What are the Filial Responsibility Laws?
Filial responsibility laws are laws that hold the children of senior citizens accountable for their parents’ costs of care, typically when funds are low or a family defaults on its obligations to pay the costs. They are based on historical and common law, in which the concept of filial responsibility arose long ago. Filial responsibility was codified into Ohio law in 1977, under the Ohio Revised Code § 5101. 52. Essentially what this means is that at the end of the day, relatives and heirs of a deceased parent can be held accountable to pay for their parent’s assisted living or nursing home care.
There has been talk of eliminating these laws because of their lack of consistent use. However, recent economic events have sparked renewed statewide interest in them , and the Ohio Filipino / Senior Legal Hotline has added this topic to its monthly list of client concerns. New York nearly passed a bill allowing collection of fees from relatives of parents who refused to reimburse the costs of a Medicaid bill. That bill was sent back to committee, indicating that there is some controversy surrounding the issue. In addition, some probate courts have begun to wax vigorous about testing the filial responsibility waters.
In addition to Ohio, filial responsibility laws exist and are in effect in Arkansas, California, Connecticut, Georgia, Indiana, Illinois, Kentucky, Massachusetts, Mississippi, Missouri, Montana, Nevada, North Carolina, Pennsylvania, South Dakota, Utah, Virginia, West Virginia, and, somewhat uncharacteristically, Florida.
An Overview of Ohio’s Filial Responsibility Laws
The state of Ohio is one of the states that imposes filial support obligations on its residents. The laws apply to a range of relatives, including spouses, children, grandchildren, in-laws, and grandchildren. The law provisions governing filial responsibility in Ohio is found primarily in Ohio Revised Code sections 5111.21 and 5101.58. The provisions of these laws apply to Ohio residents and non-residents. Section 5111.21 places a duty on the spouse of the individual receiving care, as well as on his or her children, grandchildren, parents, and grandparents, to provide the "necessities of life," which has been considered to include food, clothing, shelter, and medical care.
Section 5111.21 also provides that where an individual receiving care is without a means to meet his or her needs and is not receiving government benefits or assistance, that the individual who has the duty to support shall pay the state or county official for money expended for the care of the individual, provided that their income or resources are sufficient for that purpose. Section 5111.21(B) provides that there is no requirement to provide a larger share of the "necessities of life" than is commensurate with such person’s ability and means, and that there is no requirement to provide for anyone who has sufficient means to provide for himself or herself. The law provides for the institution of a claim by the government for recovery against a spouse, child or parent with respect to whom a court has ordered support and for reimbursement for costs or expenses incurred by the state in connection with such support.
Ohio Revised Code section 5101.58(A)(1) provides that a grandchild or great grandchild has the duty to support and maintain his or her grandparents or great grandparents, the duty to reimburse the county for expenses incurred on behalf of an indigent grandparent or great grandparent, and a right to reimbursement by such grandparent or great grandparent for the fair value of services supplied to that grandparent or great grandparent by that grandchild or great grandchild. In other words, the statute provides for both support and contribution rights of grandparents.
Ohio Revised Code section 5101.58 provides that if the Director of Job and Family Services makes a determination in writing that an applicant for assistance is financially responsible for another under this section, the state may recover from that responsible person the costs of care furnished, including room and board, nursing home care, custody, and medical, surgical, reconstructive, rehabilitative, and preventive care, medications, nutrition, supplies, equipment, transportation, or other items or services for the necessary maintenance and well-being of the individual or family members included in the application, to the extent such costs have not been recouped from other sources. In other words, this statute provides that the state can recover from a responsible person who may be a grandparent, grandchild or others with liability for care.
The general rule in Ohio is that the statute of limitations with regard to support claims runs five years after the date on which the county was last responsible. Thus, if the costs of care he incurred beginning in 2012, the five year statute of limitations would end in 2017. However, there is a specific statute of limitations provision that applies to guest/resident contracts with long term care facilities. This statute is located at Ohio Revised Code section 5165.47. This statute applies to contracts between long term care facilities and residents, irrespective of whether the contract is signed by the resident, their responsible party, or another individual. It also applies to individuals who reside in the facility regardless of whether they signed a contract.
Section 5165.47(A) states in pertinent part that any contract for residency in a long term care facility is unenforceable if the residency started more than three years before the written demand for payment was made.
Ohio Case Examples on Filial Responsibility
The laws regarding filial responsibility have been invoked in some recent cases throughout Ohio. First, the decision of the Supreme Court of Ohio in LFM, LLC v. Clark. In 2011, the Ohio Supreme Court ruled that three children were required to pay their mother’s medical bills for a stroke, as well as assisted living facility expenses. The three offspring, one of whom was Helen Clark (Helen) and co-defendant in the case, were ordered to reimburse LFM, LLC (LFM) the amounts owed to the assisted living facility for the mother’s care. Helen, and her siblings Ms. Kelly and Mr. Boyd, contested the decision, and the Supreme Court of Ohio affirmed the lower court’s decision that all three children were liable for the amounts owed. Prior to the Supreme Court’s decision, The Ohio Eighth District Court of Appeals in Cleveland found that Helen, Mr. Boyd and Ms. Kelly were each responsible for one-third of the amount owed to LFM under Ohio law regarding filial responsibility.
Another case that may be of interest is the case of Munn v. Alionis. In November 2007, Santiago Munn (Munn) seek payment from his mother’s estate for the funeral expenses and administrative costs that he spent. After the filing of an Accounting Report for the Estate by the executor, Alionis, Munn objected to the executor’s distribution of the Estate. The will stated the estate would be used to discharge the debts of the decedent. Munn argued the debts of the Decedent should cross to him.
In this case, the decedent was found not to owe Munn, but the Court required the payment of attorney’s fees back to the estate for Munn’s misappropriated spending and filing of the action. The Court noted the fact that the plaintiff is being punished for filing an action it was not entitled to file while also leaving the plaintiff with his own attorneys’ fees and the obligation to pay his sister’s attorney’s fees.
Legal Implications for Families
For families in Ohio, the issue of filial responsibility could pose financial and emotional challenges. If an elderly or disabled person needs assistance and their own funds don’t cover his or her care, the state can seek to recoup an individual’s medical expenses from family members—even an estranged child.
If the recipient of benefits under Medicaid (or Medicaid waiver programs, such as PASSPORT) becomes financially ineligible due to assets or income received from a family member, the state can seek to recover that money. The family members who could be held liable are limited to: (1) the spouse; (2) the parent; (3) the adult children of the parent; and (4) the siblings of the parent.
The recipient of Medicaid or Medicaid waiver benefits in his or her own right does not need to be a resident of Ohio for Ohio to pursue a claim of filial responsibility.
Exceptions and Legal Defenses
Ohio law does provide certain exceptions to filial responsibility. For example, in the state of Ohio, an adult child’s legal obligation to pay for a parent’s care terminates upon the child’s death. Further, Ohio law allows for a judicial hearing after filing the claim. It is through this hearing that the child or parent has the opportunity to articulate their position and/or present evidence. At its discretion a court may dismiss a filial complaint if analysis reveals that the Plaintiff was not a "financially responsible relative" due to a lack of assets. Finally, the court may decline to enter judgment against a financially responsible relative if they demonstrate an inability to pay. Often times this is contingent upon the amount owed in relation to the child’s income, debts and responsibilities (like other minor dependents) . In short, courts in Ohio have significant discretion regarding both the handling and outcome of these cases.
As a relatively newer area of law, there are few legal defenses to filial support claims. However, Ohio law is clear, "[I]f an individual is financially unable to pay for health care, the court shall enter a judgment for the individual in an amount equal to and not in excess of the individual’s ability to pay." Likewise, because this area of law is unique, Ohio has no statute of limitations for bringing these cases. Rather, courts will often apply the statute of limitations applicable to contracts. In general, Ohio applies a six year statute of limitations on contracts. Because this statute of limitations is rarely addressed by the courts, practitioners and scholars are left with limited guidance on how to apply it in the context of filial responsibility. More to follow on this issue!
Comparative Analysis with Other States
A comparative analysis of the Ohio filial responsibility laws with those of all other states, so far as the author is aware, is as follows. In Ohio, it has been held that a child’s obligation to support its parents "arises from the obligation imposed by statute and not from the parent-child relationship." McKamie v. Edwin S. Gardner, Inc. (1989), 43 Ohio App.3d 42, 541 N.E.2d 1052, which was based upon Ohio’s long standing filial duty statute, R.C. 3109.09(A).
By contrast, in many other states, the filial duty law is "intensely personal to the relationship between parent and child." Flemming v. Nestor, 363 U.S. 603, 617 (1960). Many states have made a decision to make a child’s obligation to support its parent "a matter of personal morality and one over which the state had no juridical control." Id., citing N.Y. Consol. Laws, c. 26. This latter approach has been followed by at least twenty-seven states: Alabama, Alaska, Arkansas, California, Georgia, Hawaii, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Hampshire, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia, Wisconsin and Wyoming. For these states, the parent-child relationship is "the sole source of an individual’s moral duty to care for and support an aged parent." Flemming, supra. Some of these states have very limited statutory provisions which make no mention at all of the due process or equal protection rights of parents and children. For example, Washington’s filial duty statute reads:
Every person having the ability so to do in law shall furnish to his or her- . . . (2) The parent, or parents, or any legally dependent child, or legally dependent adult, who have in their possession, control, or custody any property of the person without transfer for adequate consideration, shall furnish to the state a bond in such an amount, conditioned upon the support of such legally dependent persons which the department may deem adequate.
RCW 74.32.010. Conversely, in other states, such as New Jersey, liability is based on contract law and hinges on the existence of an express or implied promise to support. See generally, Medicaid Estate Recovery Programs and Filial Responsibility Statutes, R. Carter & Jeffry Dorman, ALI-CLE 2013 Conference on Planning for Long-Term Care.
Ohio is unique in this respect, in that its approach is somewhere between the two. While Ohio law does impose a legal duty to support, it is only triggered when a parent has a duty to support a minor child. Ohio’s statute reads:
The following are liable to maintain the following persons, to the extent of their ability, and according to their respective means, the expenses necessary for the support of such persons, . . . and necessaries and funeral expenses due to any parent who is unable to support himself or herself: . . . (A) Children and grandchildren, each in the proportion fixed by the court, in equal degree, and without regard to the order of birth, subject to the provisions of sections 5139.02 to 5139.06 of the Revised Code.
R.C. 3109.09.
However, there is one other, main difference: Ohio does not force a child to support its parent if the parent’s property is "sufficient in amount to enable him or her to support himself or herself." R.C. 5107.16(A). This part of Ohio’s statute is somewhat similar to New Jersey’s statute, which provides that a child is not liable if the child "did not have sufficient means to provide the support." N.J.S.A. 44:3-101. This becomes particularly important when the parent is in a skilled nursing facility.
How to Approach Filial Responsibility in Ohio
Ohio residents should take the following steps to navigate filial responsibility obligations and ensure that their loved ones receive the care they require. First, research the long-term care options available in your area. Understand the costs associated with these facilities and identify any financial resources that may be available to help offset these expenses. This could include Medicaid or other government programs for which the resident may be eligible.
Second, communicate openly with your loved one about their financial situation and their potential care needs. If it is feasible, discuss the possibility of moving to a less expensive facility or exploring alternative support options such as in-home care or shared housing arrangements with relatives. Third , educate yourself on the legal obligations you may have as a child or heir. Consult with an elder law or estate planning attorney who is familiar with filial responsibility laws in Ohio. They can provide you with more specific advice on what to expect and how best to deal with any requests from creditors or institutions seeking payment.
Finally, stay informed on any changes to laws or regulations relevant to filial responsibility in Ohio. This could include regular updates to state law or changes in federal law. Being proactive in your knowledge of the laws can help you respond to any potential situations before they arise.