Filial Responsibility Laws: What Are They?
Filial Responsibility Laws are statutes that were adopted by many states early in the twentieth century. The purpose of these Laws is to impose financial responsibility, under certain circumstances, upon adult children for the outstanding medical and nursing home expenses of elderly parents. These responsibilities can include recovery of welfare benefits from children and seeking reimbursement, on behalf of a long-term care facility, for unpaid accounts of an elderly resident.
In most states, including Georgia, a long-term care facility may seek reimbursement for unpaid accounts from an adult child having the financial ability to provide the money. The facility must first try to determine the financial ability of the resident to pay for his or her care , along with other resources that may be available to pay for the care.
Although Georgia has a Filial Responsibility Law, it has never been tasked with the job of producing any rules or regulations governing the use of the Florida Responsibility Law. In fact, Georgia law does not even specifically empower the Department of Family and Children Services to seek reimbursement under the Filial Responsibility Law, but simply empowers them to determine if there is an outstanding debt owed. (Georgia Code Ann. § 49-7-22(a)) However, no one would dispute that there are two primary purposes for which a Filial Responsibility Law can be used. They are:
Georgia’s Filial Responsibility Laws
Georgia has no statute obligating family members to support their parents, and in fact Georgia law has explicitly negated the enforceability of filial support obligations by private contract (O.C.G.A. § 53-517) ("Integral to the concept of support is that the obligation is imposed by law and not by private contract, thus eliminating the question as to whether a valid consideration was given or a valid promise was made."). However, there have been efforts to enforce support agreements entered into pursuant to Medicaid Waiver programs. Although there have been unsuccessful attempts to enforce support agreements outside the Waiver context, an agreement entered into pursuant to a Waiver program appears enforceable under Georgia law.
In Georgia, numerous support agreements entered into pursuant to the Georgia Medicaid Waiver program have been enforced, and collections have been supported by the Medicaid Waiver program’s repayment provisions. Varnell v. Gibbs, 268 Ga. 404 (2) (492 SE2d 658) (1997) ("We hold that the Legislature intended Medicaid Waiver Contracts to be enforceable contracts supported by mutual promises.")
Thus, to the extent that there may be some hope for enforcement of a support agreement under a Medicaid Waiver program rather than pursuit of enforcement under the common law cause of action for necessaries, a distinction must be drawn between Georgia Medicaid Waiver agreements and private support agreements.
Implications for Georgia Residents
Georgia is one of a limited number of states in the U.S. where filial responsibility laws are on the books. These laws essentially require adult children to care for their aging or incapacitated parents if they do not have the financial means to pay for the proper care. If these children do not care for their parents, he or she may be responsible for all or some portion of their care. This means that if your parents need nursing home care, you may be on the hook for all of it . . . for the rest of his or her life. If, however, you cannot afford to do so, there are a few options and protections available.
Under a typical scenario, an adult child would need to pay Medicaid only for the difference between his or her parent’s income and the cost of the residency (up until the point of death). If there is a remaining balance, the state may file a lien on the parent’s estate after death. Aside from certain exemptions, this general rule applies to any place where individuals live and receive care or treatment in exchange for money or other payment. This may include a nursing home, assisted living facility, rehabilitation center, long-term acute care hospital, or ICF/MR home.
Some individuals and families may be exempt from this law. For example, in circumstances in which the child is required to make medical support payments as part of a divorce, that child would be relieved of the responsibility to pay for that parent’s medical care. The same is true for parent’s who have undergone bankruptcy recently, to the extent that bankruptcy discharge orders may relieve the child of his or her obligations under the law. In addition, states can deny claims against children who are incapable of supporting their parents, providing certain conditions apply. Specifically, these conditions allow for denial of claims where the child is: legally incompetent; enrolled/actively pursuing enrollment in a college or university; or caring for an invalid or disabled person.
History and Evolution of the Law
Historically, Georgia law provides that adult children could be held liable for a parent’s long-term care costs. O.C.G.A. § 36-12-13 lays out that when parents are unable to support their indigent child, the county is responsible for providing assistance. In turn, if the county associations assist the child, the child will owe the county the amount expended by the county. The existence of the law ensured that counties would be able to recoup funds spent on indigent children, and that parents could still seek assistance for their children without fear of being unable to pay for the services they needed.
This law recently changed, however, when what was a long-standing provision was amended after the Georgia General Assembly passed SB 82 in 2020. The bill amended § 36-12-13 so that the term "child" was now replaced with "spouse," effectively creating marital responsibility for long-term care costs via state law.
Married persons primarily are responsible for the support of their spouses, and § 2-1-4 of the Georgia Constitution outlines "the right of the spouse to support from the other spouse." Georgia Courts have long recognized an obligation of spousal maintenance and support, which included the duty to support a spouse who is indigent or incapable of self-support. Therlin v. Therlin, 272 Ga. 831 (1999). Therlin "read the duty of spousal support into Georgia’s law on spousal divorce and alimony," and this obligation included support after marriage, since "Georgia law presumes a marriage of permanent duration absent proof to the contrary." Therlin v. Therlin, 233 Ga. App. 583 (3) (2005).
The law does not exactly place an equivalent burden upon adult children. It is clear from the face of the law, that the equal treatment of adult children and spouses was never within the scope of SB 82. Children of living parents are not entitled to maintenance from parents, and § 36-12-13 does not require adult children to support their parents because their relationship would not be in existence if parents had not procreated.
The amended law went into effect May 3, 2020 after an initial effective date of June 30, 2020. It was approved by Governor Brian Kemp on April 21, 2020. The revised law provides that upon the lapse of forty-five days, a spousal charge will exist. In addition, any restrictions or limitations in § 36-12-13 will apply as well.
The amended law raises new claims about the possible application of uniform laws. While § 36-12-13 is framed within the context of support from the municipality and the county, § 36-12-13 is a local law and not a general law when applied to municipalities as it only applies to the counties that have specifically adopted it. Wartluft v. Murray County, 261 Ga. 317 (1991). It is unclear how the amendments to the law will impact municipal codes specifically separate from county codes, but it can potentially open up issues similar to those created by the enactment of programs like the Georgia Fund.
The Georgia Fund was created to provide indigent medical assistance for the provision of inpatient and long-term care services to uninsured Georgia residents who had been involuntarily exposed to high cost of care services. The Georgia Fund was created by the Georgia Legislature so local governments would have an additional option to recoup funds expended for indigent care. It did not, however, create an enforceable law where local government could attach a claim for recovery of funds for high cost of care services to personal property.
Adobe applied the rules of statutory construction to find that the Georgia Fund statute was limited in its scope to the scope of uniformity requirement in Article I, Section II, Paragraph VIII(c) of the Georgia Constitution. It therefore did not allow Georgia municipalities to uniformly apply the Georgia Fund to recoup funds paid by the municipalities for indigent care.
Similarly, the amendments to O.C.G.A. § 36-12-13 give rise to similar uniformity issues. The obligations placed upon spousal relationships by the law apply equally to all localities. However, the law does not uniformly apply to all municipalities because counties enforce the law within municipal limits.
During the legislative session for 2021, an amendment was proposed in Senate Bill 99, an Act to amend the laws regarding the obligation of an adult child to support his or her impoverished parent. Specifically, SB 99 sought to amend subsection (a) of O.C.G.A. § 36-12-13 by replacing "each" with "each municipality or county" and replacing "any locality" with "any municipality or county." The amendment was rejected.
No amendments have been made since the rejection in June 2021, and it remains to be seen how counties and municipalities will both go about enforcing the pre-existing laws and the recent amendments to the code.
Challenges and Controversies
Filial responsibility laws, including Georgia’s, remain relatively unused due to their limited scope and strict enforcement parameters. "Most [judges] are not willing to order people who already have problems in terms of their finances and employment to pay for the care of their family," said Morris Klein, an elder law attorney in Chicago.
Even if the courts were willing to enforce the laws in every instance, some argue that bills of support would create a chilling effect on other relatives’ willingness to step in and support their elders in some way. "If I know that my mother’s assets have been sequestered in order to pay for her care and I’ve actually got to cut the check for the nursing home when mom’s check runs out, then I may not want to pay her any money now because I know that once the nursing home’s bill is paid, there will be no money out there for me to inherit," said Larry Minnix, CEO of LeadingAge.
While the potential for conflict of interest amongst heirs can certainly impact an individual’s willingness to pay for his or her elder relative’s care, there are additional arguments against filial responsibility laws. The laws’ harshest critics argue that they smack of government interference into private family life and should be repealed altogether. The most prominent case in this family privacy context is the 2007 case of L.W. v. Skrmetti. In this case, the Tennessee state attorney general attempted to recover $61,000 from the eight adult children of a woman who had experienced a heart attack and had been placed in a nursing home.
Although the state ended up dropping its claims against the children , the court was inclined to rule on family privacy grounds. It stated that the "status of the family as an autonomous unit, free of government interference, is a fundamental American principle" and cautioned that the "implicit right to be free from state interference in family matters must not be diminished by a so-called ‘duty’ imposed by the state."
In Georgia, families do not necessarily have to fear that emergency Medicaid applications or spousal impoverishment nation-wide will result in a loss of the right to make medical decisions. The Georgia statutes state that "no member of an institutionalized person’s immediate family shall lose any right to make medical decisions for such institutionalized person…." However, case law indicates that not all immediate family members are entitled to decide medical decisions.
Currently, the U.S. Supreme Court has granted certiorari to the Story County, Iowa case where a nursing home is pursuing a $200,000 dollar claim or lien against Skye Mangan, the estranged daughter of a former resident. Mangan alleges that she did not pay her mother’s debts while she was living with her because "she didn’t want to be financially responsible for a woman that had abused her."
Mangan is pushing for the Supreme Court to rule on whether state courts are preempted from enforcing filial responsibility laws that are inconsistent with federal Medicaid laws. If the Court decides to address whether the federal anti-lien provision of the Social Security Act preempts the Iowa filial responsibility law under which the state brought its lawsuit, the ruling could impact how Medicaid applicants and their relatives address filial responsibility laws across the country.
Tips for Georgia Residents
Understanding the law regarding filial support in Georgia can be important both for people who expect to receive care as they age, or the families caring for them. Broadly, this statute provides a vehicle for long-term care facilities to demand payment from adult children for their parents’ continuing medical and residential care. In order for the statute to apply in Georgia, a parent must have been a resident of the state for 6 months prior to admission to the facility, and must have been admitted by the adult child (provided the child is already age 18 at the time of admission). If filial support claims were pursued more vigorously, many of Georgia’s nursing homes and other facilities could make up their relative shortfalls.
So what can you do to avoid such claims potentially harming your family? Some possible steps include:
●If the plan is for the adult child to be the payor, then have them pay a specified, consistent sum or percentage to the facility on behalf of their parents
●Communicate clearly with your provider about where the funds will be coming from and how that will be settled once a month in writing
●Document in writing the financial history and arrangements with the adult child so that neither can opportunistically change their story, as the signs are not always apparent until the child is asked to pay
●In the event that there is a potential claim, seek legal advice regarding costs, exemptions, defenses, and enforcement where necessary.
Resources for Georgia Residents
Georgia residents seeking information and support in dealing with issues related to filial responsibility laws may turn to several resources. Legal aid organizations such as the Georgia Legal Services Program can provide information about familial obligations in Georgia, as well as resources for seniors and other legal matters. Their Aurora Advocacy Center offers a comprehensive database of advocates statewide. Elder care resources offered by government organizations do not usually contain information on filial responsibility in Georgia, but they offer general guidance on issues affecting the elderly . Federal organizations such as the Administration for Community Living can connect you with local services. The Georgia Department of Human Services’ Aging Services Division is dedicated to enhancing the lives of seniors and provides much information on health and well-being for older Georgians. Its many local contacts can direct you to services in your community.
While research into the existence and enforcement of filial responsibility law in Georgia may be disheartening, there are resources available. Information on consequences for patients and families deeply involved in the care of an aging person should not cause any additional distress.