Are You Required to Support Your Parents?

If any person being of full age, and having sufficient income after reasonably providing for his or her own immediate family shall, without reasonable cause, neglect to maintain and support his or her parent or parents, if such parent or parents be sick or not able to work and have not sufficient means or ability to maintain or support themselves, such person shall be deemed guilty of a Class 2 misdemeanor; upon conviction of a second or subsequent offense such person shall be guilty of a Class 1 misdemeanor.  If there be more than one person bound under the provisions of the next preceding paragraph to support the same parent or parents, they shall share equitably in the discharge of such duty.

On its face, this law makes it a crime not to support one’s parents if they are unable to support themselves.  What about all those elderly persons receiving assistance from the state because they can’t pay for nursing home costs themselves?  It might make one think twice about assisting your parents in divesting themselves of assets in order to qualify for Medicaid.  Also, it could make considering long-term care insurance that much more important – who wants their kids to get arrested, even if just for a misdemeanor?

However, on the North Carolina Bar Association’s Elder Law Section list serve, there was a recent discussion of the statute and the fact that no one is aware of anyone being prosecuted for violation of the the law.

That’s not surprising – even as a estate planning attorney (as opposed to a criminal attorney), I see many problems with the law.  It is so vague that I do not see how it could ever stand up to challenge before a judge.   How does one determine what “sufficient income” is or “reasonable providing.”  What about saving for one’s own retirement to avoid the same problem with the next generation? What about college expenses for kids? The statute also makes no mention of assets, so apparently one could have a couple of million dollars socked away, and the statute would not apply if one’s income was all used for reasonable support of one’s immediate family.

Bottom line – you probably don’t need to worry about N.C.G.S. Section 14-326.1.  In the unlikely event you are busted for a violation, hire a good attorney.  You’ll probably make law by having the statute declared unconsitutional.

CATEGORIES: Elder Care