Many local residents consider a single issue when hearing about New York elder law planning: who is going to pay for nursing home care? Of course elder law includes much more than simply figuring out the finances of necessary long-term care. But for many families, the crux of this work is receiving help with Medicaid applications, protecting assets, and otherwise putting seniors in the best position possible to ensure comfortable care in old age.
There are different ways to provide for the care. Long-term care insurance is worthwhile for those who plan ahead, while the New York Medicaid program provides support to seniors who have no insurance and otherwise cannot afford the care on their own. Many middle-class seniors are forced to ‘spend down’ their assets in order to qualify for Medicaid. Various legal tools exists, however, (like Medicaid Asset Protection Trusts) to help keep assets in the family while still receiving Medicaid support.
This week many headlines were made across the country as an appellate court upheld a ruling that forced a son to pay a nearly $100,000 nursing home bill for his mother. The nursing home instigated the legal matter by seeking to enforce a “filial law” to collect unpaid long-term care bills.
When reading about this story, local residents may be wondering if something similar could happen here in our state. Could adult children be legally required to spend their own money to support their parent’s long-term care.
The short answer is No.
Twenty nine states currently have filial laws which impose financial obligations on various family members for the debts of other family members. New York is not one of those states and there are no indications that laws will be changed anytime soon. Even then, in the states which do have these laws, they are very rarely used. In many cases, the law is only used the force adult children to help complete Medicaid paperwork, instead of actually holding them financially accountable for a bill. However, as the recent state appellate court ruling shows, the possibility of more aggressive action exists in those states with these laws on the books.
Most laws of this nature require parents be considered legally indigent and children shown to have resources to afford the unpaid bill. However, there is often significant legal flexibility when defining indigent and payment ability, and therefore courts are free to find those requirements met in various situations if compelling arguments are made. For example, in the Pennsylvania case the man was deemed able to pay the $100,00 bill as a result of his $85,000 annual salary.
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