Deborah Elkins//February 17, 2015
Deborah Elkins//February 17, 2015//
It is commonplace for courts to order parents to pay support for minor children. It may be less well known that courts in Virginia can order adult children to provide financial support for their aged parents.
Virginia, like many states, has a “filial support” statute that says the support obligation is a two-way street.
Reports of recent cases in Virginia suggest the parental support statute is more often invoked by one sibling against another, in an effort to even out contributions. Sibling rivalry can survive into, or first surface in, adulthood as the children try to figure out “what to do about mom.”
On the books since 1920, the statute has been “totally dormant,” but “it may be revived,” according to McLean lawyer Yahne Miorini, president of the Virginia Academy of Elder Law Attorneys.
An aging population, the expense of long-term care and the increased complexity of qualifying for Medicaid support all have elderly clients and caregivers asking their lawyers where they can turn. The statute, Virginia Code § 20-88, is drawing new attention.
The parental support statute will strike fear in the hearts of baby boomers’ children, according to Virginia Beach lawyer Patrick Maurer, who successfully defended a § 20-88 support petition last year.
Section 20-88 says that children over age 18 can be required to contribute to support of their parents, when the adult child has “sufficient earning capacity or income,” after “reasonably” providing for her own “immediate family,” and the parent is in “necessitous circumstances.”
The law calls for criminal penalties of a jail term of up to 12 months or a $500 fine for a misdemeanor violation of the parental support statute.
The “problem is that it’s out there,” but not used enough for there to be guidance, according to Annandale lawyer James McConville, an elder law attorney. “It’s on the books, you can read it. It has some scary features to it.”
The little-used statute has “a lot of moving parts,” says Lynchburg elder law attorney Ron Feinman.
Courts have not carved out standards for important elements of the statute. Is “necessitous circumstances” something more than meeting a federal poverty standard? What is “sufficient earning capacity” for the adult child, and how can a fact finder determine what is a “reasonable” provision for the adult child’s “immediate family.”
The statute provides for joint and several liability among adult children, requiring a court to apportion responsibility. Today’s families are complicated assemblages. Add stepparents and stepchildren to the mix and the dynamics and duties can change.
The statutory time frame looks at the parent being “then and there in necessitous circumstances.” If an elderly parent moves in and out of a nursing home, you can have a material change in circumstances, as courts recognize with child and spousal support, Feinman said.
When a court finds “necessitous circumstances,” the adult children can defend against the petition by showing “substantial evidence of desertion, neglect, abuse or willful failure to support.”
Judges have a great deal of discretion in hearing these cases, lawyers say. With appeal to the circuit court, the next judge to hear the case may see things differently.
Because parental support petitions are filed in the juvenile and domestic relations courts – courts not of record – it’s hard to track actual activity, attorneys say. And because elder law attorneys are well versed in alternatives, they are not likely to turn to the parental support statute even when a client has heard about the provision and makes inquiry.
Miorini said that when one potential client asked about the statute, she could not offer much encouragement. If an aging parent already has financial difficulties, it may not be cost-effective to file a petition. In her practice, adult children who have the resources generally step up if and when they can. If they don’t have the means, there is no reason to file a petition.
Sibling v. sibling
The existing legal framework for parental support cases is meager.
A 1938 Supreme Court of Virginia decision recognized that a predecessor statute could create a legal obligation, in a case considering whether an adult brother provided consideration when he assigned stock to his sister in exchange for her promise to care for their aging mother.
That case, Mitchell-Powers Hardware Co. v. Eaton, also suggests the level of support and maintenance required is something more than indigency, and could allow a court to consider the “situation, mode of life and condition of the persons concerned.”
In a 1978 decision by an Arlington County Circuit Court, Peyton v. Peyton, a petitioner sought from his brother one-half the cost of caring for their mother.
The brothers were co-guardians for their mother, who had been in a local nursing home for a “number of years.” The trial court noted she received Social Security, and had some “jewelry, oriental rugs and other property.” He ordered the respondent brother to pay $8,000 for the mother’s care and maintenance for six annual accounting periods, as well as a monthly stipend of $150.
It was a sister act when Richmond elder law attorney Kathy Pryor used the parental support statute in Henrico in 1998. The 97-year-old mother had been living with one daughter for 40 years when Pryor filed the petition against the sister. The mother, who had physical and mental health problems, had $19,000 in nursing home expenses. She had to leave a nursing home because of behavioral issues, and the petitioner was spending $1,000 per month for nursing assistance.
The parties settled the matter when the respondent sister paid $10,000 and agreed to contribute one-half of the ongoing monthly care, Pryor said. The Henrico County J&DR court dismissed the petition.
It was sibling v. sibling in a case filed in 2012 in Virginia Beach, according to Maurer. His client was a retired nurse, facing a petition filed by her brother, a retired lawyer, on behalf of their mother.
Their parents had lived in Florida, but when the father died in 2006, the mother moved into the Atlantic Shores, a continuing-care retirement community in Virginia Beach. The brother, who moved to Virginia Beach some time later, had power of attorney. When he saw the mother’s funds were running low, he filed the petition against his sister, on behalf of their mother.
According to Maurer’s account of the case, the brother eventually hired another lawyer for the mother.
The mother was nearly 90 years old. Her petition alleged the monthly bill for the retirement community took most of her income – social security and her husband’s Navy retirement – and she had bills on top of that. She had “some medical challenges” and had made use of the “care component” at Atlantic Shores, Maurer said. “She was definitely running a deficit.”
At that time, “neither party chose to have mom come live with them.”
The mother had traveled to California, Hawaii and Las Vegas, Maurer said. The judge asked hypothetically whether a parent could travel all over the world, spend down their money, then come to the kids for support.
Ultimately, the Virginia Beach J&DR court denied the petition, saying the mother had not shown “necessitous circumstances,” Maurer said.
With the statute “being as confusing as it is, the case law is really not out there on ‘necessitous circumstances,’” Maurer said. You “have to carve it up the best you can.”
Maurer’s case wrapped up in 2014. The mother appealed, but later withdrew her appeal before the circuit court could hear the matter.
Another parental support case is pending before the Virginia Beach Circuit Court.
Glenn Johnson filed petitions under Code § 20-88 against his eight stepchildren seeking contributions to the support of their mother. Judge Randall Blow, of the Juvenile and Domestic Relations District Court, entered separate orders assigning amounts for each adult child to contribute, according to Virginia Beach lawyer John M. Barrett, who represents Johnson. In its orders in Johnson v. McCracken, the court also found the adult children liable for an arrearage for prior expenses, he said.
Johnson and his wife Ruth are in their 80s, and the adult children range in age from mid-40s to mid-60s, Barrett said. Johnson’s wife of 35 years has been in assisted living for nearly two years, with her expenses running at about $5,500 per month. Barrett said Johnson had mortgaged the couple’s property and sold their stock, prior to filing the support petitions.
The children filed a petition for guardianship of their mother, and the stepfather’s power of attorney was suspended pending resolution of the guardianship proceeding, according to Chesapeake lawyer Clay Macon, who is defending the petitions against the adult children.
The adult children started applying for Medicaid for the mother, but the application could not be completed without the stepfather’s assistance, according to Macon.
“It’s not coincidental that there is a pending guardianship” proceeding, Macon said. That’s “another wrinkle regarding the reason the [parental support] case was brought in the first place,” he said.
Adult children should not necessarily fear exposure to claims and elderly parents don’t have to become desperate, according to elder law specialists.
Planning ahead keeps people out of court, according to Richmond elder law attorney R. Shawn Majette. Although a parent may balk at applying for Medicaid for fear of forfeiting assets, there are many protections for the spouse of someone who needs long-term care.
“We are not always able to choose what we want. We are required to operate under the statute ,” Majette said. “If Medicaid is an available option, you have to pursue Medicaid.” Once a parent qualifies for Medicaid or receives other aid from a government benefits program, it will be very hard to show that person is in “necessitous circumstances,” he said.
Virginia law “expressly permits the state to seek Medicaid reimbursement from adult children to the extent permitted by federal law, but there are no modern cases suggesting that reimbursement has been pursued by state authorities,” according to a 2013 survey of filial support statutes by Katherine C. Pearson, a law professor at the Pennsylvania State University School of Law.
Pearson reported that parental support statutes have been used in Pennsylvania and South Dakota to “compel payment or cooperation by adult children to cover” nursing home care. But apparently that has not been tried in Virginia.
“I don’t think it’s a reality in Virginia. It’s not done on the private side,” said Alexandria lawyer Ronald Ray, who represents nursing homes. “Any time I’ve seen it used” by a non-family member “it’s been the commonwealth enforcing it against people,” for instance, when someone is incapacitated and receiving public assistance, even though that person has assets.
The Virginia Department of Medical Assistance Services, which administers the Medicaid program, is authorized to make claims on estates of persons whose long-term care has been funded by Medicaid. A 2012 report to the Virginia Senate finance committee said a 2003 survey of all states showed Virginia had collected .08 percent of Medicaid long-term care costs, or an average of $4,207 per estate, compared with an average state recovery of .5 percent of costs, or an average of $8,116 per estate.