What Are Filial Responsibility Laws?
Filial responsibility laws are used to force a child (and spouse) to pay for the medical bills of an elderly parent who cannot pay for them. If you are successfully sued by a health provider or nursing home under one of these statutes, you will be liable paying the delinquent bill, and possibly also for the attorneys’ fees incurred by the plaintiff in bringing the lawsuit.
These laws were based on old English statutes that were passed to help the parishioners help pay for the cost of supporting the poor. The concept of filial responsibility laws is that parents have a natural duty to care for their children, and that children should care for their parents in their old age. Ohio’s filial responsibility law is found in Ohio Revised Code 3109.09.
The law states "it is the natural duty of all persons to care for their children." Then it goes on to state that if a parent becomes destitute , "any person" in Ohio responsible for the welfare of the destitute parent must provide for the care and support of the destitute foreign parents as necessary. Nowhere does the statute define what it means to be destitute or specify what "support" is required. The only guidance is a definition of destitute contained in a different statute, which states in pertinent part, "destitute" includes poverty due to physical or mental incapacity.
Health care providers and nursing homes that provide services to a destitute parent have the right to sue the "person" in Ohio responsible for the welfare of the parent for reimbursement of the services rendered to the parent. This means that any child of the destitute parent can be sued to pay for the medical bills. The phrase "person in Ohio responsible for the welfare of the destitute parent" is not defined in the statute. However, Ohio appellate courts have held that "person in Ohio responsible for the welfare of the destitute parent" would include a parent’s adult children, regardless of whether the children lived in Ohio or not.
Status of Filial Laws in Ohio
Ohio does not have a current filial responsibility law. Its former filial law was repealed when the Ohio General Assembly approved the Medicare Catastrophic Coverage Act in 1988. The pre-1988 law contained an insolvent parent provision which imposed on the adult child of a legally liable parent the obligation to pay for their parent’s care. While this provision was removed from the law, it is relevant to the history of filial responsibility laws in Ohio.
Whether an insolvent parent provision could withstand constitutional scrutiny is questionable. No Ohio courts have ruled on this issue, but courts from other jurisdictions have found insolvent parent laws to be a violation of the constitution. See e.g., O’Connor v. Commonwealth of Massachusetts, 486 F. Supp. 973 (Mass. 1980) (the statute imposes liability on adult children regardless of need and contradicts Congress’ purpose of providing hospital care to the poor); Butler v. Michigan Dept. of Social Services, 304 N.W. 2d 768 (Mich. 1981) (unjustly shifts the State’s public policy against the elderly to the elderly’s children); Concordia Lutheran Church v. Reinhard, 400 N.W. 2d 904 (Minn. 1987) (absent a concept of solvency, statute violates equal protection clause); Werner v. State of Utah Dep’t of Human Servs., 648 P. 2d 1365 (Ut. 1982) (statute violates equal protection clause and is an unreasonable exercise of the State police power).
While there is no filial responsibility law in Ohio today, article IV, section 19, of the Ohio constitution appears to authorize them. The constitution provides that "a debtor shall not be imprisoned for debt, except in the cases arising on written contracts."
With the repeal of the insolvent parent provision of the filial responsibility law, in order to hold an adult child liable for the debts of their parents, the only accountability for the child is the contract which the parent made with the adult child. For example, if Bobby takes out a loan to pay for his father’s nursing home expenses, but the loan is unsecured, he has no legal remedy to sue his parents for repayment and the nursing home or Medicaid will have to look elsewhere for payment. It is unlikely that the Ohio Supreme Court would adopt the insolvent parent provision of the filial responsibility laws since Ohio’s constitution appears to prohibit such legislation.
Impact to Families
The impact of filial support laws on Ohio families could be significant. Currently, Ohio is one of the few states that do not have active filial responsibility laws, which hold adult children legally responsible to support their parents if they are unable to do so.
If put into practice here, an obligation for the cost of long-term care could substantially burden Ohio families. For example, an annual nursing home stay is an average of $95,000. If an adult child was responsible for half of that cost, he or she could be shelling out $47,500 each year for their parent’s care. What happens if there are multiple siblings and one parent? The potential liability increases and, put simply, the math would be daunting. In addition to the financial burden, Ohio families could find themselves in a sticky ethical situation. What if you were one of five siblings, each with a different ability to contribute and willingness to pay? Would shared sibling responsibility lead to a stalemate? Imagine the family sessions – they are likely to become divisive. If a large portion of your income was spent on the cost of parental care, would you be able to fund your own retirement? What about your children’s education? Would you still be able to afford a vacation once a year?
Forcing adult children to take care of a parent has other social implications, as well. This could lead to other care-giving arrangements. Adult children caring for their senior parents could potentially be forced to move in with them, which carries additional life burdens, such as who is employed and who is not.
Comparison to Other States
In comparison to other states that have adopted filial support statutes, Ohio is more than reasonable. Ohio’s law is parens patriae; other states’ laws are punitive. Parens patriae is the right of the sovereign state, i.e., the government, "as the so-called ‘parent’ of children, or as having responsibility for all persons generally, to protect . " By turn, punitive is a parens familiae statute which is "involves an individual," and "is designed to punish a child whose dereliction of duty has left parents in need of public assistance" (see 10B Fletcher Cyc. Corp. & Bus. Org., ยง 14.20 (2016)).
Ohio and other states have commonalities, as well. The definitions of the obligor’s liability in Colorado and West Virginia are very similar to Ohio. A few states have both parens patriae and punitive laws, such as New York and Pennsylvania.
Legal Help and Resources
If you’re concerned about possible liabilities under Ohio’s filial responsibility rules, you have a couple of options. The first is to retain an attorney familiar with these issues. Your location is generally not as big a factor for elder law attorneys as it is for other professionals, and an attorney from out of town may be able to advise you if they know Ohio law. Still, you may want to search for a specialist in Ohio elder law to answer your questions.
You have further options for lower-cost answers to your questions. The State Bar Association of Ohio offers an online service that will let you ask attorneys questions about Ohio law . Although these aren’t the same in-depth responses you’d get from a private attorney, they can get you started in thinking about your legal options.
Another option for some is to check with the local legal aid society. Some centers offer occasional clinics with free advice, including on elder law issues. These centers often have income requirements for participation and do not provide long-term representation, however. A court funding program may be available from the local court; in particular, programs for guardianship and probate issues in elder law are common.
A final option for someone with more money to spend is to consider alternative dispute resolution (ADR) or arbitration in handling issues with parents.