|
|
|
Serving Philadelphia, Delaware County, Montgomery County, Bucks County and Chester County since 1996.
|
|
Issue 3, May 2007
FEATURE ARTICLE - Act 43 - Nursing Homes and the Return of Debtor's Prison |
HEALTHLINE - Tai Chi Can Boost Immunity Against Shingle |
LIFE CARE PLANNING - Meet The O'Neill Family |
CAREGIVER HELPLINE - Caring For Someone With Dementia |
Act 43 - Nursing Homes and the Return of Debtor's Prison
Janice has been a resident at Shady Acres Nursing Home for the past six months, since she suffered a devastating stroke. About a year ago, when Janice was perfectly healthy, her granddaughter
was accepted at Yale. She wanted to show her love and support, so she gave her granddaughter a $50,000 gift, which she used toward tuition. Now Janice finds herself in a nursing home that costs
$9,000 per month, and she will soon be out of money. What Janice does not know is that, because of newly enacted Medicaid regulations, she will not be eligible for Medicaid when her money runs out because
of the gift she made to her grandchild. Is this a problem for the nursing home? Is this a problem for Janice and her family? Read on.......
Quietly, on July 7, 2005, under cover of the public outcry over legislative pay raises and without any opportunity for public comment, the Pennsylvania legislature passed a law that dragged the concept
of "debtor's prison" from the colonial era to modern times. For the sake of simplicity, I will refer to this law throughout this article as "Act 43".
Act 43 states that the following individuals have a responsibility to financially assist an indigent person:
* a) spouse
*b) child
*c) parent
It has long been the case that parents are liable for the support of their minor children and, under some circumstances, spouses are obligated for each other's debts. What is controversial here is a
statutory support obligation running from an adult child to a parent, especially when we are talking about nursing home care. Act 43's statutory obligations are inconsistent with how Pennsylvania Courts
have interpreted common law in this area, which holds that legal "emancipation" at the age of majority (18) releases an adult child from a duty to contribute to the support of his or her parents. But Act 43
will take precedence over this Court interpretation.
Now we all know that, in the real world, in the great majority of cases, an adult child will help a parent who needs financial support to the best of his or her ability. What is different now, and what you
must be aware of are the potential ramifications of Act 43. You can be found to be legally liable to financially support a parent even if you feel you cannot afford to do so. And it is not only your parent
who has that ability to enforce that right. Petitions for support for an indigent may be brought by any "public body or public agency having an interest in the care, maintenance or assistance of such indigent
person". This includes nursing homes. This means that nursing homes can enforce the obligation of children to pay for their parents nursing home costs in situations where the parent has run out of money and eligibility
for Medicaid is a problem.
I have spoken before about recently enacted Medicaid rules that will make Medicaid eligibility more and more difficult (see the March issue of LifeLines). Especially because of the five-year look-back period and much more
complicated transfer of asset rules, there will be many situations where families and nursing homes realize too late that a nursing home resident is going to run out of money and, because of improper planning or just no planning at all,
they will not be eligible for Medicaid. To try to discharge such a resident would be problematic for a nursing home for a number of reasons. What they may try to do is sue the children of the resident under Act 43.
I was not exaggerating about the idea of "debtor's prison". Act 43 authorizes imprisonment of a non-complying child for up to six months. Also, Act 43 gives the Court great leeway in assessing the amount of a
support order. In one case decided recently, a Court required a son to make monthly contributions to his mother's health care debts despite evidence that the son's own expenses exceeded his monthly income.
The answer to this problem is proper advance Medicaid planning. With the right kind of plan in place, an individual and his or her family will not have to worry about running out of money and not being eligible for Medicaid.
A proper plan will also protect a nursing home resident's assets to the maximum extent possible, which has always been the main goal of any good Medicaid asset protection plan. Now with Act 43, a good plan can also keep
you from getting sued and keep you out of jail.
|
 |
Call Us: (610) 446-9626
Fax Us: (610) 446-9985 |
Visit our offices:
17 Mifflin Ave. Suite 202
Havertown, PA 19083 |
| Schedule a Consultation |
|
