PA “Filial” Support Law: What is it? Why do I care?

On the last day of our legislative session in July 2005, the confirmation of an old and somewhat unheard of law occurred in the form of Act 43 that became a part of Pennsylvania’s Domestic Relations Law entitled “Support of the Indigent” which refers to an adult child’s responsibility to care for and maintain or financially assist an indigent parent.

Great opposition was heard by the legal community when Act 43 was approved and there was even hope that the law would be repealed. To date, however, there has been no repeal, and in fact, Pennsylvania has made national headlines as one of the few states out of 30 that is currently entertaining civil legal actions against a child or children by a person or agency in order to obtain financial recovery for the cost of the care provided to the elder parent.

With health care issues in the mainstream of both political and public debate, coupled with the ever changing and uncertain positions regarding availability and qualification of Medicaid, it is no wonder that such a law is being looked to as an alternative legal source for payment when care costs go unpaid. Thus, it is now more the ever critical to understand the nuances and ramifications of this law.

Unfortunately, Act 43 does not specifically define “indingent” or “indigency” and thus prior case law must be looked to for guidance with regard to what this word means. For example, one case determined that a person does not have to be destitute or helpless to be considered “indigent”. Thus, there is no real tried and true definition and arguably any given situation where all or a portion of an elder’s care costs are not being paid for any number of reasons, could make an adult child open to a claim for filial support based on the parent being indigent. What this means for you as a child of an elder parent, is that if your parents have not adequately provided for their care costs such as through the use of their own assets, the purchase of long-term care insurance, private assistance, public assistance like Medicaid, or possibly yourself voluntarily, then you do leave yourself open to the possibility that a legal claim could be brought against you and/or any one or all of your siblings for your parent’s unpaid care.

The following is important to know about filial support, also referred to as filial responsibility:

  • Responsibility for such care does not apply to an individual who does not have sufficient financial ability to support the indigent person; however, there is disturbing case law to the contrary where a son was unsuccessful in establishing such a defense based on financial disability. In that case, a son’s unrebuttable net monthly expenses exceeded his net monthly income by approximately $250 and was still ordered by the Court to pay $125 per month toward to his mother’s medical care providers.
  • Responsibility of a parent will NOT include that of a child who was abandoned by their parent and the abandonment persists for a period of ten years during the child’s minority.
  • The process for establishing liability is through the filing of a Petition in the Court by the indigent person or any other person, public body or public agency having an interest in the care, maintenance or assistance of the indigent person. Should you be the subject of such a Petition, you will need to respond to the Petition through a filing in the Court, and in all likelihood, you will feel the necessity to obtain an attorney and pay attorney’s fees for such representation.
  • The amount of liability will be set by the Court in the judicial district where the indigent person resides.
  • The intentional failure to comply with a Court Order for support could result in holding the individual in contempt of court and the possible sentencing of the individual to up to six months of imprisonment. Again, the potential for more costs and expenses associated with defending yourself in such an action.

How can you best prevent yourself from being the subject of such an action? Work with your parents to make certain that they have planned adequately and properly for their future care needs. Sound preplanning, including early estate planning, on the part of both yourself and your elderly parents can make the difference between the headaches and financial burden of a possible legal action for filial support, and the comfort and security of knowing everyone’s needs and concerns have been met.

Reager & Adler, PC, is proud to take a proactive approach to our clients’ estate planning and elder law concerns through our Life Plan Portfolio (LPP). Through our LPP, we have identified both the inherent and legal needs of a person throughout four stages of their adult life. By identifying these needs and at what stage of your life these needs will arise, we feel we are able to better serve our clients proactively and holistically. As one of our founding fathers, Ben Franklin, said “An ounce of prevention is worth a pound of cure.” To learn more about our LPP or set up a consultation please contact Reager & Adler at 717-763-1383.

Susan H. Confair who is part of Reager & Adler’s Transaction Group contributed this article. She holds a B.S. in Business Administration from West Virginia University and a J.D. from West Virginia University College of Law. Susan’s practice focuses on all aspects of real estate law, estate planning and elder law. She may be reached by calling (717) 763-1383 or via email at SConfair@ReagerAdlerPC.com.

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