Monday, July 28, 2008

"Filial Support" in PA? Really?!?

On July 22, 2008, the Summer 2008 issue of Adventures in Law and Aging (PDF, 3 pages) -- the Newsletter of the Elder and Consumer Protection Clinic, of Penn State - Dickinson School of Law -- was posted online.

Published in that Newsletter was an important sidebar authored by the Director of the Clinic,
Professor Katherine C. Pearson, about filial support obligations of adult children towards their destitute parents.

With express permission from Katherine, I reproduce her comments, published in the Newsletter, about this controversial issue:


In 2008, that’s the most frequent question I get from curious members of the public — and from attorneys who are handling cases where a claim is made under the Domestic Relations Code, 23 Pa.C.S.A. § 4603.

Since the 2005 “codification” of the Commonwealth’s musty old indigent support law, Pennsylvania has become the most active state in the country for lawsuits asserting that adult children should pay for the
care of their parents, i.e., claims for “filial support.” The viability of each filial support claim turns on key facts and the statute deserves a careful reading.

In response to questions about filial support suits, I’ve written a 2008 supplement “
Filial Support Obligation in Pennsylvania: Adult Children, Parents, and Spouses,” for Jeffrey Marshall’s treatise, Elder Law in Pennsylvania, available from PBI in July.

Also, copies of past short articles I have written about this law are available on my
personal Web page, along with the text of the statute itself and a table of similar laws in other states.
Katherine provides resources online about "filial responsibility" at her Professorial Webpage under the heading Recent Articles and Materials on Filial Responsibility and Support Laws: What is the public policy behind this Commonwealth's law that requires adult children, who reside in Pennsylvania, to support their indigent parents if they also reside in Pennsylvania? Furthermore, is such an obligation expected, and is it fair?

In her thoughtful December 2007 article, Katherine speculated about a reason for the renewed filial support law in Pennsylvania, but also identified its broader effects.

The state fears drowning in red ink as well, and the state sees filial support laws as a means of requiring the care-facility to go after a child who has manipulated a parent or a parent's finances to benefit personally. That's the message of the most recent published appellate decision, Presbyterian Medical Center v. Budd [PDF, 19 pages], 832 A. 2d 1066 (Pa. Super. 2003).

However, Pennsylvania's law is not limited to claims against such "bad" children, who may have breached fiduciary duties under a power of attorney or committed outright fraud. * * *
The queries posed at the conclusion of her article remain pertinent, since there has been little debate, and no progress, in resolving the effects of the broad legislation readopted by the Pennsylvania Legislature hastily in 2005 and signed by the Governor as that year's Act 43:
Is a "filial support" law the way right direction to go in seeking payment sources for long-term care? Should the moral obligation that many people feel to provide financial assistance for long-term care for family members be backed by a legal support obligation?

If this is a good law, perhaps the public needs to understand it exists so that it stops operating primarily as a retroactive collection tool, a "gotcha law."

And if it isn't the right law for Pennsylvania in modern times, perhaps the hour has come to seek open debate and action by the legislature.
Update: 08/05/08:

Patti Spencer, Esq., of Lancaster, PA, noted this posting in an article posted July 28, 2008, on her Pennsylvania Fiduciary Litigation blog, entitled "Am I My Mother's Keeper?":
Neil Hendershot has an excellent post today on Pennsylvania's Filial Support Statute. He quotes Professor Katherine Pearson's sidebar in the Summer 2008 issue of Adventures in Law and Aging, "“SO, WHAT IS THIS ‘FILIAL SUPPORT’ THING?” and provides many citations to useful resources. * * *
Patti provided a history of "filial support" laws in Pennsylvania and adds her comments. I recommend reading her article.

Update: 08/07/08:

For a more generic consideration of childrens' responsibilities for their parents debts, and for suggestions how children might address the problem with their parents before the obligations become overwhelming, read "Should you worry about your parents' debts?" by Liz Pulliam Weston, posted on MSN Money:
With finances more complicated, the credit easier and the scammers relentless, more and more members of a frugal generation are deep in debt. Here's how you're affected -- and how to help.
Update: 07/16/09:

Two articles were published by national media in one week that focused on Pennsylvania's "filial responsibility" law and provided personal examples of their recent selective enforcement. See:
PA EE&F Law Blog post PA's "Filial Responsibility" Law in the News (07/16/09).