Should Adult Children be Responsible for the Care of their Elderly Parents – Yes

To fully understand the concept of requiring adult children to care for their parents requires an understanding of the beginnings of filial responsibility laws and their historical ebb and flow in the United States.
The legal duties underlying the relationship between parents and minor children have been quite settled for some time. However, the reciprocal legal duties, known as filial responsibility laws, of the relationship between adult children and their parents are far from settled. They have troubled theologians, philosophers, and legislators for most of the world’s recorded history. Aristotle believed a duty existed on the part of adult children towards their parents based on a theory of reciprocity. Traces of filial responsibility laws can be seen across the teachings of many religions from around the world, including Christianity, Judaism, Islam, Hinduism, Buddhism, and even Confucianism.
Filial responsibility remained solely a moral duty before it finally began to make its way into various statutes. The origins of our modern filial responsibility laws can be traced to Roman law. In 1601, England enacted the Poor Relief Act of 1601, requiring the “father and grandfather and the mother and grandmother, and the children of every poor, blind, lame, and impotent person” to support that indigent person as much as possible. During colonization, these statutes made their way to the United States. It became the backbone of early welfare systems and the later filial legislation that would be passed in the United States.
When Medicaid originally came on the scene in the twentieth-century, it was viewed as an alternative to requiring family members to support each other. Individuals favored the new Medicaid program because that took the responsibility off them and put it on the federal government. More and more dependence was put on the government. As the baby boomer generation failed to adequately provide for themselves in their elder years, the financial burden became greater and greater for the federal government. Medicaid planning began to be used by families as a way to protect inheritances at the expense of the government. Some elderly choose to transfer some of their assets to other family members in order to fall within the parameters of eligibility for Medicaid. Others convert their assets from the types that do weigh on the eligibility for Medicaid to the types that are not considered in determining eligibility. The result of these various types of Medicaid planning is that the children of the elderly reap the benefits of the assets while the government is left with the financial burden that is created. In 2004 a total of $158.2 billion was spent on long-term care in the United States. Of that total, $66.44 billion came from Medicaid. This is up from $59.9 billion in 2002. While these numbers continue to rise, Congress has been looking for ways to cut back on spending. In February 2006, Congress passed the Deficit Reduction Act of 2005. As part of this Act, Medicaid spending is to be lowered by $11.5 billion over the next five years. Increased reliability on a program facing spending cutbacks creates a gap that must be bridged somehow. Filial responsibility laws could help span that gap. Estimates show that efficient and consistent enforcement of filial responsibility laws could reduce public spending by as much as 11% to 30%.
Medicaid costs could be lowered approximately an additional $20 billion annually if those elderly who could afford to finance their own long-term care would properly plan to do so. If filial responsibility laws were enforced in the various states, those individuals who try to transfer or transform their assets to family members will no longer have the incentive to do so. Those elderly who transfer assets to their children in order to be eligible for Medicaid would only make those children that much more liable for support under the filial responsibility laws. Those assets transferred to the children would then be returned to the parents. That would leave them ineligible for Medicaid, and thus less of a financial burden to the public.
Enforcement of filial responsibility laws would also work to deter some elderly from applying for public assistance at all, further lessening the financial burden to the public. If they were to apply for public assistance when they have family members who can help support them, applying would just create a burden on their children. The result is to keep those elderly who do not need outside assistance from ever seeking it at all. This creates the incentive for the children to be proactive in helping their parents with their finances and supervising them in the use and conservation of their assets. The ultimate result is less of a burden on a struggling government program.
Outside of the numbers, the family is simply the appropriate place to seek support for the elderly, not the government. Having this responsibility can be a valuable tool for teaching children the notions of honor, gratitude, loyalty, and unselfishness. As they learn these values from within the family structure, they will mirror them outside the family towards everyone.
Filial responsibility laws also improve the familial relationships within the family members. Filial laws encourage adult children to form and maintain a relationship with their parents, fostering warmth and companionship within the family. A positive family environment can support an elder’s autonomy by reaffirming their place and importance within the family structure. Government-provided programs cannot provide these sorts of intangibles to the family as a whole.
There is also the contractual approach to filial responsibility laws. An implicit contract is formed between parent and child when the parent gives birth to child. The parents fulfill their part of the contract as they nurture and support the child from infancy until adulthood. Once the parents reach their elder years, it becomes time for the child to perform his end of the contract. If the child is permitted to escape liability under the contract and the elder parents turn to the government for financial support in the elder years, then the child is unjustly enriched while the government is left honoring a contract to which it never agreed.
Social Security has also been a launchpad for the debate over filial responsibility laws. For the last seventy years, Social Security has been a major source of financial support for retired workers in the United States. However, the Social Security program in place now faces serious problems in the near future. While the Social Security system should continue to bring in more in revenue than it has expenditures through 2013, a look at the bigger picture shows that over the next seventy-five years Social Security will suffer a shortfall of approximately $3 trillion. If the current trend in Social Security continues, a majority of retired workers will need that financial support to come from somewhere. Medicaid certainly cannot handle these additional people as it faces its own financial difficulties. If filial responsibility laws are enacted and consistently enforced, by the time the Social Security program hits its troubled times, the effects of the filial laws would be in full force, and the strengthened family bonds of care and support would help to cushion the resulting financial setback.
Filial responsibility laws are not without their flaws. Not all states have such laws, and they are non-uniform among the states that do have them. Also, currently filial responsibility laws often produce counterintuitive results. It leaves parents suing children for support or children being imprisoned for lack of support, both of which have negative effects on familial relationships.
Changing the focus of filial responsibility laws, however, can alleviate these problems. Filial responsibility laws could focus on giving incentives, instead of punishments. These incentives could take various forms, including a special tax break or a special tax benefit for those people who provide support for their indigent parents or for institutions who are willing to work with the family as a whole in supplying care and support for indigent elderly. This would help lessen the costs of administering these programs. The family would be given the first opportunity to stand in the gap and support the indigent elderly, but the government would be there to catch those who still fall through the cracks.
An incentive approach would also help cultivate the strong familial bonds that proponents seek from the current filial responsibility laws. While the filial laws may put families litigation, or worse prison, or may nurture resentment within the family, incentives would instead create a positive atmosphere around supporting another family member. No one would be forced to support the other, only encouraged to and rewarded when they do. For those who choose not to support their indigent elderly, governmental programs would still be there to support those who still need help.
A rewards and incentives based approach would create a dual layer of support for the indigent elderly while greatly reducing the burdens now placed on the government, which will help our national economy as a whole.

Bibliography
1. Seymour Moskowitz, 9 J.L. & Pol’y 709 (2001).
2. Aristotle, Nicomachean Ethics 1163b, 244 (Martin Ostwald ed. And trans., 1962).
3. Edward N. Polisher, Filial Responsibility of Children to Support Aging Parents as a Legal Obligation, 68 P A Bar Assn. Quarterly 66 (1997).
4. Matthew Pakula, The Legal Responsibility of Adult Children to Care for Indigent Parents 1, (2005).
5. Catherine Byrd, Relative Responsibility Extended: Requirement of Adult Children to Pay for Their Indigent Parent’s Medical Neds, 22 Fam. L.Q. 87, 88 (1988).
6. Jacobus tenBroek, California’s Dual System of Family Law: Its Origin, Development, and Present Status, 16 Stan. L. Rev. 257 (1964).
7. Kaiser Commission on Medicaid Facts: Medicaid and the Uninsured, July 2006 (November 2006), http://www.kff.org/medicaid/upload/Medicaid-and-Long-Term-Care-Services-PDF.pdf.
8. Lee E. Teitelbaum, Intergenerational Responsibility and Family Obligation: On Sharing, 1992 Utah L. Rev. 765, 782.
9. Marshall B. Kapp, Who’s the Parent Here? The Family’s Impact on the Autonomy of Older Person, 41 Emory L.J. 773, 795 (1992).