Filial Responsibility: Fossil or Phoenix?

 

Filial Responsibility: Fossil or Phoenix?

By: Stephanie N. Prestridge, J.D. and Stanley J. Bordelon, II, J.D.

In May 2012, our firm began receiving an unusual influx of inquiries regarding a topic that had never previously registered on our radar as any kind of serious priority. The national media, including The Wall Street Journal and Forbes, had picked up on a rather conspicuous ruling out of the Superior Court of Pennsylvania in which a son, John Pittas, was held liable for his elderly mother’s $93,000 nursing home bill. See, Health Care & Ret. Corp. of America v. Pittas, 2012 PA Super 96 (Pa. Super. Ct., 2012). Soon thereafter, doom and gloom headlines began appearing on legal blogs and local media everywhere.

How can they do that? Was the son rich or something? Was it because he owed his mom money? The panic had begun. While the initial reaction to the court’s ruling by our clients and the public was predictably fear and disbelief, an underlying struggle for clarification became evident when we examined the questions more closely. The reason for the apprehension was obvious—nobody wanted to be the next John Pittas. But, the motivation at the core of the questions was ultimately driven by a deeper, almost defiant need to know: a) where in the social contract is notice provided that warns us we can wake up one day and own another living person’s health care bills without any prior agreement whatsoever to pay those debts; and b) where do we opt out of this deal.

Presently, the notice portion lays buried beneath the high-profile laws that dominate our discussions today in twenty-nine, mostly antiquated, filial responsibility statutes in states that impose, in one form or another, a reciprocal obligation on children to provide life’s basic necessities of food, clothing, shelter, health care, and even financial assistance to parents. Although these laws have existed throughout history, and form the basis of the modern child support framework, the concept of enforcing mandatory financial support of parents has been practically extinct. While many people volunteer to take on that responsibility, most of our clients do not understand how a court can order a child to pay for a parent’s medical care.

Pittas serves to remind us not only that these statutes exist, but also how powerful and far-reaching their implications can be when effectively utilized. It prompted our clients to ask us how they should go about avoiding the same fate. As one might expect, most people were concerned about inheriting a debt. However, a surprising number were just as worried about being responsible for leaving behind a debt. After all, parents do not want to be a burden to their children. In fact, most want to help their children and grandchildren by leaving accumulated savings, property, and other cherished assets. Fortunately, these cases have been very uncommon over the past fifty years. Unfortunately, they have also been as hard to predict as a lightning strike.

Presumably, many thousands of Americans are in a similar situation as John Pittas, yet escape liability. This seemingly random application of the law led us back to a recurring theme from the many questions we received on this topic, particularly the supposition that John Pittas must have done something wrong to warrant such a “punishment” from the court. Thus, we set out to see if we could determine if there is in fact a common denominator among “victims” of the filial responsibility lottery system.

First, it should be of some comfort to acknowledge that if John Pittas had simply helped secure Medicaid coverage for his mother in a timely manner, he could have avoided the recovery action altogether. The less comforting aspect of this case is that a Medicaid application was pending at the time suit was filed. Therefore, the best way to opt out of financial responsibility for a parent’s long-term care is to seek professional help and secure Medicaid coverage as soon as possible. However, we know there are many cases in which this does not happen, whether through negligence or ignorance of the process.

Next, although there are twenty-nine states with filial support laws, not all of them permit third-party creditors to recover health care costs from family members. Most filial support laws provide that a parent can sue a child. However, Pittas occurred in Pennsylvania, where the statute expands standing to include “any other person or public body or public agency having any interest in the care, maintenance or assistance of such indigent person.” The good news for the majority of Americans is that Pennsylvania and South Dakota are the only two hotbeds of filial activity, registering a total of six reported appellate decisions in the past twenty years, whereas no appellate decision has been reported in which a child has been held liable for filial support of a parent during the past thirty years in any of the other twenty-seven filial support states.

Finally, while most filial responsibility statutes have a means-based escape clause, it is safe to say that John Pittas and the other defendants who have been held liable under these statutes have all apparently failed to prove their inability to financially support the subject parent. In Pittas, the court reasoned that John Pittas’ $85,000 a year salary was enough to pay off his mother’s nursing home bill because “he had recently paid-off a tax lien by making monthly payments of $1,100.” The court’s reasoning reflects similar subjectivity found in an older case out of Louisiana in which the court held a son responsible for alimony to his mother because he “sports around in a new Chrysler.”

Although we have been unable to crack the code in figuring out a clear standard for what constitutes financial ability to support a parent’s $4,000 a month nursing home habit, perhaps the best lesson to be gleaned from these past cases is the importance of appearing irresponsible and destitute when at the nursing home, court and sporting around town. Maybe Medicaid spend-downs should include the mandatory purchase of a Yugo for children to drive on visitation days. And, if there was ever a good excuse for challenging the decorum of the court’s “no tank top” policy, a filial-support-of-a-parent hearing would seem to fit the bill. The absurdity of these suggestions highlights the bizarre application of these arbitrarily enforced statutes.

What is less arbitrary is the frequency of the calls being made for the expansion of filial responsibility law powers, including giving state agencies, nursing homes, and other care creditors the ability to bring claims under the statutes, circumventing the need for parents to sue their children for support, which is exactly what happened in Pittas. Ten years ago, Pittas might have been just one more in a random chain of filial responsibility decisions that periodically reminded us all of lightning’s potential danger. However, an increasing number of participants in the long-term care system and tough economic times should continue to propel private parties and state governments toward exploring new and enhanced recovery methods in order to help offset the billions spent annually on long-term care.

If Pittas represents a successful method of attaching parental debt to unsuspecting children who may or may not be capable of paying those debts, then the expectation should be to see more attempts at collecting debts by seeking to enforce filial support laws. Although the narrow circumstances of Pittas tend to suggest this is not a potential watershed decision, it may also be the best evidence yet that these arcane laws are starting to rise from the ashes.

About the Author:

Stephanie Prestridge and Stanley Bordelon are attorneys at Lineage Law, LLC, an estate and business planning law firm serving clients throughout the State of Louisiana. Stephanie graduated magna cum laude from Louisiana College in 1998 and completed her legal studies at Loyola Law School of New Orleans in 2004. While in law school, she was invited to participate in the Loyola Law School Law Review and she was a member of the International Law Moot Court team. Stephanie is a member of the Louisiana Bar Association and the Trusts, Estate, Probate & Immovable Property Section. She is also a member of the National Association of Estate Planners and Councils. She may be contacted at stephanie@lineagelaw.com.

Stanley received his undergraduate degree from Spring Hill College in Mobile, Alabama and his law degree from Loyola University New Orleans College of Law in 2010. He is a member of the Louisiana State Bar Association, the American Bar Association, the National Academy of Elder Law Attorneys, and he has received accreditation by the Department of Veterans Affairs (“VA”) to prepare, present and prosecute claims for veterans before the VA. He may be contacted at stanley@lineagelaw.com.