When parents enter a nursing home or assisted living, adult children are often confused regarding their responsibilities. Does it matter whether one of them signs Dad in and is considered a “responsible party?” How about signing as “indemnitor?” Is it safe to be agent under power of attorney and does biological relationship alone bring with it responsibility for a parent’s nursing home or assisted living bills? These are questions that often require a trip to a knowledgeable elder law attorney’s office to be certain but, here are some general rules.
First, as to the “responsible party” issue, generally speaking you are responsible under the document you sign only to the extent of your parent’s assets, not yours. However, be sure to read any specific document before signing to be sure and, even there, it is best to sign either using your parent’s name “by” your name or “as agent under power of attorney only”. Note also, even if you are not the “responsible party,” you could have other responsibilities. See below.
You do not want to sign as “indemnitor” unless you are willing to pay your parent’s bills from your own personal funds. Be sure to get competent legal counsel before signing such an agreement.
Serving as agent under power of attorney does not require you to pay your parent’s bills from your own funds but does require you to act responsibly with their money. You serve as a “fiduciary,” someone with a special relationship who is expected to look out for your parent’s best interests and can be held accountable if you fail to so act.
Finally, there is the category known as “filial responsibility.” Here, an adult child might find a claim against him or her for a parent’s care. Note that, importantly, if a parent’s bill is being paid by Medicaid, filial responsibility does not become a problem since a nursing home cannot receive payment for the government and payment from you at the same time. Therefore, for parents in nursing homes that take Medicaid, it is extremely important that the application is done properly to avoid responsibility being claimed as to an adult child.
In HCRA v. Pittas, a 2013 Pennsylvania Superior Court case, the Court entered a judgment of nearly $93,000 against a son of a nursing home resident under Pennsylvania’s “filial responsibility” law based only on the biological relationship of son to indigent parent. The Pennsylvania Supreme Court failed to take the case so the lower court’s decision stood.
The Pittas reasoning is not necessarily limited to care in a nursing home or assisted living/personal care home. In 2015, a case, Eori v. Eori, involved an adult child who was caring for Mom in his home. The care became too much for him and he asked for support from his brother and sister. When his brother refused, the caregiver filed on behalf of Mom for support. He won.
Children who have distanced themselves from their parents and leave all the care and expense to one of their siblings might be called upon to pay support in a similar way to the support they might now provide for their minor children or spouses.
Here are some things to know.
First, for filial responsibility to apply the parent has to be “indigent” but this does not require much. If a parent does not have enough to pay her bills, this qualifies as indigent.
Second, there are defenses to an action for filial responsibility but these relate either to inability to pay based on a formula given in the law or abandonment for an extended period of time, again based on the description in the law.
Importantly, as an adult child of a parent who needs care, you should not ignore bills believing you could never be responsible. You want to know that bills are paid. A facility or even a family member might absorb the cost or might not. There is risk involved.
Finally, it pays to work together with other family members toward solutions wherever possible. Regular family meetings can help. Planning can help. If you need a professional, it is better to seek help earlier. In the long run it may not be enough to say your brother or sister should go it alone.
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.