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Elder Law Newsletter
Duty of Care for the Children of Elderly Parents
Baby boomers, individuals born in the “baby boom” years (1946-1964) are reaching retirement age and shall continue to do so for the next couple of decades. As a result, an unprecedented burden will be placed upon public retirement programs such as Social Security, Medicare, Medicaid, etc. This burden will only serve to increase the risk that, as retirees grow older and more infirm, their needs will exceed their resources.
This article generally examines the legal, as opposed to the moral, obligations of adult children to provide support for their aging parents. However, the law on this issue is not uniform and varies considerably among states. While some states require it by law, other states do not, absent special circumstances. Such circumstances include situations where a contract exists and the adult child has received money or something else of value.
State Requirements for the Support of Parents
Some state laws require children to support their parents if they cannot support themselves. Under Delaware law, for example, children have a duty to support parents who become “poor people” and are therefore unable to support themselves. This obligation may be enforced through a petition to, and resulting order from, the family court.
On the other hand, Indiana law regulates any individual whose father or mother provided necessary food, shelter, clothing, medical attention and education until the age of sixteen. If financially able, based on property, income or earnings, the individual “shall” contribute to the support of parents who are unable to furnish their own necessary food, clothing, shelter, and medical attention (and their burial under certain circumstances). Enforcement occurs through an action filed in the appropriate county court. The action may be instituted by the parents themselves or the following officials on behalf of the parents:
- The prosecuting attorney of the judicial circuit
- Director of the county office of family and children where the parents reside
- The township trustee where the parents reside
- The state division of family and children
Duties Under State Elder Abuse Laws
All states have some form of elder abuse law that may criminalize elder abuse and/or provide for a civil action against the abuser(s). Under most of these statutes, only after an individual becomes a “caregiver,” via contract or otherwise, is an enforceable duty of care created as a basis for an elder abuse action.
Under the Illinois law criminalizing elder “abuse and neglect,” any failure by a “caregiver” to perform acts necessary to “preserve the life or health of the elderly person” constitutes abuse. (Here, “elderly person” is defined as one over 60 years old). The statute defines “caregiver” as one with a duty to provide care who knows or should know that the elderly person is unable to adequately provide for his own health and care. Examples may include employees and adult children who reside with, or in the same building as, the elderly person, or those who regularly visit.
Duty to Report Elder Abuse
Finally, the elder abuse laws of most states create a duty on the part of health care, human services and law enforcement professionals, and employees of long term care facilities, to report elder abuse. Failure to do so may result in fines and misdemeanor charges.
In more than fifteen states, however, the duty to report extends to “any person.” Adult children (often the most frequent visitors to elderly parents) may therefore have a duty to report suspected elder abuse, even if they are not considered “caregivers.”
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