FILIAL SUPPORT LAWS

LAWS THROUGHOUT THE STATES

More than half the states have filial support laws on their books. Most states that still have filial support laws as part of its statutory code rarely enforce them. The last time that Georgia successfully enforced its filial support law was 1936. Filial support laws are now coming back into focus, as judged by the relatively recent case of John Pittas in Pennsylvania. Pennsylvania more than most states has a more regular history of enforcement of its filial support statute, as judged from the several cases from 1994 and 2003. Louisiana recently enacted a filial responsibility act on June 29, 2015. North Dakota enforced its filial support law in 2013 when Four Season’s Healthcare Center sought payment from Elden Linderkamp, although the outcome of that case placed much weight on an allegedly fraudulent transfer of the parents land. These cases are the outliers, however.

ENFORCEMENT IN NEW YORK

There are no filial support laws in effect in New York. The New York legislature repealed the state filial support law in 1966 to enable the state to receive benefits under Medicare. The legal basis was that under federal statutory law, specifically 42 U.S.C. § 1396(a)(17)(D), a state cannot take into account an adult children’s financial assets when evaluating an individual’s eligibility for Medicaid. While New York does not have its own filial support laws, that does not necessarily end the inquiry for children concerned about potential liability for their parent’s care. Under the Full Faith and Credit Clause of the Federal Constitution a creditor can obtain a judgment in a sister state (or even foreign country) and domesticate it in New York and seek to enforce it, thereby making an end run around New York’s express denial of filial support laws. New Yorkers do not have to worry about this either due to a 1968 case which dealt with a similar issue. Most specifically, a Connecticut welfare investigator filed suit against a New York resident in Connecticut Courts to recover monies expended for the New York resident’s mother in a Connecticut hospital. The case was “transmitted” to New York Court where Mr. Mintz objected to such obligation in light of then recent filial support law amendment. The Court held while the 1966 filial support law amendment did not directly address the issue found in the case, the legislature only did so due to an “oversight” and that of all filial support obligations, “both intrastate or interstate,” are repealed by implication. In The Matter of Welfare Commissioner v. Mintz, 28 A.D.2d 14, 17 (N.Y. App. Div. 1967).  

CONTRACTUAL OBLIGATIONS

Certainly an adult child can be financially liable for a parent’s financial support in New York. Contract obligations, such as under an admission agreements signed by the adult child to help the parent obtain entry into a desirable care facility, may create liability.

REPEAL SOUGHT

The Pennsylvania Association of Elder Law Attorneys is in favor of repeal of Pennsylvania’s filial support law on grounds of fundamental fairness and the belief that it creates disharmony.