Monday, October 7, 2013
As our readers might know, I have long been a student of "filial support" laws in the U.S. and around the world. As I concluded in an article on Filial Support Laws in the Modern Era for the University of Illinois' Elder Law Journal, there is a real question about whether filial support laws are serving appropriate public policy goals with respect to long-term care for older adults.
Whatever the widsom -- or practical need -- for enforcement, there is fresh evidence, this time from the Supreme Court of North Dakota, that states are willing to to pit family members against each other in allocating costs for nursing home care.
The latest decision is Four Season's Healthcare Center, Inc. v. Linderkamp, __ N.W. 2d ___ (2013). On September 4, 2013, the N.D. Supreme Court ruled:
- it was not error for the trial court to find, after a bench trial, that there was "no credible evidence" of an oral agreement between the father and his adult son, an agreement that would have explained the transfer of the parents' property as payment for improvements made to the land by the son, and
- there was evidence to support a finding that the transfer was made at a time when there was a reasonable belief the parents would be entering a nursing home, unable to pay privately for their care costs, and
- therefore the evidence supported a conclusion that the conveyance was void under the state's fraudulent conveyance law. Thus the Supreme Court affirmed the trial court's decision on the son's liability to the nursing home for his parents' care costs.
BUT, the Court also remanded the case for further proceedings on the defendant/son's filial support claim against his siblings, ruling the son had the right to seek contribution to the costs of care for his parents at the nusing home under North Dakota's version of a filial support law, N.D. Cent. Code Section 14-09-10. Here's a key sentence: "We conclude the [trial] court erred in holding Elden Linderkamp personally liable in the amount of $104,276.62 for his parents' unpaid nursing home debt without deciding the other children's potential liability under that statute."
I guess it won't be difficult to guess who may not be inviting whom to share dinner next Thanksgiving Day in that family.