Thursday, December 21, 2017

Filial Friday: Can Americans be Compelled by Germany to Contribute to Costs for a Parent's Care in Germany?

It has been awhile since I've written a "Filial Friday" post. Perhaps any question about legal obligations for family members to pay for care of another is an unfair topic during the holiday season.  A bit too downbeat, yes?  But, in fairness it is a topic that has reemerged in my "inbox," as I've recently received two communications from American adult children of biological parents in Germany.  In each instance, the reason is that Germany authorities are writing to American citizens to notify them that an aging German parent is or may be in need of "social welfare benefits" in Germany.  As one demand letter puts it:

"The above person is your mother.  According to [the Germany Civil Code] you have a basic obligation to pay maintenance for your mother.  According to Section 94 of the [Social Security Code] the maintenance obligations of a person eligible for benefits are passed on to [the Germany regional authorities] up to the amount of the expenses we incur in so far as this is not excluded for legal reasons."

In other words, it appears the German social service agency is saying that if it is called upon to incur expenses for welfare of a Germany citizen, it has the legal authority to seek contribution or reimbursement from the family members identified in German statutory law as having a maintenance obligation, including any children living in other countries.

As readers of this Blog know, I have a long-standing interest in such filial support claims, in large part because I live and work in Pennsylvania, the U.S. state that most frequently enforces a colonial-era law, permitting third-party providers of care in certain instances to compel adult children to pay reimbursement for costs of care, usually nursing home care.  The 2012 Pennsylvania Superior Court decision in Health Care & Retirement Corporation of America v. Pittas, where an adult son was found to be liable for more than $90,000 for his mother's nursing home care, is one of the most dramatic modern example of domestic enforcement in the U.S.   

The letters from Germany undoubtedly surprise, and perhaps frighten, the American children who have probably never heard of such a claim coming from public authorities.  (In the U.S., in the modern era the occasional claim usually comes from a nursing home that isn't being paid for long-term care by private or public means, and the claims are not coming from public agencies.)

The German letters typically include a demand for detailed financial information from the "obligated" family member.  Interestingly, the forms recently sent by the Germany authorities are in English, thus suggesting the Germans are getting quite sophisticated about out-of-country claims.  

The requested information includes amount and type of income, including "earned and unearned" income; whether the individual is married or is in a registered civil partnership and the amount of income each individual earns; how much the individual pays in taxes, health insurance, and pension contributions; and what expenses the individual has for certain items such as working materials, professional associations, and public transport.  

One question explains, "Where appropriate, accommodation costs may be included in the total sum of maintenance costs."  The American family member is then provided a place to list "monthly rent, excluding bills and heating costs."  But, the "obligated" family member is also told, "If you are a property owner, please complete [an attached sheet]."  There is a place on the German form to describe "type of assets {cash assets, savings, capital, land or property, etc." owned by "you or your spouse [or] partner in a registered civil partnership." 

In the most recent instance I've reviewed, the package from the Germany authorities includes "excerpts" of relevant German law, translated into English.  

The authorities take the position that even if the American child has a defense to payment of all or a part of the parent's maintenance needs, such as an "undue hardship" defense, the German authorities are entitled to the information on assets and income in order for them to determine whether there will be a proportionate obligation of reimbursement.  

I've reviewed and written about other filial support claims from Germany to American adult children. There is much to consider about such claims (and the defenses available) under German law.  At a minimum, it seems that we need to take a hard look at whether U.S. would or should permit or support "enforcement" of such an international cross-border claim.  

It is also a reminder to me, as I review the family histories in these two most recent cases, that family dynamics are often complicated, and while many (most?) families voluntarily do what they can to support aging family members, such claims by "foreign governmental authority" are rarely viewed with favor.   

http://lawprofessors.typepad.com/elder_law/2017/12/filial-friday-can-americans-be-compelled-by-germany-to-contribute-to-costs-for-a-parents-care-in-ger.html

Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, International, Retirement | Permalink

Comments

This interesting article describes a reach out from one country to the adult children in another country, in this case Germany to adult children in the USA. I’ve long wondered about intra-USA efforts. In other words, could a Pennsylvania entity caring for an elderly patient/resident reach over its state line? For example, if a Pennsylvania nursing home requests filial support from an adult child in New Jersey – what happens? What could happen?

Posted by: Jennifer Young | Dec 22, 2017 5:47:56 AM

Thanks for following up on this topic. It is of great interest.

Posted by: Tom N | Dec 22, 2017 8:38:07 AM

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