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FILIAL RESPONSIBILITY IN MONTANA

Discussion in 'Other Family Law Matters' started by JRemington, Feb 15, 2021.

  1. JRemington

    JRemington Law Topic Starter New Member

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    Hi all,

    I understand this forum is not a place for ironclad legal advice, but I'm asking this question as a starting point ahead of scheduling a live meeting with a local attorney. I'd like some perspective on filial responsibility laws, situations in which they might be enforced, and how to avoid incurring the costs of supporting an estranged parent. Your thoughts will help shape my meeting with an attorney by giving me pointers on things to think about, questions to ask, or concerns I should raise, as this is all new territory for me and I am uneducated in legal matters.

    First, a small preface for context: I understand both the moral and potential legal obligation of children with means to support their parents in their waning years. Both my wife and I plan to support and care for our parents (her mother and father, and my mother and stepfather) in any way needed as they enter their senior years, including financially if necessary. We see it as the least we can do for those who loved and nurtured us.

    However, my situation with my biological father is quite different. He was an abusive parent who caused great distress, emotional, and financial harm to me, my sister, and our mother. Throughout my twenties and early 30s, I've made numerous attempts to look for ways to reconcile and repair the relationship, but after marrying my wife, made the difficult but necessary decision to end the relationship fully and cut him out of our lives. Although he has never been diagnosed, he exhibits traits of narcissistic personality disorder and potentially sociopathic tendencies. I have been in treatment for PTSD and major depressive disorder (all documented in writing by a qualified psychiatrist) stemming from his behaviors toward me.

    I have not seen this man in many years, and arguably have not had a meaningful relationship with him since my early twenties. He is financially broke and in somewhat poor health, although still living independently. Should an emergency arise or he be in need of care, what do I need to do to protect myself, my wife, and my family from being obligated to shoulder his expenses? I refuse, under any circumstances, to pay even a dime toward the expenses of somewhat who abused me and whose actions still haunt my life. I live in MT and so does my father.

    There are a few factors that concern me, and I am curious to hear informed opinions before I explore legal options. These are:

    1.) My father is very poor, living in low-income housing and likely without insurance. This is due largely to his own decisions not to seek steady employment and to spend frivolously. My wife and I are not wealthy, but we earn decent middle-class incomes (combined household income is just over $160k) and have the financial means of supporting his expenses. Could this make us liable for his care?

    2.) Although I have not seen my father in person in more than five years, he from to time time emails me. His emails are innocuous and somewhat cordial, and in the interest of "keeping the peace," I usually respond with very brief but cordial notes (i.e., "Thanks for writing. I'm glad you're doing well. Take care." Nothing overly personal.) He has stated in one email that he feels I've "disowned" him, but the emails alone do not otherwise demonstrate any type of animosity between us or desire on my part not to receive contact. Do I need to expressly cut off all contact or request in writing that he not contact me in order to demonstrate legally that I do not have a relationship with this man?

    3.) This is the strangest factor and the one most concerning to me: in my early twenties, I was manipulated (in my view) into providing him upward of $40,000 in student loan funds taken out in my name that were used to pay his personal living expenses. I do not believe I have legal standing to contest these loans or sue him for the amount, as they were taken by my consent and willingly given to him (albeit, under duress, but I take full responsibility).

    At the time, he verbally promised to pay back these loans in full. To his credit, he has over the past five+ years made payments on a monthly that are sent directly to the loan servicer, not to my personal accounts. In effect, he is "paying off" student loans that I bear responsibility for, albeit in small increments. Could this be used as evidence that I am receiving money from him, or that he is financially "supporting" me? Should I consider asking him to cease repayment? I do not want to trade the temporary, minor benefit of his monthly repayments for the potentially greater burden of having to pay for his care in later life.

    4.) As with many domestic or family abuse situations, I have no hard proof that he ever abused me or any other family members. I do have witnesses in the form of my mother and sister who can testify under oath to his behavior. I also have written documentation of my own PTSD due to his behaviors from a qualified physician. What happens if, like most narcissists, he simply says I'm lying? In full disclosure, to this day he strongly believes he is a good father and denies any abuse occurred. He in fact thinks I, my mother, and sister are "crazy" (which is typical gaslighting behavior).



    Thanks for any insights you can provide. I know this question (i.e., "how to avoid caring for a parent") is a harsh one, but I hope the context I've shared makes clear my intent and why I feel the need to go in this direction.
     
  2. flyingron

    flyingron Well-Known Member

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    The rules come from the MCA 40-6-214:

    Reciprocal Duties Of Parents And Children In Maintaining Each Other
    40-6-214. Reciprocal duties of parents and children in maintaining each other. It is the duty of the father, the mother, and the children of any poor person who is unable to provide self-maintenance by work to maintain that person to the extent of their ability. The promise of an adult child to pay for necessaries previously furnished to that parent is binding.

    and 40-6-301, 302, 303:


    Duty Of Child To Support Indigent Parents
    40-6-301. Duty of child to support indigent parents. (1) It is the duty of every adult child, having the financial ability, to furnish and provide necessary food, clothing, shelter, medical attendance, and burial, entombment, or cremation costs for an indigent parent, unless, in the judgment of the court or jury, the child is excused by reason of intemperance, indolence, immorality, or profligacy of the parent.

    (2) If a county pays for burial, entombment, or cremation costs under 53-3-116, the county may seek reimbursement under this part, if applicable.

    Failure To Support -- Misdemeanor
    40-6-302. Failure to support -- misdemeanor. Any person violating the provisions of 40-6-301 shall be deemed guilty of a misdemeanor.

    Civil Action To Enforce Duty To Support
    40-6-303. Civil action to enforce duty to support. A civil suit may be instituted and maintained for the enforcement of the provisions of 40-6-301 by any such child, where there is more than one adult child, or by the parent to whom such support is due or by the county attorney, and in case there is more than one such child, the court or the jury upon the hearing is authorized and empowered to apportion the expenses of such support between the adult children, and the court shall enter judgment in accordance with such finding and apportionment; provided, that such civil action shall not be construed as barring the arrest and conviction of such person for misdemeanor.
     
  3. flyingron

    flyingron Well-Known Member

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    Getting that out of the way, understand that past abuses don't get you out of the filial responsibility. Nor to previous promises to pay. His squandering and refusing to work (if he's able) are things that can invalidate your responsibility.

    The question is what needs your father isn't being met. There are limits based on court cases (you're not obliged to pay for nursing care, for example). Just because he is "poor" doesn't mean you owe him anything unless his shelter/food/medical needs aren't being met.
     
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  4. army judge

    army judge Super Moderator

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    Generally, no adult can be held financially responsible for the debts or care of any other adult.

    The GENERAL exception to that sentence would be the legal duty of one spouse to support the other spouse as long as the parties remain married.

    I suggest you not worry about "legal this" or "legal that" knowledge acquired BEFORE you meet with ANY prospective attorney.

    Most people don't seek such knowledge when meeting with a physician about an impending medical diagnosis.

    Some people do seek second and third opinions from other medical practitioners SUBSEQUENT to learning what the first physician pronounced.

    I also suggest not to worry about what may have happened to you during your childhood (or even adulthood) at the hands of the biological father for the purposes of any looming legal matters.

    For all you know, the person alleged to be your biological father MIGHT NOT be the male progenitor UNLESS proper genetic testing has been pursued and a determination of paternity pronounced.

    My suggestion to you (not a direction, merely a suggestion for YOU to consider) is meet with the attorney and have a free and open discussion about the things that concern or confuse you.

    My final admonishment is about written laws.

    Again, you're going to have a discussion with a lawyer.

    The discussion will serve two distinct purposes.

    One allows you to interview the lawyer and determine of you wish to retain her.his services.

    The other is to gather useful nuggets about legal issues that are unclear.

    Once the initial discussion has been had, you might wish to arrange one or two more to compare and contrast what you've learned.

    You will also be able to determine which lawyer you believe is best positioned and qualified to represent YOU as YOUR attorney.

    Good luck, and if time permits, return and inform us as to how the meeting(s) went.
     
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  5. JRemington

    JRemington Law Topic Starter New Member

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    Thank you. This is helpful perspective.
     
  6. JRemington

    JRemington Law Topic Starter New Member

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    Thank you for your helpful and informative post. I'm looking into local attorneys today and will report back on my consultation(s). One thing I'll be curious to find out is whether there is really anything I need to do right now: there are no cases against me and I don't know that my father ever will pursue this. I just want to make sure that I have done all I can to prevent situations from arising in the future.
     
  7. flyingron

    flyingron Well-Known Member

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    Untrue in Montana and a handful of other states. See the laws I posted above.
     
  8. army judge

    army judge Super Moderator

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    I've read it, but there are many ways for a person to address those laws.

    WHAT IS FILIAL RESPONSIBILITY?
    Filial Responsibility laws and statutes were created in some states in order to pass the obligation of paying for the basic care and needs of an aging parent to their adult children. This law dates back to the early 1600’s English law known as the Elizabethan Poor Law. These Poor Laws as they were known, were created in a time of economic depression. The government raised taxes to help pay for the relief of the elderly, handicap and destitute. They also stated that children were responsible for the care of their unemployed parents and grandparents. It is said that the American colonies modeled their public assistance on the Elizabethan Poor Law.

    According to the Miami Center for Estate Planning and Family Law Filial Responsibility Laws | Miami FL Estate Planning & Elder Law Blog , eleven out of the thirty states have never enforced their filial responsibility laws and most states rarely put them into place.


    Each state provides guidelines to the court on how to rule according to a variety of factors such as your financial state, if you have a dependent you are paying for in college, your personal needs for retirement and so on. As previously mentioned, each state’s filial law varies widely.

    Filial responsibility laws and their enforcement vary greatly from state to state. Eleven states have never enforced their laws, and most other states rarely enforce the laws. Currently, Pennsylvania is the only state to aggressively enforce its filial responsibility laws.

    For instance, Arkansas only requires the child to pay for their parent’s mental health care expenses, and not those expenses associated with services given in nursing homes or hospitals. In Connecticut, adult children are only responsible for paying for parents who are 65 or younger. Nevada only enforces the filial responsibility law if there is a written promise to pay for the parent by the child. Pennsylvania is the only state on the list that currently enforces the law aggressively.

    In one such case in Pennsylvania, a son was on the hook for $92,943 in unpaid nursing home bills accumulated from his ailing mother. The nursing home sued the son when the mother left the country and moved to Greece, leaving her nursing home bills behind. According to www.Kedavislaw.com, the case went on for several years. Mr. Pittas initially won in arbitration in 2008, however, the nursing home appealed to a Pennsylvania state court. The judge ruled in the nursing facilities favor. The appellate panel requested that Mr. Pittas pay the facility the amount due. The supreme court denied Mr. Pittas appeal and the court entered its final judgement against Mr. Pittas in 2011. This is an extreme case of the filial responsibility law in action.

    Although these filial laws vary from state to state, in general, the following is what you need to know if this law may apply to you. Remember, you should always seek legal advice from an attorney with experience in filial responsibility law to help you properly assess your situation.

    VERY BROADLY, THE FOLLOWING CRITERIA NEEDS TO BE MET IN ORDER FOR FILIAL RESPONSIBILITY LAWS TO APPLY:
    Your parent is accepting financial support from the state government.
    Your parent has a medical or nursing home bill, acquired in the state which has a filial responsibility law, which they cannot pay.
    Your parent is considered indigent, meaning the cost of their care is exceeding their Social Security benefits.
    Your parent does not qualify for Medicaid in the United States, which would typically be used to cover such expenses.
    The caregiver has reason to believe the patient’s child has the money to pay the bill and chooses to sue the child for what is owed (you must prove that you do not have the ability to pay).

    If the parent has not abandoned the child when they were a minor for a period of years (varies by state).

    If you are sued and a court of law holds you accountable for the bills, you risk stiff penalties for not paying them; including possible jail time. In some states, judges have the discretion to garnish your wages or place a lien on any property you own in an attempt to collect the money. Having either of those things happen to you will result in your credit rating being lowered.

    The positive news is that judges also have the discretion over deciding to enforce filial responsibility laws. As mentioned above, most states throughout the United States are very lenient with these laws and may not fully enforce them, if at all. If you can demonstrate that you do not have the financial means to pay for your parent’s bills, the court system is generally not inclined to impoverish you by making you responsible for them. Additionally, if you can show that you have significant family expenses you are dealing with otherwise, such as medical bills of your own, or college tuition for your dependent, a judge may exempt you from having to pay your parent’s debts as well.

    Finally, if you can demonstrate that your parent abused or abandoned you as a child, the law typically considers that individual to be undeserving of your support. Some states do require a certain number of years of abandonment prior to age 18 in order for the abandonment rule to apply.

    If you live in one of the states mentioned and fear that you may be sued under filial responsibility laws, your best course of action is to seek out an elder care attorney in your state for further advice. Alternately, you may wish to consult with an elder care attorney to discuss estate planning if you would like to put a strategy in place to make sure your parent will be provided for in the event they need long term care (such as nursing home care or assisted living) or in-home caregiving in the future.

    Does State Law Require You to Support Your Aging Parent?
     
  9. adjusterjack

    adjusterjack Super Moderator

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    Nothing you do will "prevent" situations from arising. They will arise as they will.

    Robert Burns (To A Mouse):
    “The best laid schemes o' Mice an' Men,
    Gang aft agley.
    An' lea'e us nought but grief an' pain,
    For promis'd joy!
     
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  10. army judge

    army judge Super Moderator

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    I learned many years ago that we come into this life penniless, although we might die with riches untold, we die bereft of all our earthly acquisitions.

    Just as our parents once clothed our little bodies, so too will a mortician one day clothe us for the one final time, or in some cases we'll be cremated the way we were born.

    Our lives are merely lifetime leases on our access to the lives we lead, without any remainder for remaindermen.

    In essence, we're here on a leasehold that ends at some unknown time, in some unknown way, by some unknown event.

    All we know, though many appear to forget or acknowledge, IT was destined to end the moment it began.

    As many have written over the centuries, there is very little we can do to control our fates other than accept whatever the fates dole out.
     
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