By Patricia Kalla Zonnenberg
The New York Times Magazine’s weekly The Ethicist column recently explored a difficult question that may challenge many parents of adult children with special needs.
The Ethicist helps people sort out the morality of the choices they have. In “May I Cut My Daughter Out of My Life?”, an anonymous parent writes that his or her high-school-aged daughter with learning disabilities and mild autism also has a severe mood disorder that has battered the parents’ marriage, careers, and finances. They reside in a state whose laws make the daughter their responsibility in her adulthood. They have set up a special needs trust (SNT) for their daughter and now the parent wonders whether, ethically, he or she can simply walk away from the daughter. “Having lost the middle chunk of my life to chaos and misery, am I really condemned to live this way until I die?” the parent asks. “Would I be the most terrible parent in the world if I packed my bags and vanished?”
Responding to the parent, Kwame Anthony Appiah, who teaches philosophy at New York University, concludes that, morally, there are “limits on the demands that children can reasonably make on their parents,” and that walking away may be justified.
That, of course, is an ethical decision entirely up to the individuals. What may not be up to the individuals, however, is whether they may walk away under the law of their state, a question that Appiah does not address.
Understanding your state’s legal requirements for parental support of adult children may be difficult. The law on this subject can be complicated and confusing. There are a variety of approaches across the states, and sometimes even within states, depending on the circumstances.
A small number of states have statutes that expressly require parents to support their incapacitated child. The language of the laws varies, although they typically seek to protect the state from having to pay public benefits to an individual. For example, Maryland requires a parent who is capable of earning sufficient means to provide food, shelter, care and clothing to her destitute child, one who has no means of subsistence and cannot be self-supporting due to physical or mental infirmity. In California, parents have a responsibility to maintain, to the extent of their ability, a child of whatever age who is incapable of earning a living and without sufficient means.
Some states have broader “filial support” statutes. These laws require parents, children, and siblings to support one another. When these statutes apply, parents may be required to support a child incapable of supporting himself.
In Pennsylvania, “filial support” laws have existed in one form or another from Colonial times to the present. Parents of an indigent adult child, regardless of whether or not the child is incapacitated, can be held legally responsible for payment of that child’s medical bills. The converse is also true: adult children of an indigent parent can be successfully sued for payment of that parent’s unpaid medical bills – even if the child did not receive any of the parent’s money or otherwise cause the problem. This “no-fault” liability includes nursing home bills not covered under Medicaid.
Fortunately, filial support laws are not widely recognized or used by health care providers in Pennsylvania, with one notable exception. Collection attorneys regularly harass and sue adult children of parents who incur unpaid nursing home bills. Medicaid is available to pay for nursing home care after indigence. But if an indigent parent fails to properly and timely file a Medicaid application, or makes uncounseled gifts, Medicaid will not pick up the full tab and the nursing home will chase after the children to collect the pre-eligibility unpaid balance, often amounting in the thousands of dollars.
Many state courts will require a financially able parent or parents to support an adult child with a disability who is unable to support himself. That judicial decision may be based on a state statute that specifically requires parental support, a related statute that may justify the court’s ruling, prior court decisions, or common law which historically provides that parents must support their incapacitated child. In making its determination, the court will consider facts such as the child’s degree of disability and the parents’ means.
Courts in a small number of states will not impose an obligation on parents to support their adult children. These courts often conclude that entering such an order would exceed their authority when there is no state statute establishing such a responsibility.
Child Support in Divorce
Family law provisions in some states allow courts to order support obligations to extend beyond the age of majority (adulthood) if the child has a mental or physical disability.
The age of onset of the disability may become a factor for courts deciding a parent’s responsibility to support her child following divorce. In instances where the child has a severe disability before reaching the age of majority, some courts rule that the child may never become able to care for himself, regardless of age, and support obligations may be ordered into adulthood for some period of time. In some states, parental support may not be required where a disability arises or occurs after the child has already become an adult.
Following the death of a parent, a court may order that assets from the estate of the deceased parent be used to help support an incapacitated adult child where such support is required.
Do Public Benefits Affect a Parent’s Support Obligation?
The public benefits a child receives may relieve a parent’s payment obligation to some degree. It depends on the benefits the child is getting and the court that is making the determination. Social Security Disability Income (SSDI), Social Security, and Supplemental Security Income (SSI) benefits are treated differently when being taken into account for determining a parent’s support obligation. SSI benefits typically do not offset a parent’s financial obligations while Social Security and SSDI benefits may.
Do a Child’s Trust Assets Affect a Parent’s Support Obligation?
When a child is the beneficiary of a trust, such as a special needs trust (SNT), the assets in that trust may reduce a parent’s financial obligations to his child. It will depend on the type of trust and how the assets are to be distributed to the beneficiary under the express terms of the trust document.
As you can see, whether parents may legally make the painful choice of cutting their child out of their life can be complicated. If you have a question or concern about your obligations to your adult child with special needs, you should contact your special needs planner.
To read “May I Cut My Daughter Out of My Life?”, The Ethicist, The New York Times, January 8, 2019, click here.
To see other articles related to planning for adult children with disabilities, click here, here, and here.