Parental maintenance: When do children have to pay for the nursing home??
If life in your own house or apartment can no longer be easily managed in old age, moving to a nursing home is a sensible alternative for many older people. However, this is associated with considerable costs – even for homes in the lower price range.
The statutory long-term care insurance only offers partial insurance for those in need of long-term care. Residents pay for accommodation and meals themselves and must also pay for the care costs (see costs in the nursing home). According to a study by the PKV, people in need of care pay more than 1,750 euros per month on average for accommodation in a nursing home, often the costs are considerably higher (report: www.pkv.de).
But what if those in need of care cannot pay the high fees for a home themselves?
In principle, the state secures the accommodation of insolvent people through social benefits. The social welfare institution can, however, reclaim the benefits paid from the children, provided that they are solvent.
Who has to pay child support??
The legal maintenance obligation only applies to people who are descended from each other, i.e. primarily the children of the person in need of care. In rare exceptional cases, grandchildren and great-grandchildren can also be used to make maintenance payments, e.g. if the child’s children have already died.
But children don’t always have to stand up for their parents. Whether you actually have to pay child support depends on your income and wealth. The social service provider can only take advantage of the children of those in need of care if they are also financially capable. If this is not the case, the children are released from the obligation to pay. Because they are not obliged to financially ruin themselves to cover the care costs.
A prerequisite for an exemption from the maintenance obligation is that the son or daughter can provide proof of their insolvency (see decision of the OLG Hamm of November 21, 2012).
Can the person in need of care exempt his children from payments?
Ideally, a person in need of care can bear the cost of a home themselves and is not forced to burden their children with long-term maintenance payments. However, if the patient requires social benefits to cover the nursing costs, his or her hands are tied. The state demands the benefits of solvent children even without the consent of their parents.
Deductible and protective assets
However, solvent children are also entitled to secure their own and their family’s financial livelihood. Therefore, the legislator takes deductibles and savings into account when calculating maintenance.
A deductible of at least 1,800 euros is deducted from the adjusted net income according to the 2018 Düsseldorf table. A person who earns up to € 1,800 net per month cannot be used to make maintenance payments. For families, an increased deductible of 3,240 euros applies.
In principle, children who are subject to maintenance must also use their own assets to pay maintenance to their parents. However, this does not affect the so-called sparing assets. The savings assets are not fixed as a lump sum, but are determined by the court in a maintenance procedure.
The GroKo coalition agreement of 2017 agreed that in future only children with gross annual income of more than € 100,000 should be involved. In mid-August 2019, the Relatives Relief Act was passed in the cabinet. So far, the € 100,000 limit applies to all children and parents together, the so-called task force. The Bundestag and Bundesrat are expected to approve this year. The law is due to enter into force on January 1, 2020.
Reserves for old-age insurance amounting to five percent of gross income also remain unaffected. If a life insurance policy has been taken out, children can also not be obliged to terminate it for maintenance purposes (report: finanztip.de).
Children also do not have to use their own home to provide parental support (see also “Are children liable for their parents?”). A home that you live in does not have to be sold to cover the home costs for the parents or one parent. The saved rental costs must, however, be taken into account as additional income. If the house or condominium has not yet been paid off, interest and principal payments can be deducted from the saved rental costs. Reserves for renovation and modernization work on one’s own home do not always have to be used to finance parental maintenance. The same applies to reserves that were built up to buy a car that will be needed in the foreseeable future if the new car is indispensable – for example, to drive to work (report: finanztipp.de).
Be careful with donations
Older people who are financially well off sometimes want to do something good for their descendants and bequeath part of their wealth to them as a gift during their lifetime. There are many reasons for this – the grandson starts studying, the children have to make urgent repairs to the house or need start-up capital for their own company. Perhaps the money given should simply give the offspring further security or enable them to realize a long-cherished wish.
But caution is required here: Donations can usually be reclaimed up to ten years after the donation. If a social welfare institution makes advance payments and learns of a donation from the person in need of care within the past ten years, he may (with certain exceptions) demand that the person in need of care reclaim the assets to cover the care costs.
Taking family income into account
The performance of a child who is obliged to support the child is not measured solely on the basis of their own income, but also on the (possibly higher) income of the spouse. Because the child who is obliged to support the child has a right to maintenance from the spouse and thus benefits from the spouse’s income as part of the family support.
Even if the person liable for maintenance earns more than his spouse, the ability to pay child support is still determined according to the decision of the Federal Court of Justice, taking into account the spouse’s income:
The family deductible is deducted from the adjusted family income and the household savings are also deducted from the remaining income (usually ten percent). The entitlements of dependent children in the household and expenses for one’s own pension are also deducted.
Half of the resulting amount, plus the family deductible, is used to support the family. The maintenance debtor must contribute to the individual family needs calculated in this way in accordance with the ratio of the spouses’ income. The maintenance debtor can use the difference between his income and his share in individual family needs for parental maintenance.
Parent support also for an expensive home?
Do children who are liable for maintenance have to pay for each nursing home chosen by the resident, or the cheapest for each nursing home?
In a judgment of October 7, 2015, the Federal Court of Justice came to the decision that under certain circumstances children must also pay for homes in higher price categories. This is the case, for example, if it is unreasonable for mother or father to choose a home in the lower price category. For example, if the parent was initially able to finance a high-priced facility from their own assets or income and only became in need over time or through a higher level of care. Even if a child was involved in the selection of the expensive home beforehand, it cannot subsequently refuse to pay maintenance payments.
Special case: considerable failure of the parents
Relationships between parents and their children are not always problem-free. Small disputes are part of normal family life. However, there are circumstances that make it unreasonable for a child to care for the parent or parent. If the parents are guilty of significant misconduct against the child, their claim to maintenance is reduced or even ceases to exist. Major misconduct includes abuse, abuse, or gross neglect.
A break in contact, on the other hand, is not always considered a significant failure. By decision of February 12, 2014, the BGH ruled that the right of a dependent to receive child support remains in place even after years of breaking contact with the son or daughter, provided that the dependent in the formative phase of the first 18 years of life essentially complied with his or her parents’ obligations and no further circumstances are present, which make the behavior of the dependent appear to be a serious misconduct. The right to maintenance remains in existence even if the parent in the notarial will only considers the son or daughter with the compulsory portion in a notarial will, since they are only exercising their right to be exempt from certification.
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