enforce the duty of support.

As far as I know, filial responsibility laws are not currently enforced in California. Medi-Cal is covering long-term care for elderly parents with minimum assets. But some wonder how long that can continue, considering rising costs and demand.

If you wonder about the justification for filial responsibility laws, read Patrick Murphrey’s article in the summer 2011 edition of the Virginia State Bar’s Family Law News. Here is an excerpt:

“There are two major theories justifying the implementation of filial responsibility laws: the moral theory and the reciprocation theory. The moral theory justifies filial support laws because they promote good and right behavior and punish the bad. In other words, it is morally good and right for a child to support his or her indigent parents and those who do not should be punished. The reciprocation theory suggests that there is a contract-like relationship between parents and their children. Under this theory, parents are required to financially support their children and children must in turn support their parents if they become indigent. A major criticism of the reciprocation theory is its treatment of the parent-child relationship. One could argue that since parents choose to have children, it is right for them to be required to support them. However, children do not choose to be born and do not legally owe any duty to their parents. Another criticism of the reciprocation theory is the element of duration. In most cases, parents are only legally obligated to financially support their children to their eighteenth birthday.”

Kenneth B. Petersen is an investment adviser and principal of Monterey Private Wealth Inc. in Monterey. Send questions concerning investing, taxes, retirement or estate planning to 2340 Garden Road, Suite 202, Monterey 93940 or ken@montereypw.com.