Filial Responsibility Laws and the Fourth Commandment

Honor your father and your mother, that you may have a long life in the land the LORD, your God, is giving you. — Exodus 20:12

The Fourth Commandment is most often interpreted as a directive for children to obey their parents and, by extension, for persons of all ages to obey lawful authorities. It has also been interpreted to mean that children remain obligated to respect, honor, and love their parents even after they reach the age of majority and are no longer bound to obey them.

Moreover, other passages in Scripture make it clear that this commandment carries with it a certain level of responsibility to care for parents who have become elderly or disabled:

My son, take care of your father when he is old; grieve him not as long as he lives. Even if his mind fail, be considerate with him; revile him not in the fullness of your strength. For kindness to a father will not be forgotten, it will serve as a sin offering — it will take lasting root. In time of tribulation it will be recalled to your advantage, like warmth upon frost it will melt away your sins. — Sirach 3:12-15

Of course, how this responsibility is fulfilled in any particular case will vary depending on the needs and financial means of the parents and adult children involved, the adult child’s responsibilities to his or her own spouse and minor children, and other factors.

With those caveats in mind, most Catholics and other Christians agree that adult children have a moral responsibility to help care for their parents in some way  if they cannot care for themselves.

But should this responsibility also be legally enforced by the state, in the same fashion that the state compels parents to support children while they are minors? In many parts of the United States, that is legally possible, and there is a movement of sorts to make that the case nationwide.

Currently, 30 U.S. states have “filial responsibility” laws requiring adult children, if possible, to support parents who would otherwise become financially dependent upon the state. The full list of affected states can be found at this link.

The concept of filial responsibility dates back to England’s Elizabethan Poor Law of 1601 which mandated that “every poor, blind, lame, and impotent person”  be supported by his or her parents, grandparents, children or grandchildren to the best of their ability in order to prevent such persons from becoming public charges. Prior to World War II, most states and the federal government had similar laws placing the primary responsibility for support of the poor upon their families first, and only upon the government if the family was unable to meet this obligation.

The advent of Medicare and Medicaid in the 1960s, however, seemed to make such laws obsolete. Federal law [42 USC 1396a (a) (17)(D)] forbids state agencies to consider the ability of any relative other than the applicant’s spouse to support the applicant when determining eligibility for Medicaid. This meant, for example, that an elderly widow with little or no income of her own could qualify for Medicaid even if her children were millionaires who could easily support her financially.

However, the rising cost of long-term care for the elderly and the strain it has placed on Medicaid budgets have prompted some states to institute new filial responsibility laws or revive decades-old laws that had not previously been enforced.

These provisions have been invoked against persons who give away money, property or other assets to their adult children to avoid having to use them to pay for long-term care. In such cases, the children who receive disallowed asset transfers may be ordered to return them or pay the state back in some fashion. But some think these laws need to go even farther. With the federal government tightening restrictions on asset transfers and Medicaid long-term care eligibility via the Deficit Reduction Act of 2005, the likelihood of nursing home residents being temporarily or indefinitely denied Medicaid assistance has increased, making it more likely that adult children may be asked or compelled to take up the slack.

Advocates of filial responsibility laws, such as this writer for the National Center for Policy Analysis (http://www.ncpa.org/pub/ba521) say it would help relieve taxpayers of the burden of caring for people whose own families have the means to contribute to or provide their care. The author also believes it would rekindle the ethic of self-reliance and family responsibility and encourage people to plan ahead for the possibility that they, or their parents, will need long-term care through fiscally responsible measures such as purchase of long-term care insurance policies.

Also, in families that have multiple children, it frequently happens that one or two of them end up doing most of the work of caring for the elderly parent. Sometimes this is done for good reason (e.g., the other siblings live out of state or have families of their own) and is agreeable to everyone involved. At other times, though, there may be a perception (true or not) that the other siblings are not pulling their weight, which triggers considerable resentment and animosity. A filial responsibility law requiring all the siblings in such a scenario to contribute toward the cost of a parent’s care may help ease the burden on the primary caregiving sibling.

Opponents of such laws, on the other hand, point out that while one can freely choose whether or not to assume the responsibilities of marrying or having children, one cannot choose the identity or the character of one’s parents. A strict or sweeping filial responsibility law could potentially saddle a hardworking, responsible adult with demands to “bail out” a financially irresponsible, alcoholic, drug-addicted, abusive, adulterous, or deceitful parent. Throw in the fallout from divorce, single parenthood and real or perceived neglect and the issue becomes even more explosive.

Most of us know people who have chosen to return to or remain in their home community or state, give up lucrative job opportunities, or even set aside prospects of marrying and having families of their own in order to care for disabled or elderly parents. When this is done voluntarily out of love, it is a praiseworthy, even heroic, action. But should it be expected or demanded of everyone, especially when the adult child has the welfare of his or her spouse and own minor children to consider? And even if direct care or financial support of a parent is a moral obligation or a religious duty, does that mean the government should force people to carry it out?

Many of the snowballing fiscal problems facing states and the nation as a whole are the direct result of the unraveling of the family as the primary unit of society. People are increasingly turning to the government for services such as child care and housing that once were provided by relatives and neighbors. Long-term care of the elderly is no exception. Whether or not it is possible or desirable to use the force of law to attempt to restore the fabric of family responsibility in this fashion is another story. What are your thoughts on this topic?

12 Responses to Filial Responsibility Laws and the Fourth Commandment

  • One problem is assessing the degree to which adult children can and should be held responsible.

    1. It is atypical for members of the current generation of elderly to have any kind of long term care insurance. The full force of expenses fall on the assets of the family.

    2. The minority who are admitted to nursing homes for aught but temporary rehabilitation are there (if I am not mistaken) a mean of two years or so. The cost for such would be ruinous for all but a few families. Mean annual charges for residence in a nursing home run to $104,000 here in Upstate New York.

    3. Care at home is agreeable, but it will commonly require some adult to give up their employment (which in turn impairs the ability of the family to support any future institutional care).

    4. Filial responsibility assumes something that is commonly but not universally true: that the infirm and addled parent will co-operate with their children in arranging various aspects of their care.

    5. Adult children are not legal guardians of their parents. An elder lawyer of my acquaintance recently informed me that guardianship proceedings are wretchedly expensive, emotionally wrenching, and will at times fail for the plaintiff.

    You have to be very careful with this sort of thing and see to it that structural mal-adjustments are removed (points 4 & 5), transactions costs (lawyers’ fees) are brought to a minimum, and an understanding is arrived at as to what portion of the assets of adult children can be attached and what sort of condition the parent must be in before institutional care is considered advisable. I have known people who sacrificed a great deal for their infirm parents (an engineer of my acquaintance has not worked for 14 years). I have also known elderly who were perfectly pig-headed and unmanageable by those around them.

  • Should their be penalties when deliberate neglect can be demonstrated? Possibly. But before such laws be enacted, I’d like to see a more just tax system in place, so that children can financially support their parents or provide for their care, etc. Welfare should be a last means of resort for those who have no other means of support. The government should not be taking away from income what should be used to meet one’s social obligations (including those beyond the family).

  • We live five blocks from my parents and less than an hour from my wife’s parents precisely because we have a responsibility to help them as they get older. Right now, this is not troublesome. We move boxes, fix things up around the house, take them shopping when they don’t feel up to driving, etc. Someday though, it is likely that the care required will be greater than we can manage while raising our children (3, 6, and 9).

    My brother is the director of a geriatric center and his stories are troubling. Of course, the most upsetting are those elderly persons who lie abandoned but the more common problem is that a lifetime of assets are wiped out very soon after admission to a full-care facility. If one has very few assets, $50,000 for example – the assets will be gone before a year is up and insurance will pick up from there. If one has a middling level of assets, perhaps $250,000 for example, your assets will also be gone before two or three years are up. Even the middling wealthy will last only five years or so before insurance is picking up the bulk of the cost.

    All this is to say that longevity due to medicine appears to have rendered the idea of saving for the end of one’s life a quaint notion. The end of life is now a democratized existence of managed care, insurance, and subsidy. Perhaps this is a fitting precursor to what follows.

    I am “investing for retirement” only in the sense that I want to live as well as I can before my body gives out. I expect to expend my assets BEFORE I require significant care. That will make me largely a ward of the State for a few years at the end but there is nothing I can do to forestall that so it is better to use the resources during a point that they can do me and my kin some good.

    This raises an ugly discussion about whether longevity without health is really a societal, familial, or individual good. Perhaps that is a topic for another time but it is a discussion I would like to see occur.

  • A filial responsibility law requiring all the siblings in such a scenario to contribute toward the cost of a parent’s care may help ease the burden on the primary caregiving sibling.

    If the assets of the other children can be attached by local courts. In the three cases of which I am personally acquainted, half of the children of the infirm parent live out of state.

  • “I expect to expend my assets BEFORE I require significant care… during a point that they can do me and my kin some good.”

    If you do, however, you should do so at least 5 years before you end up broke and in a nursing home (provided, of course, you have a crystal ball and can predict exactly when you will need to apply for Medicaid).

    Due to the change in federal law, nursing home residents who apply for Medicaid may be subject to penalty periods of ineligibilty equal to the amount of time they COULD have paid for their own care with any assets they gave away or disposed of at less than fair market value within the previous 5 years.

    If a penalty period is imposed, and a hardship waiver cannot be obtained, the resident then will have to get their children to cough up the money, move out of the home until the penalty period expires, or leave the nursing home holding the bag for those costs. This is the point at which some people think filial responsibility laws should be invoked.

    The purpose of the law, of course, is to discourage wealthy people from intentionally giving away significant assets to their children for the express purpose of “impoverishing” themselves so as to qualify for Medicaid.

    Unfortunately, depending on how the law is interpreted by Medicaid caseworkers, elder law attorneys, etc. it could also potentially come back to bite people who simply wanted to be generous to their children, grandchildren, friends, churches, charities, etc. if they cannot prove those transactions were made for a reason other than to attain Medicaid eligibility.

    This is a very difficult issue in that we have to balance the legitimate desire of people who have worked hard all their lives and want to leave something behind for their children and grandchildren, or give back to their community or church, with the legitimate interest of the state in insuring that Medicaid is reserved for the truly needy who have NO other means of obtaining care.

    How we can accomplish this, other than through encouraging people to purchase long term care insurance when they are still young and healthy enough that it won’t cost them an arm and a leg, I really don’t know.

  • This is where the locus of control is important. The parent may alienate assets without the knowledge or consent of her children (or at least a working majority of the children).

  • One aspect that has not been discussed here: The choices that a couple make in readying for their later years affect and are affected by the economic structure of society. 100 years ago, most people aimed for having at least 4 or 5 kids, often more. As a result, when social security kicked in 1935, they could peg 5 paying workers for every retiree as an acceptable model. This ignored the fact that once people got to assuming that government would provide a healthy chunk of their retirement income (most people at the time, and for 50 years thereafter, assumed it would be the entirety of their retirement income) they ceased to have the same motivations toward having 4, 5, or more children. Family sizes dropped, which killed the possibility of retaining the 5 workers per retiree model. So a national choice to shift the responsibility onto “them” (the gov) induced changes that make meeting such responsibilities impossible.

    Similar problems occur with elderly home and health care. In point of fact, nobody can expect to live their last 2 years of life alone, without assistance. But with the reduction in the number of children, and the increase in house size and cost, the economic model of wife working (after 6 to 8 years out of the workforce, perhaps) means almost no wives are at home, available to care for grandma and grandpa.

    My family planned a bit better: we built a house with an in-law suite for my parents, 10 years before they hit their end-of-life issues, and my wife did not work outside the home. We had family available to care for the parents, including 2 of my sisters who were free to move in with us for several weeks at a shot, over the last 8 months of life, which Mom spent at home instead of miserable in an institution. But to be honest, all that still would not have been sufficient, if God had not also provided what we needed: there were many, many alternative scenarios where the resources that we had available would NOT have been adequate.

    While we need an economic model that encourages families to assume that they will care for their own parents, we ALSO need things like long-term care insurance to be a normal part of family expense.

  • Another consideration is that with the decline of manufacturing industries, the deterioration of certain urban areas and neighborhoods, etc., many times children must move hundreds or even thousands of miles away from their parents to find work. In the days when just about any able-bodied person who could read and write (and even some who couldn’t) could find work in a factory or mine or on a farm in their community, it was easier to stay close to family. However, that’s not always the case today.

    If Mom and Dad live in some fading Kansas farm town and Junior has gotten a high-tech job in Seattle, or if Mom still lives in the West Virginia coal mining town where the mine Dad worked at closed years ago, and her kids live in Texas or Georgia or wherever, what are the kids supposed to do when she gets sick? Quit their jobs, uproot their spouses and their own kids and move them someplace where there is no work to speak of? While Mom or Dad could always uproot themselves and move in with one of the kids, if they absolutely refuse to do so, the kids can’t do much about it.

  • 1. Some years ago I had to do an analysis of census data collected in 1990. One datum I discovered: at any given time, 65% of the population live in the state in which they were born.

    2. Back in 1979, a man of my acquaintance turned in an honors thesis to the History Department at the University of Rochester which incorporated an an attempt at assessment of migration rates in the Genesee Valley between 1825 and 1835 (when a great deal of agricultural colonization of the valley was ongoing by migrants from New England). He studied two townships now in Monroe County. His conclusion: in a single decade, 70% of the population of these townships had decamped elsewhere. That is a level of demographic churn that I am not sure you would find even today.

    3. I would not wish to deny that social security programs and private pensions have their effect on fertility levels. The shift from agricultural to non-agricultural employment also has its effects. The decline in total fertility rates antedated the advent of social transfers in this country and the advent of social transfers did not prevent periods of increasing fertility during the years running from 1946 to 1957 and again after 1978.

    4. My great-grandparents spent their last years not in the town in Tennessee where they had lived nearly all of their lives, but shuttling between their older son in the suburbs of Washington and their younger son resident in a small town in northeast Pennsylvania.

    5. I have been investigating long-term care insurance. Cannot verify this at this time, but the consumer guides the agents pass out estimate that some 40% of the population will see the inside of a nursing home before they die (bracket out those receiving rehabilitation care in such settings). Some other portion will spend time in assisted living, but that is private pay and thus has a niche clientele. The point being, a large fraction of the elderly do not require long term care.

    6. Sorry to be repetitive on this point, but the notion that wage work was unusual for the female population prior to 1970 is one that needs to be retired. I cannot help but notice that the census taken 10 years ago found 18 million women between the ages of 20 and 62 and not in the labor force. There were about 64 million women in the workforce. I think housewives still exist in large numbers.

  • “At any given time, 65 percent of the population live in the state in which they were born.”

    That is true in my case. However, unless you live in a geographically tiny state like Rhode Island, that doesn’t necessarily mean you live within reasonable commuting/ driving distance of the community in which you were born or where your parents/grandparents/other relatives live.

  • True, but your parents’ feet are not nailed to the floor either. You commuting may not be a realizable option, but them electing to spend some of their retirement years in Springfield rather than Rockford may be.

Follow TAC by Clicking on the Buttons Below
Bookmark and Share
Subscribe by eMail

Enter your email:

Recent Comments
Archives
Our Visitors. . .
Our Subscribers. . .