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Are you your brother’s keeper? Who is your brother?

While these unanswered questions are a matter of much debate worldwide, in the context of the elderly and disabled, the fog is clearing.

Support for spouses

In Texas, spouses have a duty to provide for one another’s necessaries: food, clothes, shelter and medical care.

Support for disabled children

Nationwide, parents have an obligation to support their children. In Texas, if the child is disabled and the parents divorced, child support obligations continue for life. If this is not part of the divorce decree, the child, as an adult, can ask the court to issue a new order.

The burden can be lessened by the adult child’s receipt of Supplemental Security Income (SSI) and Medicaid, food stamps (SNAP), utility assistance (LIHEAP) and Section 8 or supported housing.

If the child is disabled before and after 18 and a parent applies before the child is 22, the child can receive Supplemental Security Disability Income (SSDI) based on the parent’s Social Security retirement benefits when the parent retires or dies or if the parent becomes disabled. After receiving SSDI for 24 months, the adult child is also eligible for Medicare.

A disabled adult child is also eligible for Social Security Survivor’s Benefits.

Is this a one-way street?

Filial responsibility

Not always. In years past, many states had a filial responsibility law, requiring children to provide for their aged parents. Some states still do.

The concept of filial responsibility is embedded in the Medicaid rules. An adult child cannot be paid for doing things which an adult child would normally be expected to do for aged parents – such as mowing the lawn. If an adult child begins caring for aged parents for free, she cannot then charge backpay for her services. Since caregiving often expands, this can become a problem. Nonetheless, the State Medicaid Manual states that “[r]elatives and family members legitimately can be paid for the care they provide.” Section 3258.1(A)-(A)(1) This seems to refer to qualified medical care.

Fiduciary duty

Related to these responsibilities is the concept of fiduciary duty. A fiduciary is required to put the other person’s interests first, to be loyal and transparent.

Some people, such as lawyers, trustees and agents under a power of attorney, take on this duty by contract.

Others, perhaps unknowingly, take it on by relationship. It need not be a kinship relationship. If the elderly or disabled person depends on and trusts someone younger, healthier, better educated or with greater business sophistication, that person has a legal obligation not only not to abuse that trust but also to put the other person’s interests first – to be their brother’s keeper.

Who is your brother?

 

Elder law attorney, Terry Garrett, is a member of the National Academy of Elder Law Attorneys and is an Approved Guardianship Attorney. She assists people in elder law, estate and special needs planning, guardianship and settling estates. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.

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