Sunday, February 9, 2014

Am I My Brother's (and My Parent's) Keeper, Even If Neither Wants Me?

Recently an individual contacted me with a fact pattern to present on our Blog, a variation on what we've written about in the past.  Here are the basics.  I've assigned some gender roles to make the fact pattern easier to follow: 

The daughter of an older parent wants to know whether she has a legal "duty" to interfere with her brother's role in the life of their parent, where it appears the brother is failing to either apply for Medicaid or otherwise pay the parent's rehabilitation facility.  The parent is not unhappy with the son's actions (or rather, inaction), and in fact declined to give power of attorney to the daughter, even when told of a likely "eviction" for nonpayment of the bill. The parent has mostly recovered from the medical crisis that triggered the need for care -- and just wants to go home. Parent has made it clear to daughter that her help is "unnecessary."

The complication is the size of the unpaid bill, more than $100,000.  Apparently the care facility, approved to receive Medicare and Medicaid, is now demanding that the daughter pay the bill.   Apparently no one applied for Medicaid and it is unclear whether Medicare ever paid.  Daughter doesn't know much about her parent's income, but assumes it is limited and probably the only asset is a house, where the widowed parent lives when not in a hospital or in a care facility, and where the brother also resides.

The rehab facility is in Pennsylvania, home to "filial support" laws that have been enforced against adult children, with or without evidence of fault on the part of the child who is sued. Under Pennsylvania's law, those with statutory standing to pursue a support claim include a "person" who has provided care or maintenance, and that has been interpreted to include residential care facilities.  We've discussed tough filial support decisions before on this Blog, including Health Care & Retirement Corp. of America, v. Pittas, (Pa. Super. Ct. 2012).

Thus, a lawyer is probably going to have to break the bad news to the daughter that the facility arguably has a potentially viable claim under 23 Pa.C.S.A. Section 4603.   Daughter would appear to have some equitable defenses, including laches, but nothing that is expressly provided in the Pennsylvania statute.  But who can afford to defend such a case?  The facility appears to be  using the child's potential liability under filial support laws to insist the daughter take action, either to obtain a guardianship or other order that would permit her (force her?) to apply for Medicaid -- and the threat may work. The longer she waits, the tougher it will be to get sufficient retroactive coverage.  But in this instance, it is not clear whether the parent's capacity is impaired, or whether the parent is simply following a long pattern, even if unwise, of preferring one child's "help" over the other. 

The moral question of "Am I my brother's keeper," becomes a Family Keeper's Dilemma, when you add in the third part of the triangle, a parent in need of care or protection, against their will.  And the moral question becomes a legal liability question, when a filial support law that permits third-party suits is involved. 

For another Family Keeper's Dilemma, see the Washington Court of Appeals' January 14 decision, "published in part," in the case of In re Knight, addressing the level of proof required for one son to obtain a Vulnerable Adult Protection Order, to prevent his brother, with a mental health history and a criminal record, from continuing to live with or near their 83-year-old mother.  The mother opposed the protection order.    

http://lawprofessors.typepad.com/elder_law/2014/02/am-i-my-brothers-and-my-parents-keeper-even-if-neither-wants-me.html

Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Housing, Medicaid, State Cases | Permalink

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