A conservative policy group has released an issue brief proposing that states begin enforcing filial responsibility laws in order to reduce long-term care costs. Thirty states, including Ohio, have filial responsibility laws that require adult children to care for their indigent parents. The National Center for Policy Analysis (NCPA) claims that if these statutes are enforced, adult children would have to reimburse the state programs that provided care for their indigent parents.
Filial responsibility laws have traditionally not been enforced, possibly because federal law prohibits state Medicaid programs from looking at the finances of anyone other than the applicant or the applicant's spouse for eligibility purposes. There is, however, no such restriction in resource recovery, the statutory right of a state to recover assets after the death of a Medicaid beneficiary.
The NCPA, a group whose goal is to develop and promote private alternatives to government regulation and control, cites a 1983 report by the Health Care Financing Administration that says enforcing these statutes would have reduced Medicaid long-term care spending by $25 million, and argues that today the figure would be much higher.
Of course, the implications of enforcement of filial responsibility for seniors and their families are complex, but deserve some consideration in day-to-day estate planning. One can easily imagine a future in which the states routinely sue children in order to recover amounts paid for their parent's long-term care, with children then being forced to apportion these costs among themselves, sometimes through legal action between and among them. Whether these collections will and must involve the probate court, and whether avoiding probate in the first instance will discourage or prevent these actions remains to be seen. Regardless, asset protection planning finds one more threat among those justifying and supporting such planning.
To read the full brief, click here.
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