Wednesday, September 16, 2009

Gay equal rights means equal responsibility for "sustainability": watch filial responsibility laws

The push for “equality” or “equal rights” for gays has a backside that we need to start to account for: equal responsibility. If we win gay marriage, gay parenting rights, and the “right” to serve openly in the military, the other side of the bay is there’s an obligation to share in some of these “generative” obligations that involve uncertainty or unchosen risk, loss of sovereignty or enlistment, and emotional commitment. That all goes along with the idea that we need to pay heed to notions of “sustainability.”

One of the biggest problems occurs when a childless person is “selected” for family responsibility for someone else, a process that occurs naturally in more closed, religious communities. This kind of situation will occur much more often in the future because of demographics: smaller families and fewer children, along with longer life spans. The natural result is that many LGBT people will get called back from their independent lives to care for aging parents.

In past generations, the “non marrying kind” (especially women) stayed home and looked after their elders, who usually did not face the long periods of disability that are more common today with the way medicine (under Medicare) is practiced. Before, no one saw this as impacting freedom or “equal rights” as we understand them today. Medicare pays for (most) medical care for elders, but it does not pay for custodial care or caregiving (at home, in assisted living or in nursing homes), generally speaking. That falls back to the parents themselves, Medicaid, and the “extended families.”

That brings us to “filial responsibility laws”, which about 28 states have, and which are likely to see a lot more enforcement in the near future because of the budget pressure on states.

There is a conception that these laws deal only with Medicaid recipients, and while that is usually what triggers them, that’s not really true at the base. The law in many states, from previous centuries, presumes “loyalty to blood” or (generative or reproductive loyalty) to one’s own genes as an intrinsic “moral obligation”, subsuming the better known idea that you have to support the kids that you sire, which happens as a result of choice (for men at least), and which helps drive an ancillary debate on abortion and the “right to life” – and now that we find that the moral issues of the “right to life” at the end when tremendous expense is required are curiously related.

Filial responsibility really has three parts. The most familiar part lives largely at the federal level and is familiar to financial planners in terms of the “look back” period that was recently (around 2006) increased, meaning that parents could not give away assets to kids and then use Medicaid for nursing home expenses (partly because the federal government usually has an FPP share of the expenses). Of course, we all know from the gay marriage debate that probate and wills are a sensitive matter for LGBT people, and that at least in rare occasions wills contain “dead hand” clauses that require marriage and lineage to get and keep a bequest.

The second part is what we call “poor laws”, which do not necessarily get limited to senior-aged parents. They can be invoked by states to require adult children to support indigent parents who would otherwise use Medicaid services. When there are multiple children, a state has to take the adult kids to court, and a judge determines the fair share – and you guessed it, the adult child with no family or adult children of his own is likely to be assessed the largest share. (Somehow this reminds me of condominium special assessments by homeowners’ associations.) If you have “deadbeat dads” you can have “deadbeat adult children”, although the element of choice is not the same. Pennsylvania, back in 2005, moved its poor laws from the welfare code to the family code, as if to send a “culture war” message.

The third part may be the most troubling and nebulous, which has to do with neglect of adult parents known(by medical records – HIPAA protected, and that can present a Catch 22) to be disabled, which can bring out wrath similar to neglect of kids. Generally, if a parent has savings or resources, these are used to meet these needs, but the adult child (or children) have the responsibility to see that the resources are used prudently and that appropriate care actually is given. Neglect laws often have the notion of a party “responsible in fact” which can be nebulous (it doesn’t require custody) and these are generally the laws that can be used to prosecute babysitters for letting kids play with matches. But, following a complaint, a court could order the adult child to conduct himself as a provider of “his family” just as a father or mother. In a few states, adult children can also be required to provide for needy adult siblings, also.

It’s possible to deal with all this by having an attorney draw up the appropriate powers of attorney and then, in some cases, draw up living trusts. However in neglect cases POA’s could themselves be challenged, as well as an observation called “lack of affection” on some states’ guidelines. Naturally, family caregiving, like parenting, involves risks at becoming the targets of snipes from others; but one of the whole points of the “new old morality” is that risks and burdens must be shared and not everything is a matter of “choice” (as with hyperindividualism) in a “sustainable” society. When there are financial resources available, family members will try to move parents into care facilities, but this is not always done easily. The “childless” will not “get out of things”.

States vary in the way they define guardianship and conservatorship in relation to caregiving, but the legal recognition of these relationships may not be as critical as what is happening "in fact."

LGBT and childless adults who believe they may face responsibilities like this should become pro-active, developing "sovereignty" agreements with other family members in advance. It may be better to care for an elder in your own home (with a spouse) than to move back into a home owned by the parent.

LGBT leaders, like the HRC, ought to pay much more heed to the filial responsibility issue as part of the equality debate. Maybe one reason they do not is the fear that publicity will tempt budget-conscious states to crack down in enforcing their filial responsibility laws. The demographics of eldercare could well turn all our issues upsidedown.

Check my "Bill Retires" blog in Jully 2007 for links to state filial responsibility laws.

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