All fifty states have laws obligating parents to care for their children, but Ohio, Kentucky, and Indiana also have laws that could hold you responsible for the care of an elderly parent.
In this episode of “Simply Money,” Mark Reckman discusses the elder abuse law, what it means for you, and what you can do to avoid liability if there is estrangement, an elder has declined assistance, or another extenuating circumstance.
Episode Transcription
Amy Wagner:
You’re listening to Simply Money. I’m Amy Wagner along with Steven Strobach. I think as your parents get older, for many people, that’s one of the toughest things that you can handle, whether that’s coming back to your home to help take care of them, they just need so much help. But what happens if you’re in a situation where your parents aren’t cooperative, they don’t want your help, could you be actually liable for elder abuse? Joining us tonight with some interesting perspective on this, of course, is our estate planning expert from the law firm of Wood and Lamping, Mark Reckman. Gosh, Mark, there’s just so many… Oh, just horrible situations that can come up as parents are aging. And this is one of them that, unfortunately, a lot of people deal with.
Mark Reckman:
Well, in effect, 28 states here in the country have laws governing the responsibility that adult children have for their parents’ care, and Ohio, and Kentucky, and Indiana. All three are those kind of states. Now, you should note that all 50 states have laws obligating adults to care for their children. But we’re talking about the flip side of that.
Amy Wagner:
Give us a very practical scenario of when this could happen, because I think most people would say “No. I would, of course, I would never, ever, not take care of my parents,” but sometimes it’s really not in your hands.
Mark Reckman:
Well, I’ve got two cases on my desk right now, for example, where in both of these cases, the parents are lifelong alcoholics, still actively drinking. Their parents have significant brain damage as a result of alcohol abuse. They have other related health issues. One of them, for example, has cancer. And in both cases, the parents are refusing treatment and care. They don’t want to go to the doctor, but every once in a while they call 911 because maybe they pass out, or they are found unconscious in the home. And of course, the kids are worried about whether this is going to come back on them because they’re not doing something about it. And of course, doing something about it is really hard when the parents refuse all care.
Amy Wagner:
Okay, so let’s talk about how does that play out?
Mark Reckman:
There’re really two kinds of State laws. One is a civil law that says that the kids can be stuck with the cost of a parent’s care. That’s not what we’re talking about here. The other kind is criminal States, and that is States where the kids are not stuck with the cost, but they can go to jail, or be fined, for failing to provide care. And Ohio, Kentucky, and Indiana, fall into that category. We are, what we call criminal states, and this is what’s called elder abuse. And in essence, this means that you could be fined or jailed for neglecting your parents and neglecting your parents means knowingly, or intentionally, neglecting a person. This is a caregiver or a family member, and neglect is anything that causes harm, or serious risk of harm, to a vulnerable adult over the age of 60. This could be physical, could be sexual, could be verbal, emotional, it could be neglect, it could be abandonment. It also includes financial exploitation.
Amy Wagner:
So Mark, I think through this, I’m like, “Okay, for years before I was doing this, I was a general assignment reporter, and unfortunately they’re just horrible cases of often someone from the outside.” Sometimes it’s a family member coming in, take care of someone, and there’s abuse involved. But in a situation that you just set up, where these parents have been involved long-term abusive with alcohol, they’re actively deciding that they’re not going to get care or because of mental health, they’re not getting care. What do you do then as a child? Are you liable for that?
Mark Reckman:
Well, you could be, and of course there are three defenses that we’ll talk about in a minute. But what I advise my clients to do is to create evidence, proof that they have attempted to care, that they have offered care. And this could be a visitation log. It could be attempting to make doctor appointments that the parents refuse to go to. It could be email communication, or letters, or some kind of paperwork, or some behavior that shows that the child has attempted to intervene and that they’ve been declined. Now, the law does have exceptions. For example, the 3 that are the most common, the law does not require a child to provide care if they are estranged from the parent. They are not required if the parent has been abusive or neglectful themselves, or providing care or intervening creates a financial hardship on behalf of the child, then those are three exceptions that are written right into the law.
Amy Wagner:
How do you prove that you’re estranged, right? I mean, if you’re estranged, you’re estranged, but I don’t know that there’s any proof of that.
Mark Reckman:
Well, that’s right. That would require testimony from other family members or friends, something along those lines that would show a lack of contact for an extended period of time. I went on to the books to see if I could find any cases to sort of help us with that question, Amy. And I couldn’t really find any cases in Kentucky. So clearly, while this law is on the books in Kentucky, it’s not enforced there. The last case I found here in Ohio, was back in 1999. And in that case, a son assumed responsibility for his parents’ care, moved the parent into his house, but then he failed to provide adequate food, water, medical care, and ultimately the parent died as a result of the son’s neglect. In that particular case, what the prosecutor decided was, that the child had assumed responsibility for the care, and then neglected to provide it. And I thought that was very insightful about how these laws are enforced, as a practical matter.
Amy Wagner:
Where do you go with this? For anyone listening who’s like, “Gosh, I don’t have much contact with my parents, or I have tried, but they are actively making these decisions.” What are next steps? You just say, “It’s just simply documenting that you are trying.”
Mark Reckman:
That’s right. You document that you’re trying. And where I think it gets a little, especially hairy, is in families where there are conflicts. And this is particularly true, perhaps in second marriages, where the children come from different parents, and that the elder abuse can be used as a weapon. The threat of elder abuse can be used as a weapon against a brother, or sister, or a stepbrother, or stepsister, they’re mad at. Because what happens is, that when people see abuse, they’re supposed to call the Adult Protective Service. There’s an 800 number, you can remain anonymous.
Mark Reckman:
And in fact, Ohio actually has a mandatory reporting requirement for certain people. For example, as a lawyer, I’m required by law to report any evidence of elder abuse. That applies to social workers, healthcare workers, police, clergy, pharmacists, CPAs. We are all what are called mandatory reporters, but where it really gets hairy is when families are using this as a weapon to get at their brother, or sister, or half-brother, or stepbrother, or whatever. But as I said, we don’t have a lot of cases here in Ohio, so it does not appear to be the kind of serious, ongoing threat that you might think.
Amy Wagner:
All right. Family dynamics can be incredibly tricky, we all know that. But if this is a situation where your parents, their health is going downhill, they’re not getting the proper care, you’re trying and they’re not responding, making sure that you are adequately documenting that might be necessary in the future. Great insights, as always, from Mark Reckman. Of course, he’s our estate planning expert from the law firm of Wood and Lamping. You’re listening to Simply Money Here on 55 KRC, the talk station.
