Wednesday, September 27, 2017

Does Indiana Law Require Filial Support?

May an adult child be found financially responsible for a parent’s long term medical care?

Back in the 1500’s, under English law, a child had a duty to contribute to the cost of a parent’s care, if parents lacked the ability to care for themselves. Does that principle still govern today?
That’s a question that has been a topic of discussion among elder law attorneys recently, as a recent article in the Indiana Lawyer explains. Two apparently contradictory legal facts are at play:
  1. The Federal Nursing Home Reform Act prohibits nursing homes from requiring a third party to sign or to be personally responsible for a resident’s expenses, or to payment as a condition of admission.
  2. Indiana is one of 30 states with their own filial responsibility laws requiring adult children to financially support their parents if they are not able to take care of themselves.
For filial responsibility laws to apply, medicalalertadvice.com explains, the following criteria would need to be met:
  • The parent must be accepting financial support from the state government
  • The parent has a medical or nursing home bill which they cannot pay (the bill was acquired in that state)
  • The parent is considered indigent (cost of care exceeds their Social Security benefits)
  • The parent does not qualify for Medicaid
  • The caregiver has reason to believe the patient’s child has the money to pay the bill and sues that child
There have been very few instances in which forced filial support has been imposed by an Indiana court. On the other hand, as we caution Geyer Law clients, Federal and state laws permit Medicaid to seek reimbursement from recipients’ estates. As elder law attorneys, we want to help children of elderly parents make sure their parents are as well cared for as possible. In our planning, we utilize many tools, including:
  • Long term care insurance
  • Gifting
  • Trusts
  • Spend-down
  • Annuities
  • Promissory notes
With proper Medicaid planning, families can ensure that their assets are passed on to the next generation, while at the same time avoiding lawsuits based on filial responsibility laws.

- by Rebecca W. Geyer

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