What is Filial Responsibility?
Prior to passage of the federal Medicaid Modernization Amendments (MMA) in 1988, approximately two-thirds of the states had filial responsibility laws-a few still do, including Maryland. Filial responsibility laws are state laws that obligate adult children to support indigent parents, and they pre-dated federal Medicaid statutes. States like Maryland now rely solely on Medicaid laws to recoup past due child support from children from parents directly, without third party intervention.
Filial Responsibility Laws stipulate that adult children have a legal obligation to provide support for their impoverished parents. Until recently, only a handful of states enforced filial responsibility laws to collect long-term care costs for medical expenses of indigent parents, and remaining states in part repealed laws prohibiting debt collection . Filial responsibility refers to a legal duty that requires any competent adult to care or support a minor child or a parent that is involved in parental responsibility statutes. This duty also extends to a legally incompetent individual. In most legal jurisdictions, filial responsibility carries a high burden, so the presumption of parent-children responsibility would require that a child should reasonably provide for a parent’s basic personal needs.
In some states, there are statutory exemptions to filial responsibility statutes, or the duty may be relieved out of circumstances. These exemptions generally include financial inability to support the family, estrangement of the parent-child relationship, and caring for other dependents with limited resources. The failure to provide parental support could result in civil suits filed by the state or relatives, or in some cases, both. Most state laws are not actively enforced, but filial responsibility is still part of the law.
The History of Filial Responsibility Statutes in Maryland
Since common law times, courts have imposed common law obligations of support on adult-children of deceased parents. In the 1500s, English courts required the children of a deceased parent who real estate to "pay and levy" for the remaining parents’ support. Beginning in the mid-1800s, American legislatures began mandating these obligations through filial responsibility statutes.
According to a comprehensive study titled "Filial Support: An International Comparative Legal Study," the first filial responsibility law was enacted by the South Carolina legislature in 1794. South Carolina’s statute provided that persons having sufficient means "shall be obliged" to support indigent and impotent parents, grandparents, grandparents’ parents, grandchildren, and great-grandchildren "who are either by age or disease incapable of maintaining themselves."
Filial responsibility laws spread throughout the Southern United States, and by the mid-1800s almost every state had adopted such a provision. In 1861, for example, the Virginia Legislature enacted a law making it a misdemeanor for a son or daughter, above the age of 16 years, "to neglect to provide for" his or her indigent father or mother, if such child possessed sufficient means.
In the North, meanwhile, many courts framed obligations of support in the context of reparations for children’s failure to sufficiently love or care for their parents. In Ware v. Ware, 36 N.Y. 464 (1867), for example, the Court of Appeals announced that a good child’s design "to care for and support [his or her] parents" is "one of the best sanctions that can be imagined for the feeble old age." Id. at 469.
Most Southern states dropped filial support laws in the wake of the Civil War, while, typical of progressive era reforms, Northern states gradually revived them. In 1940, Wisconsin was the first state to adopt the modern version of filial support laws. Up until the 1960s, Illinois, Pennsylvania, Ohio, and New Jersey followed suit. The remaining 20 states, including Maryland, enacted filial support laws sometime during the 1970s. Some jurisdictions imposed monetary penalties on relatives for failing to provide support, while others conditioned the availability of public benefits on the proof of the failure to support.
Maryland adopted its first filial support provision in 1971. Just one year later, Maryland amended its filial support law to remove the requirement that relatives stand in loco parentis to the needy relative. See 1972 Md. Laws, Ch. 839, § 1 (adding new subsection to section 12-207 of the Maryland Code Annotated, Family Law).
Although treatments of filial support laws vary widely between states, the laws share two common themes. First, filial support laws apply only to needy parents and grandparents, not to needy adults without children. Second, there are no criminal consequences for violating a filial support statute. The only possible consequences are civil actions brought on behalf of the state or the needy relative.
The Current Law in Maryland
The current statutes governing filial responsibility are scattered throughout the Maryland Code. One statute in the Family Law Article, Financial Provision for Dependent Children, states that, "the parents of a child are liable to contribute to the child’s support in accordance with the Maryland Code of Family Law." The term "child" includes a "child who was born out of wedlock," a "stepchild," or a "child of a civil union or domestic partnership." A notable omission from this definition of "child" is the term "adopted" meaning that it is unclear whether a step-parent may be held liable for an adopted step-child’s support in Maryland.
The Anne Arundel Health Care Corporation, which owns and operates two hospitals in the Baltimore-Washington metropolitan area, states on its website that, "If a financial liability exists, the Accounts Receivable Department will file with the Clerk of Court a Lis Pendens. This is not a judgement; it is a notice of a pending court case."
Additionally, the Power of Attorney Act in the Estates & Trusts Article also contains a statute governing the obligations of an agent to pay for the principal’s support. It states that, "An agent’s authority to make disbursements to the principal includes authority to pay the charges of the principal for the principal’s care, maintenance, safety, and personal guidance, and for individuals necessary for that purpose. If sufficient assets are not available to make disbursements, the authority to make disbursements terminates on the 60th day after the date the assets first become insufficient."
The Health-General Article and the Family Law Article also contain statutes that govern the Division of Rehabilitation Services’ ability to recover from legal and biological parents of a child who is a disabled adult.
Legal and biological parents have a statutory child support obligation to support a disabled adult child in need of community-based services which includes, but is not limited to, durable medical equipment, personal assistance services, and medication. Disabled adults are defined as individuals 18 years of age or older who have a physical or mental impairment that substantially limits one or more major life activities.
Many Marylanders assume that their spouse is automatically responsible for their debts, including medical debts. This is incorrect. There is no general law in Maryland stating that spouses are responsible for each other’s debt merely by virtue of having married. In fact, Maryland law has an Anti-Cambrian statute that prohibits a married person from contracting on behalf of his or her spouse without prior authority of the spouse. However, legal and biological parents of an adult disabled child may be held responsible for the child’s support when it is determined that the child is in a community-based service program and is financially eligible for other assistance programs, including a Medicaid waiver for developmental disabilities.
It is important to note also that a parent may not be held liable for payment of a child’s medical treatment costs if the child was emancipated before the medical treatment was provided or unless there was a prior court judgment finding the parent responsible for the care of the child or unless a final support order is entered in the current action.
Maryland statute also contains a strict 3 year statute of limitations and other procedural requirements.
Cases and Precedents in Maryland
Over the years, a number of fascinating cases have interpreted Maryland’s filial responsibility law. In one case (Roth v. Roth, 193 Md. 309 (1949)), the Court of Appeals of Maryland (the state’s highest court) examined whether a daughter was legally responsible for her father’s medical expenses. Based on the doctrine of necessaries (the legal concept requiring an adult child to provide necessaries to an indigent parent), the court agreed that she was required to pay for the expenses until a county agency assumed responsibility for them. In practice, however, the county agencies do not appear to take advantage of the remedies available under the filial law. For example, in Oscherwitz v. Beth Scholes, et al., 86 A.2d 341, 358 Md. 532 (1995), a case involving the attempt at reimbursement by a county agency for care provided to an elderly decedent housed in a nursing home, the Maryland Court of Appeals declined to address the issue of whether the decedent’s daughter was required to reimburse the Anne Arundel County Department of Social Services for care costs paid by the county, because the trial court had not yet determined if that daughter had the ability to pay those costs. In its review the Court held: It is clear that in Maryland the obligations imposed by the doctrine of necessaries apply equally, regardless of who brought the proceeding for the support of the relative. What does distinguish the rights of the State from the rights of the respective plaintiff Donges [the decedent’s daughter] is that the State of Maryland has a statutory right under the Commission on Aging Act to assert its own claim against a child for the support of an indigent parent. Consequently, there are certain statutory changes to the right of offset and reimbursement for the amounts expended (by the State) or the amount of the resulting judgment (against the child), which are not available to Donges. Unfortunately, while the general duty to pay for necessaries is clear, the application of that duty is often far from clear.
The Impact on Families
Families may be surprised to learn that the decision to act as a caregiver for an elderly family member can have social and financial implications under Maryland’s filial responsibility laws. Some situations that may give rise to a claim for support recovery include: a caregiver-child moving in with and providing for an aging parent who, as an example, is physically disabled; a child taking out a secured reverse mortgage for the purpose of assisting in paying an aging parent’s debt; a common household between siblings and elderly parents; a parent providing support for a child with dementia or mental health issues; or substantial monetary gifts from a child to a parent.
Mediations by nursing facility providers are even becoming more and more commonplace in the Maryland courts and before administrative judges of the Maryland Department of Health and Mental Hygiene. The staff of such providers are oftentimes well-trained in the "art" of collector-calling , and when that fails, these same staff people move on to high-pressure mediations with adult children of their patients. Essentially, if the children refuse to pay or fail to execute a promissory note at these mediation sessions, they may face the possibility of litigation, either in the district court for payment of money or before the Office of Administrative Hearings for termination of Medicaid benefits. Perhaps filial responsibility laws are everywhere, and the practice just needs to catch up.
The legal landscape surrounding elder care issues is a complex and ever-evolving area. Attorneys can play a vital role in helping families navigate these waters, establishing strategies and services that support the best overall interests of the individual for whom care is being arranged.
Filial Responsibility in Other States
While all states permit adult children to voluntarily provide financial support to their senior citizen parents, Maryland is the only state, along with the District of Columbia and Puerto Rico, which has a reciprocity law encouraging other states to follow Maryland’s law. Currently, 30 states, including Maryland, Pennsylvania, Delaware and Virginia, have filial responsibility laws on the books. Comparing Maryland to its neighboring states, both Pennsylvania and Virginia have laws providing for the support of indigent spouse and children, though they are rarely invoked or enforced. Delaware does not have a comparable law, although under a statute dating back to the 1789, the U.S. Department of Labor has the authority to obtain from a child of a beneficiary "reimbursement for benefits paid on behalf of the former spouse or parent of the beneficiary." 29 Del. C. § 1111 (a) (16). This is, of course, a significant departure from Maryland’s law; although not always easily enforceable, Maryland permits recovery for the cost of an indigent parent, regardless of whether he or she is a medicaid recipient.
Advice When Seeking Legal Assistance
It is critical for persons who may be affected by a particular provision of Maryland law relating to filial responsibility to seek legal advice from a qualified Maryland attorney to determine whether the law will be applied in a particular case. The usefulness of complaints of unconstitutional vagueness, along with threats of being subject to criminal penalties under the criminal child support provisions of the Maryland Code, make the retention of legal counsel strongly advisable for persons seeking to understand their legal liability .
Readers may wish to contact the Maryland Legal Aid Bureau at statewide toll-free number 800-999-8904, which can help to identify the appropriate legal aid office nearest to the reader’s needs. Federal law provides funding to legal aid offices for qualifying low income individuals but it does not necessarily pay for legal services to inmates or people in residential facilities. However, legal aid offices will provide other assistance through referrals or legal advice.
