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Can You Be Held Personally Liable for Your Parent’s Long-Term Care in Virginia?

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By Sarah Schmidt

In 2017, the average cost of nursing home care in Virginia amounts to $94,896 per year, $7,908 per month, for a private room.[1] That cost is steep enough to concern even the most affluent of clients. While children often feel morally responsible to step in and help out an aging parent financially, what if they do not?  What if they cannot? Can they be held legally responsible? The answer may surprise you.

As many as twenty-nine (29) states have filial responsibility laws on the books.[2] Filial responsibility laws are statutes which require an able child to provide financial support for an indigent parent.  Any legal obligation of an adult child to support his or her parent is not founded in common law; such an obligation can only be created by statute.[3] While many states have never enforced their filial statutes,[4] such statutory obligations do exist, and the policies behind them are deeply rooted in history and tradition.[5]  The theory and policy behind filial responsibility is one of reciprocity. When the government began providing public benefits through social security, Medicare, and Medicaid, this greatly reduced the need to enforce filial responsibility laws.[6] Some commentators, however, opine that the enforcement of such obligations will resurge due to the predicted deficits in the public benefit programs.[7]

 

Virginia Code Section 20-88 was enacted in 1920. It imposes an obligation on persons eighteen years of age or older, to provide for the support and maintenance[8] of his or her mother or father, if: (1) after reasonably providing for his own immediate family, the child is of sufficient earning capacity or income, and (2) the parent is then and there in destitute or necessitous circumstances.[9] The Virginia Supreme Court interpreted this to be a subjective standard and found that the parent’s standard of living to which they are accustomed is taken into account.[10]

The juvenile and domestic relations district courts have exclusive jurisdiction in all cases arising under Virginia Code Section 20-88. Because the juvenile and domestic relations district courts are not courts of record, the total number and frequency of cases involving Code Section 20-88 remain unknown, but the statute has been enforced. For example, this statute was enforced in a 2015 case filed in Virginia Beach Juvenile and Domestic Relations District Court, where a Judge ordered eight children to pay for the assisted living expenses of their biological mother in the amount of $5,500 a month. This award, according to counsel for the petitioner of that case, amounted to as much as $71,500. The order was appealed to Virginia Beach Circuit Court, but the case settled before trial. [11]

While the Virginia Supreme Court has never considered a case regarding filial responsibility and long-term care, this statute undoubtedly extends to support for the cost of long-term care. Fortunately, there are a number of defenses a child might use to protect himself or herself from a filial responsibility action, but the details of those defenses are beyond the scope of this newsletter. Should you find yourself facing an action by a third-party to be held liable for your indigent parent, it is imperative that you hire an attorney with experience in elder law and long-term care planning.

[1]       See Genworth 2017 Cost of Care Survey (last visited Oct. 30 2017),  https://www.genworth.com/services/servlets/pdf/CostofCare_2017

[2]     Jared M. DeBona, Mom, Dad, Here’s Your Allowance: The Impending Reemergence of Pennsylvania’s Filial Support Statute and An Appeal for Its Amendment, 86 Temp. L. Rev. 849, 855 (2014).

[3]     Americana Health Ctr. v. Randall, 513 N.W.2d 566 (S.D. 1994).

[4]     Lundberg, supra note 29 at 534.

[5]     Swoap v. Superior Court, 516 P.2d 840, 848–49 (Cal. 1973) (“[T]he duty is deeply rooted and of venerable ancestry; it can be traced back . . .  to the year 1601.”);  Americana, 513 N.W.2d at 571;  see Jared M. DeBona, Mom, Dad, Here’s Your Allowance: The Impending Reemergence of Pennsylvania’s Filial Support Statute and An Appeal for Its Amendment, 86 Temp. L. Rev. 849, 855 (2014) (referring to the Elizabethan Poor Laws in 1601 which created statutory obligations to provide for poor family members).

[6]     Jared M. DeBona, Mom, Dad, Here’s Your Allowance: The Impending Reemergence of Pennsylvania’s Filial Support Statute and An Appeal for Its Amendment, 86 Temp. L. Rev. 849, 849 (2014).

[7]     Id. at 856.

[8]   Mitchell-Powers v. Hardware Co. v. Eaton, 198 S.E. 496, 499–50 (Va. 1938)  (“Support and Maintenance, as used in the statute, mean in a moral and legal sense, having a regard to the situation, mode of life and condition of the persons concerned. It means more than the son or daughter, if of sufficient earning capacity or income, must do more than relieve the pangs of hunger, provide and furnish only enough clothes to cover the nakedness of the parent. He or she must furnish such support as comport with the health, comfort, and welfare of a normal individuals according to their standards of living, considering his or her own means, earning capacity and station in life.”).

[9]    Id. at 499 (emphasis added) (finding that “Destitute” or “Necessitous Circumstances” is defined as: “not possessing the necessities in life; in a condition of extreme want; without possessions or resources,” and “living in or characterized by poverty; needy . . . [and] as narrow, destitute, pinching, [and] pinched.”).

[10]      Id. (finding that Va. Code § 20-88 “was intended to cover the case of a parent in destitute or necessitous circumstances according to his or her standard of living.”).

[11]       See Johnson v. Southerland, Virginia Beach Circuit Court No. CL15-381 (2015).

 

Kit KatAsk Kit Kat – Shrews in Winter

Hook Law Center:  Kit Kat, what can you tell us about how shrews handle the winter? Are they out and about or do they hibernate?

Kit Kat:  Well, they are out and about for sure; however, the interesting thing is that their skull and brain mass shrink by about 18 % during the winter. Shrews are about the size of a mouse, but are really more like a mole. Also, they are found in almost all parts of the world. Scientists speculate that their brains become shrunken to conserve energy. According to Javier Lazaro of the Max Planck Institute for Ornithology in Germany, “They also have high metabolic rates and very little fat stored in their bodies. Therefore, they starve within a few hours if they do not hunt constantly.” Therefore, a smaller skull and brain, as well as some of their major organs and  their spines also shrivel in size as well. A smaller corpus means less food is needed to sustain it during the cold months.

To conduct the study, the researchers captured 12 shrews in Germany near the Max Planck Institute from summer 2014 to fall 2015. All were micro-chipped, and measured at three different intervals. The skull-shrinking phenomenon was noticed in all twelve. What the scientists think happens is this—their “brain case shrinks when the joints between the bones of the skull reabsorb tissue during autumn and winter. As spring approaches, the bone tissue regenerates.” Scientists are not sure why other invertebrates can’t do the same, but the phenomenon may have implications  for humans, especially those who are afflicted with osteoporosis, and other bone and joint diseases. Medical researchers are very intrigued by this new information. Stay tuned as scientists continue to study this issue. (Douglas Quenqua, “As Winter Sets In, Tiny Shrews Shrink Their Skulls and Brains,” The New York Times (Science section), Oct. 23, 2017)

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Posted on Tuesday, November 7th, 2017. Filed under Newsletter.