As a religious law, adage, and recipe for generational reciprocity, the “honor commandment” looms large as a societal construct, especially with 76 million baby boomers in the United States approaching old age. This article explores how the honor commandment persists as a normative ethic in the lived practice of elder care and the ways that it is supported by, or at odds with, secular legal imperatives of elder care.
Much in the way that the biblical story of Ruth provides a broad interpretation of how to live the honor commandment, this interdisciplinary exploration is informed by contemporary experiences of elder care culled from ethnographic interviews as well as by theological, demographic, and legal source material. We argue that the honor commandment continues to support practical adherence to largely unknown legal obligations. Caring for aging and ill parents can impose burdens on the caretakers that secular laws often fail to alleviate, particularly because of changes in the structure of twenty-first-century families. We suggest potential reforms that could better facilitate honoring seriously ill elders and the grown children who care for them.
This article is based on data from a study of generation X caregiving and grieving funded by the Lilly Endowment through the Institute for American Values. Many of the themes discussed here will be elaborated on in a symposium edited by Ziettlow and Cahn in volume 31, issue 3, of the Journal of Law and Religion (November 2016) and in Homeward Bound, slated for publication by Oxford University Press in 2016.
1 Bookman, Ann & Kimbrel, Delia, Families and Elder Care in the Twenty-First Century, 21 The Future of Children 117, 124 (2011); Who Are the Caregivers?, Family Caregiver Alliance (Dec. 31, 2003), https://caregiver.org/women-and-caregiving-facts-and-figures. The Prophet Mohammed listed one's mother as the first person to whom one should be good. Al-Heeti, Roaa M., Why Nursing Homes Will Not Work: Caring for the Needs of the Aging Muslim American Population, 15 Elder Law Journal 205, 209–10 (2007).
2 Lee, Yeonjung & Tang, Fengyan, More Caregiving, Less Working: Caregiving Roles and Gender Difference, Journal of Applied Gerontology (Nov. 5, 2013), http://jag.sagepub.com/content/early/2013/10/29/0733464813508649.full. Amanda Hess, Women Are More Likely to Care for Aging Parents—And Drop out of the Workforce to Do It, Slate (Nov. 21, 2013), http://www.slate.com/blogs/xx_factor/2013/11/21/elder_caregiving_women_are_more_likely_to_drop_out_of_work_to_care_for_aging.html.
3 The term “thick description” can be first traced to Clifford Geertz, Thick Description: Toward an Interpretive Theory of Culture, in The Interpretations of Cultures (1973). Ziettlow's understanding of the term in the context of Christian theology can be traced to the coursework and writing of Don S. Browning, e.g., Browning, Religious Thought and the Modern Psychologies: A Critical Conversation in the Theology of Cultures (1987) and Browning, A Fundamental Practical Theology (1996).
4 Womanist theologians stress the importance of the “view from below.” See Embracing the Spirit: Womanist Perspectives on Hope, Salvation, and Transformation (Emilie M. Townes ed., 1997); Delores S. Williams, Sisters in the Wilderness and the Challenge of Womanist God-Talk (1993); Katie Geneva Cannon, Katie's Cannon (1998).
5 A full description of the research methodology is included as an appendix in the forthcoming book, Ziettlow, Amy & Cahn, Naomi, Homeward Bound: Filial Responsibility in the 21st Century (Oxford University Press, forthcoming 2016). In brief, we selected a seven-month period in the racially diverse, midsize American city of Baton Rouge, Louisiana, and read every obituary appearing in its leading newspaper, the Advocate. From that sample we made a list of every grown child or stepchild named in the obituary of a deceased person age seventy or younger. In this way, we compiled a list of more than 2,700 names of persons whose baby boom generation parent had died approximately one year previously. Using information available in publicly accessible databases, we found reliable contact information for more than 1,500 of these grown children and stepchildren survivors. We employed all available means of contact—regular mail, e-mail, and telephone—to invite these grown children and stepchildren to be participants in our study. From the random sample of more than 1,500, we recruited 62 participants located in Louisiana, California, Texas, Missouri, North Carolina, and Florida. Interview demographics reflect the gender and race diversity of Baton Rouge and the surrounding area: thirty-eight female, twenty-four male; three Hispanic, twenty-four African American, and thirty-five Caucasian. All interviewees were middle-aged, with ages ranging from twenty-eight to forty-eight years old. In terms of birth order, twenty were the oldest child, thirteen the middle child, thirteen the youngest child, five the only child, and one adopted; twenty-one were from first and only married families, twenty-two from single-parent families, and nineteen from remarried parent families, seven of whom were a stepchild to the deceased. In terms of religious identification, twenty-six identified as nondenominational Christian, ten as mainline Christian, eight as Baptist Christian, six as Catholic Christian, seven as none, four as spiritual or Christian but nonpracticing, and one as atheist.
The structure of the qualitative interview tool was modeled after the interview instrument Elizabeth Marquardt used in the National Survey on the Moral and Spiritual Lives of Children of Divorce, survey questions included in Appendix B of Between Two Worlds: The Inner Lives of Children of Divorce, infra note 66. What follows is a summary of the interview questions used in the research discussed in Homeward Bound:
(1) the drawing of their family when they were a child,
(2) describing their home and family rituals as a child,
(3) the story of divorce/remarriage/cohabitation, if applicable,
(4) describing their church/faith home growing up,
(5) the time before, during, and immediately after the death of their parent or parent figure,
(6) describing the funeral and burial,
(7) sorting through the belongings of their parent and the inheritance,
(8) and lastly, coping in the past year, how private and public rituals have changed, what spiritual beliefs have been helpful, and their reflections on the commandment “Honor your mother and father.”
The interviews, averaging two hours in length, were audio recorded and transcribed. Interviews were conducted in congregations, libraries, and by phone. Respondents received $50 for their time. Following transcription of each interview, we organized the materials into sections to be analyzed for salient themes.
6 See Patrick D. Miller, The Ten Commandments Testament 185–86 (2009); Byron L. Sherwin, The Fifth Word: Honoring Parents, in The Ten Commandments for Jews, Christians, and Others 87 (Roger E. Van Harn ed., 2007); Anathea E. Portier-Young, The Fifth Word: Response, in The Ten Commandments for Jews, Christians, and Others 100, 102, 109–11 (Roger E. Van Harn ed., 2007).
7 We use the book of Ruth as a metaphor but do not conduct trained textual analysis. For more textual analysis see Bertman, S., The Symmetrical Structure of Ruth, Journal of Biblical Literature 84, 166–68 (1965); Trible, Phyllis, Two Women in a Man's World: A Reading of the Book of Ruth, 59 Soundings: An Interdisciplinary Journal 251 (Fall 1976).
8 See e.g., Nina Kohn, Elder Law: Practice, Policy, and Problems (2013); Lesher, Christina, Wilson, Andrea & Wesley, Kerrie, Whose Bill Is It Anyway? Adult Children's Responsibility to Care for Parents, 6 Estate Planning & Community Property Law Journal 247, 278 (2014); Pearson, Katherine C., Filial Support Laws in the Modern Era: Domestic and International Comparison of Enforcement Practices for Laws Requiring Adult Children to Support Indigent Parents, 20 Elder Law Journal 269 (2013); Alicia B. Kelly, Sharing Inequality, 2013 Michigan State Law Review 967, 980. In Health Care & Retirement Corporation of America v. Pittas, 2012 PA Super. 96, 46 A.3d 719 (2012), the court applied Pennsylvania's filial responsibility statute to find a son liable for his mother's medical rehabilitation expenses. For further discussion of these and other laws, see infra text at notes 165–87.
9 E.g., Yang, Y. Tony & Gimm, Gilbert, Caring for Elder Parents: A Comparative Evaluation of Family Leave Laws, 41 Journal of Law, Medicine & Ethics 501 (2013); Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601–54, 2612(a)(1).
10 National Alliance for Caregiving & AARP (formerly American Association of Retired Persons), Caring in the U.S.: A Focused Look at Those Caring for Someone Age 50 or Older 1–2 (2009).
11 See, e.g., Pearson, supra note 8.
12 Ellickson, Robert, Of Coase and Cattle: Dispute Resolution among Neighbors in Shasta County, 38 Stanford Law Review 623 (1986); see Mnookin, Robert H. & Kornhauser, Lewis, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale Law Journal 950 (1979).
13 Jewish/Talmudic, Anglican, Reformed, and Orthodox Christian sources consider the Honor Commandment fifth, whereas Lutheran and Catholic Christians consider it the fourth. In this paper we will refer to it as the fifth. In discussing the division of the Two Tables, Calvin cites Origen and Augustine who considered it the fifth as well as Josephus who, no doubt according to the common agreement of his age, assigns five commandments to each table. Calvin: Institutes of the Christian Religion 379, 401–04 (John T. McNeill ed., 1960).
14 Exodus 20:12. Biblical citations are to the New Revised Standard Version translation found in The New Oxford Annotated Bible (Bruce M. Metzger & Roland E. Murphy eds., 1991).
15 Mona DeKoven Fishbane, “Honor Your Father and Your Mother”: Intergenerational Values and Jewish Tradition, in Spiritual Resources in Family Therapy 136 (Froma Walsh ed., 1999).
16 Miller, supra note 6, at 168.
17 See The Oxford Encyclopedia of the Books of the Bible 266–68 (Michael D. Coogan et al. eds., 2011). According to Lawrence Boadt, Reading the Old Testament: An Introduction 93–97 (1984), four sources for the Pentateuch can be traced, one of which is the E, or “Elohist,” Source, which refers to the name, “Elohim,” used for God. It stands in contrast to the J, or “Yahwist,” Source, the P, or “Priestly,” Source, and the D or “Deuteronimist” Source.
18 Boadt, supra note 17, 181–82.
19 Exodus 20:12 lists “father” first, whereas Leviticus 19:3 lists “mother” first.
20 Gerald J. Blidstein, Honor Thy Father and Mother: Filial Responsibility in Jewish Laws and Ethics 98 (2005) (“Men and women are equal in respect to filial piety. A daughter is obliged to serve and revere her parent as much as a son.”).
21 Maxine Eichner, The Supportive State (2010); Feminism, Law, and Religion (Marie A. Failinger, Elizabeth R. Schiltz & Susan J. Stabile eds., 2013); Martha Fineman, The Vulnerable Subject and the Responsive State, 60 Emory Law Journal 251–76 (2010); Robin West, Caring for Justice (1999).
22 Failinger, Schiltz & Stabile, supra note 21, at vii.
23 E.g., Sharon Hays, The Cultural Contradictions of Motherhood 305–06 (1996); Cossman, Brenda, The “Opt Out Revolution” and the Changing Narratives of Motherhood: Self Governing the Work/Family Conflict, Utah Law Review 455, 472–73 (2009); Harbach, Meredith Johnson, Outsourcing Childcare, 24 Yale Journal of Law & Feminism 254, 265–70 (2013); Kessler, Laura T., Feminism for Everyone, 34 Seattle University Law Review 679, 688 (2011); Kim, Suzanne A., The Neutered Parent, 24 Yale Journal of Law & Feminism 1, 25–26, 49–50 (2012); The Subject of Care: Feminist Perspectives on Dependency (Eva Feder Kittay & Ellen Feder eds., 2003).
24 Most Reformation scholars carry this broad interpretation of the commandment, as does the Council of Trent. See Martin Luther, The Large Catechism 357, in The Book of Concord: The Confessions of the Evangelical Lutheran Church 343, 380 (Theodore G. Tappert, ed. & trans., 1959); McNeill, supra note 13, at 404; James Akin, The Fourth Commandment, in Catechism of the Council of Trent (July 14, 2014), available at http://www.cin.org/users/james/ebooks/master/trent/tcomm04.htm.
25 The Book of Concord, supra note 24, at 343, 380. Luther writes: “What does this mean? We should fear and love God, and so we should not despise our parents and superiors, nor provoke them to anger, but honor, serve, obey, love and esteem them … all of this you should do not only cheerfully, but with humility and reverence as in God's sight. He who has the right attitude towards his parents will not allow them to suffer want or hunger, but will place them above himself and at his side and will share with them all he has to the best of his ability . . . . you are to esteem and prize them as the most precious treasure on earth, behave respectfully toward them, and not address them discourteously, critically, or censoriously, but to submit to them and hold your tongue even if they go too far.” Id.
26 Miller, supra note 6, at 179.
27 Blidstein, supra note 20, at xii.
28 These acts resonate in the field of virtue ethics, and in particular “burdened virtues,” as “those traits that make a contribution to human flourishing—if they succeed in doing so at all—only because they enable survival of or resistance to oppression, which in other ways they detract from their bearers’ well-being, in some cases so deeply that their bearer may be said to lead a wretched life.” Lisa Tessman, Burdened Virtues: Virtue Ethics for Liberatory Struggles 95 (2005).
29 For example, “Protestants have long translated the moral duties set out in the Decalogue into reciprocal rights … each person's duties towards a neighbor, in turn, can be cast as a neighbor's right to have that duty discharged.” John Witte, Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation 302–03 (2002).
30 See Charlotte K. Goldberg, The Normative Influence of the Fifth Commandment on Filial Responsibility, 10 Marquette Elder's Advisor 221, 244 (2009).
31 E.g., Goldberg, supra note 30. Al-Heeti, supra note 1, at 209; Radwa S. Elsaman & Mohamed Arafa, The Rights of the Elderly in the Arab Middle East: Islamic Theory versus Arabic Practice, 14 Marquette Elder's Advisor 1, 47 (2012). The Analects of Confucius, the Qur'an, and The Laws of Manu all contain commandments related to filial piety. Comparative religious traditions and the honor commandment is the organizing principle for a forthcoming symposium issue of the Journal of Law and Religion (November 2016).
32 Xing, Guang, Filial Piety in Early Buddhism, 12 Journal of Buddhist Ethics 1 (2005).
33 See, e.g., Qin, Daniel, Confucian Filial Piety and the Fifth Commandment: A Fulfillment Approach, 16 Asian Journal of Pentecostal Studies 139 (2013); Adult Children Ignoring Confucius Risk Lawsuits in China, Bloomberg Business (Mar. 17, 2013), http://www.bloomberg.com/news/2013-03-17/chinese-kids-who-ignore-confucious-face-state-backlash.html.
34 See Charlotte Ikels, Filial Piety: Practice and Discourse in Contemporary East Asia (2004).
35 Kevin Pollard & Paola Scommegna, Just How Many Baby Boomers Are There?, Population Reference Bureau, http://www.prb.org/Publications/Articles/2002/JustHowManyBabyBoomersAreThere.aspx (updating a 2002 article by John Haaga).
36 Mary Finn Maples, Spirituality, Wellness, and the “Silver Tsunami”: Implications for Counseling, CounselingOutfitters.com, http://counselingoutfitters.com/vistas/vistas07/Maples.htm (last visited Mar. 3, 2014).
37 D'Vera Cohn & Paul Taylor, Baby Boomers Approach 65—Glumly, Pew Research Center (Dec. 20, 2010), http://www.pewresearch.org/daily-number/baby-boomers-retire/.
38 Donald Redfoot, Lynn Feinberg & Ari Houser, The Aging of the Baby Boom and the Growing Care Gap: A Look at Future Declines in the Availability of Family Caregivers, AARP Public Policy Institute (Aug. 2013), available at http://www.aarp.org/content/dam/aarp/research/public_policy_institute/ltc/2013/baby-boom-and-the-growing-care-gap-insight-AARP-ppi-ltc.pdf.
39 Id. at 5, figure 3.
40 Id. at 7.
41 Lynn Feinberg, Susan C. Reinhard, Ari Houser & Rita Choula, Valuing the Invaluable: 2011 Update, The Growing Contributions and Costs of Family Caregiving, AARP Public Policy Institute (June 2011), available at http://assets.aarp.org/rgcenter/ppi/ltc/i51-caregiving.pdf.
42 Carmen DeNavas-Walt, Bernadette D. Proctor & Jessica C. Smith, Income, Poverty, and Health Insurance Coverage in the United States: 2012, 16, figure 6 (2013), http://www.census.gov/prod/2013pubs/p60-245.pdf.
43 Kim Parker & Eileen Patten, The Sandwich Generation: Rising Financial Burdens for Middle-Aged Americans, Pew Research Center (Jan. 30, 2013), http://www.pewsocialtrends.org/2013/01/30/the-sandwich-generation/.
44 Wendy Wang, Kim Parker & Paul Taylor, Breadwinner Moms: Mothers Are the Sole or Primary Provider in Four-in-Ten Households with Children; Public Conflicted about the Growing Trend, Pew Research Center (May 29, 2013), http://www.pewsocialtrends.org/2013/05/29/breadwinner-moms/.
46 Aging Statistics, Administration on Aging, http://www.aoa.gov/Aging_Statistics/ (last visited Mar. 3, 2014).
47 United States Census Bureau, Statistical Abstract of the United States 76, table 102 (2011) (describing life expectancy at birth for those born from 1970 to 2007 and projected for those born from 2010 to 2020).
48 Brown, Susan L. & Lin, I-Fen, The Gray Divorce Revolution: Rising Divorce among Middle-Aged and Older Adults, 1990–2010, 67 Journals of Gerontology Series B Psychological Sciences & Social Sciences 731 (2012).
49 Retooling for an Aging America: Building the Health Care Workforce, National Research Council (2008); Kim Parker & Eileen Patten, The Sandwich Generation: Rising Financial Burdens for Middle-Aged Americans, Pew Research Center: Social and Demographic Trends (Jan. 30, 2013), http://www.pewsocialtrends.org/2013/01/30/the-sandwich-generation/; Linda A. Jacobsen, et al., America's Aging Population, 66 Population Bulletin 1 (2011).
50 McKinsey Quarterly: Serving Aging Baby Boomers, McKinsey Global Health Institute (Nov. 2007), http://www.mckinsey.com/insights/economic_studies/serving_aging_baby_boomers.
51 Brown & Lin, supra note 48. They note that “the proportions ever divorced, currently divorced, and married at least twice are highest among individuals aged 50 and older.” Id.
52 Nancy Kingsbury & John Scanzoni, Structural-Functionalism, in Sourcebook of Family Theories and Methods: A Contextual Approach 95 (Pauline Boss et al. eds., 1993); Naomi Cahn, The New Kinship, 100 Georgetown Law Journal 367 (2012).
53 David M. Schneider, American Kinship: A Cultural Account 30 (1968).
54 Schmeekle, Maria et al. , What Makes Someone Family? Adult Children's Perceptions of Current and Former Stepparents, 68 Journal of Marriage & Family 595 (2006); Naomi R. Cahn, The New Kinship: Constructing Donor-Conceived Families 30 (2013); cf. Hasday, Jill Elaine, Siblings in Law, 65 Vanderbilt Law Review 897 (2012).
55 Averting the Caregiving Crisis: An Update, Rosalynn Carter Institute for Caregiving (Mar. 2012), available at http://www.rosalynncarter.org/UserFiles/File/PositionPaperUpdate3-19-12.pdf.
56 The Decline of Marriage and Rise of New Families, Pew Research Center (Nov. 18, 2010), available at http://www.pewsocialtrends.org/files/2010/11/pew-social-trends-2010-families.pdf.
57 Susannah Fox, Maeve Duggan & Kristen Purcell, Family Caregivers Are Wired for Health, Pew Research Center 22 (June 20, 2013), available at http://www.pewinternet.org/~/media//Files/Reports/2013/PewResearch_FamilyCaregivers.pdf.
58 Informal Caregiving: Compassion in Action, U.S. Department of Health and Human Services 12–20 (June 1998), available at http://aspe.hhs.gov/daltcp/reports/carebro2.pdf.
59 Barbara Coleman & Sheel M. Pandya, Family Caregiving and Long-Term Care, 91 Public Policy Institute Fact Sheet 1 (November 2002), http://www.caregiverslibrary.org/Portals/0/Family%20Caregiving%20and%20LTC%20-%20AARP%20PPI.pdf.
60 Haupt, Jennifer, Elder Care: The Next Frontier in Family Benefits, 28 Pension World 10 (1992).
61 Emily Abel, Adult Daughters and Care for the Elderly, in The Other within Us: Feminist Explorations of Women and Aging 135 (Marilyn Pearsall ed., 1997); Kosseck, Ellen Ernst & DeMarr, Beverly J., Assessing Employees’ Emerging Elder Care Needs and Reactions to Dependent Care Benefits, 22 Public Personnel Management 617, 619 (1993); Smith, Peggie R., Elder Care, Gender, and Work: The Work-Family Issue of the 21st Century, 25 Berkeley Journal of Employment and Labor Law 351, 361 (2004).
62 M. Christian Green, From Third Wave to Third Generation: Feminism, Faith, and Human Rights, in Feminism, Religion and Law 141, 164. (Marie A. Failinger, Elizabeth R. Schiltz & Susan J. Stabile eds., 2013).
63 Qualitative work plays a significant role in grounding both legal and theological work. In the law, see, e.g., Ellickson, supra note 12; Littwin, Angela, Beyond Usury: A Study of Credit Card Use and Preference among Low-Income Consumers, 86 Texas Law Review 451, 454 (2008) (using interviews with fifty low-income women to understand the “risks and rewards of consumer credit for low-income families”). For issues involving theology and ethnography, see, e.g., Practical Matters, issues 3 and 6, available at http://www.practicalmattersjournal.org/issue_cover/3.
64 Greene, Sara Sternberg, The Broken Safety Net: A Study of Earned Income, Tax Credit Recipients and a Proposal for Repair, 88 New York University Law Review 515, 529 (2013). Greene writes of the logic of qualitative research methods in legal and social practices, “Qualitative research is particularly useful in “explor[ing] micro-social phenomena . . . [and] the cultural understandings actors bring to social experience, interactions, and institutions.” Id. See Michelle Lamont & Patricia White, National Science Foundation Workshop on Interdisciplinary Standards for Systematic Qualitative Research 10 (2005), available at http://www.nsf.gov/sbe/ses/soc/ISSQR_workshop_rpt.pdf. Further, qualitative methods are useful for “unraveling the mechanisms underlying causal processes.” Id. Qualitative research also allows scholars to understand and gather data within social contexts in a way that traditional surveys do not.
65 Greene, supra note 64, at 529.
66 Inclusion of the honor commandment in the study's interview questionnaire began as a follow-up to Elizabeth Marquardt's work on the moral and spiritual lives of children of divorce, as first reported in Elizabeth Marquardt, Between Two Worlds: The Inner Lives of Children of Divorce 163–69 (2005). Marquardt asked young adults from both divorced and intact families, most of whom still had young and healthy parents, to reflect on the commandment to honor their father and mother. Those from intact families tended to react similarly, noting their respect for how their parents had raised them. Although some had struggled with abusive or neglectful parents, the commandment summarized their appreciation of their parents’ care and their understandings of their obligations to provide the care that they were naturally inclined to give. By contrast, Marquardt found that for those from divorced families, the commandment was much more complicated. First, it implies one's mother and father are a unit; children of divorce may have multiple adults who have played those roles. Second, and more importantly, the commandment caused them to quantify, and judge, what each of their parents had done for them. It was very easy for those from divorced families to honor a parent who had not disappeared at divorce, perhaps a single mother who had worked hard and raised her children well. But when one parent stood out as an honorable figure, it was often because the other parent was perceived to have failed. How, these young people asked, should they honor the parent who left or who did not keep promises? Does honor mean just forgetting these inadequacies/failures? Does it mean caring for that parent in ways beyond what the parent had done for the child? We wondered if this pattern of theological and ethical struggle would continue for the grown child as the parent aged, facing serious illness and death. Thus, we coded interviews for this issue.
67 Failinger et al., supra note 21, at xviii.
68 Scholars note that humanity must honor parents as they honor God, for all three share in their creation. There are numerous scriptural references for parents as co-creators. E.g., Job 10:8–12; Psalms 139:13–14. Parents are joined to God in a “value continuum that endows the family with abiding worth, discloses the full stature of the human situation, and calls forth the response appropriate to that recognition.” Blidstein, supra note 20, at 1, 3. From a secular perspective, 1st century philosopher Philo notes that “parents by their nature stand on the border-line between the mortal and immortal sides of existence.” Blidstein, supra note 20, at 6–8.
69 Miller, supra note 6, at 175, 185–88; see Dargo, George, Deriving Law from the Biblical Narrative: The Book of Ruth, 40 New England Law Review 351 (2006). E.g., Charles P. Baylis, Naomi in the Book of Ruth in Light of the Mosaic Covenant, 161 Bibliotheca Sacra 413 (2004); Jacobson, Diane, Redefining Family in the Book of Ruth, 33 Word & World 5 (2013).
70 As with all research, there are limitations. The interviewees were, obviously, a self-selected group, and do not necessarily represent a national cross-section of children of baby-boomer parents. Instead, the interviews were qualitative and designed to offer rich description and point to further points of study. We did not formally survey specific demographic data points but drew general observations based on autobiographical information shared in the interview, such as education history and current vocation, and family information published in the obituary, such as date of birth, spouse, and siblings. We also used interviewer observation to draw broad generalizations about income level. The interviewers had no prior connection to the respondents. However, Ziettlow, an ordained clergy person, which was noted in the invitation letter, conducted the majority of the interviews. Many of the interviews were conducted in local congregations. That being said, the interviewers did not specifically recruit respondents who had honored a parent or were overly religious. The sample size of our study is larger than that of many qualitative studies but was necessary to reach an equal variability in family structure divided between respondents whose parents were in their first and only marriage at the time of caregiving and death, respondents whose deceased parent was single, and respondents whose parent was remarried or a stepparent. We also acknowledge that our findings may not be generalizable due to the nature of self-reporting as well as the unique structure of Louisiana law. However, our aim was to glean the cultural, moral, and spiritual understandings respondents brought to the experience of elder care and grief.
71 In contrast, in Eastern cultures, filial piety can implicate daughters-in-law significantly. “Following the traditional Asian family ethos, which assigns support of elderly parents to eldest sons, it is the daughters-in-law who constitute 80% of primary caregivers in Korea, who provide most of this support, including emotional support, even while distant from their elderly in-laws.” Sung, Kyu-taik, An Asian Perspective on Aging East and West: Filial Piety and Changing Families, in Aging in East and West: Families, States and the Elderly 44 (Bengtson, Vern, Kim, Kyong-Dong, Meyers, George C. & Eun, Ki-Soo, eds. 2000).
72 Ellen Davis, Who Are You, My Daughter? Reading Ruth through Image and Text 17 (2003).
73 Tikva Frymer-Kensky, Reading the Women of the Bible 258, 269, 271 (2000).
74 Id. at 274–82.
75 A qualitative study of caregiving stepmothers reports that “although half of respondents included a stepfamily member in their positive networks, stepchildren comprised the largest group (35%) in the negative networks.” Sherman, Carey Wexler, Webster, Noah J. & Antonucci, Tony C., Dementia Caregiving in the Context of Late-Life Remarriage: Support Networks, Relationship Quality, and Well-Being, 75 Journal of Marriage and Family 1149 (2013); see Brown & Lin, supra note 48; Seltzer, Judith A. & Bianchi, Suzanne M., Demographic Change and Parent-Child Relationships in Adulthood, 39 Annual Review of Sociology 275 (2013).
76 Of course, our respondents volunteered to talk about their caregiving experiences, so they do not provide the basis for general conclusions about caregiving. Nonetheless, given statistics on the number of people providing care for elders, they were not atypical.
77 These activities are emphasized in the literature on how to manage the provision of care. E.g., Morris, infra note 220 (numerous chapters within each of these categories); Nancy L. Mace & Peter V. Rabins, The 36-Hour Day: A Family Guide to Caring for People Who Have Alzheimer Disease, Related Dementias, and Memory Loss (5th ed. 2011) (same as chapters on intrafamilial relationships and the effect on the caregiver of parent's dementia).
78 See Gallanis, Thomas P. & Gittler, Josephine, Family Caregiving and the Law of Succession: A Proposal, 45 University of Michigan Journal of Law Reform 761, 763 (2012).
79 Scholars note that males tend to assist with instrumental activities of daily living whereas females tend to assist with activities of daily living, which are more vulnerable and demand more time each day. Laditka, James N. & Laditka, Sarah B., Adult Children Helping Older Parents: Variations in Likelihood and Hours by Gender, Race and Family Role, 23 Research on Aging 429, 430 (2001).
80 Blidstein, supra note 20, at 10.
81 The Book of Concord, supra note 24, at 380.
82 Catechism of the Catholic Church: The Duties of Family Members, http://www.vatican.va/archive/ENG0015/_INDEX.HTM (last visited Mar. 4, 2014).
83 Of the sixty-two interviews, the types of professional support accessed included hospice home care (seven interviewees), paid sitters (one interviewee whose mother had been nonresponsive for more than five years before her death and whose spouse cared for her at home), and nursing home residence (three interviewees). On the dilemmas of providing care within the family and commodifying it, see Arlie Russell Hochschild, The Outsourced Self: Intimate Life in Market Times (2012); Michael J. Sandel, What Money Can't Buy: The Moral Limits of Markets (2012). The Congressional Budget Office reports in Rising Demand for Long-Term Services and Supports for Elderly People, that “[t]he total value of long-term services [LTSS] and supports for elderly people, including the estimated economic value of informal (or donated) care, exceeded $400 billion in 2011 … . Expenditures for institutional care—provided in skilled nursing facilities, nursing homes, and nursing facilities located in continuing care retirement communities—totaled $134 billion in 2011, or about 31 percent of LTSS expenditures. Expenditures for home- and community-based service providers, such as home-health and personal-care agencies and adult day care providers, totaled $58 billion, or less than half of the amount spent for institutional care. Informal care, which is usually provided by family members and close friends, accounts for more than half of the total economic value of long-term services and supports. The economic value of informal care in 2011 was about $234 billion … .” Congressional Budget Office, Rising Demand for Long-Term Services and Support for Elderly People 10 (2013), http://www.cbo.gov/sites/default/files/44363-LTC.pdf (last accessed October 8, 2014).
84 This fact did not surprise us, considering “65.7 million caregivers make up 29% of the U.S. adult population providing care to someone who is ill, disabled or aged.” National Alliance for Caregiving & AARP, supra note 10.
85 Respondent XF49, interviewed April 11, 2012.
86 Respondent IF8, interviewed January 10, 2012.
87 Respondent VM47, interviewed March 15, 2012. One finding that surprised us was the high level of practical support offered by the dying parent's ex-spouse. Nine out of the forty single or remarried parent deaths included the support or involvement of the ex-spouse. Five ex-spouses played an active, hands-on role with both the grown child and the dying parent by sitting with the dying ex-spouse, regularly making food, and even playing a decision-making role after death; two were present at the time of death; and four played an active hands-on role with the grown child but a more tangential role with the dying ex-spouse. Their assistance, which was not expected by the grown children, made compliance with the honor commandment more feasible for grown children caring for a single parent. See, e.g., respondent HM33, interviewed January 28, 2012.
88 Theme B serves as the basis for Naomi Cahn and Amy Ziettlow, Law, Spirituality, and the Constitution at the End of Life (unpublished paper 2015) (on file with the authors) that explains the types of surrogate decisions made by the respondents. All sixty-two deaths, excluding six who died suddenly, required numerous decisions made jointly or in full for the seriously ill parent or stepparent. This paper is limited to offering examples of how the honor commandment was interpreted with surrogate decision making being one of several themes.
89 All sixty-two respondents had experienced the death of a parent figure. The average age of the deceased was sixty-two years. Of the fifty-six deaths (we interviewed six sibling pairs), twenty-three died in the hospital, thirteen died suddenly at home, nine died with hospice care at home, five died in a hospice inpatient unit setting, and four died in a nursing home setting. Excluding the sudden deaths, all other deaths entailed both jointly made decisions between the grown children and the parent and complete surrogate decisions made by the grown child or designated next of kin.
90 Respondent EM30, interviewed January 17, 2012.
91 Douglas R. White, Kinship, Class, and Community, 18 World Cultures eJournal (2011), http://escholarship.org/uc/item/5qb5z783.
92 The biblical term “kinsman-redeemer” or “goel” can be defined as “one who delivers or rescues” or “redeems property or persons.” Although we do not delve into this biblical concept, most biblical scholars point to Genesis 48:16, Exodus 6:6, Leviticus 25:25–28, 47–55, and Jeremiah 32:6–9. See generally, Donald A. Leggett, The Levirate and Goel Institutions in the Old Testament: With Special Attention to the Book of Ruth (1974).
93 See, e.g., Institute of Medicine, Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life 2-1 (2014), http://www.iom.edu/Reports/2014/Dying-In-America-Improving-Quality-and-Honoring-Individual-Preferences-Near-the-End-of-Life.aspx (defining family “broadly to encompass spouses, blood relatives, in-laws, step-relatives, fiancés, significant others, friends, caring neighbors, colleagues, fellow parishioners or congregants, and other people with a personal attachment to the person with an advanced serious illness” in order to reflection shifting notions of next of kin).
94 Respondent AF26, interviewed December 7, 2011.
95 See supra n. 88.
96 Respondent YM24, interviewed November 29, 2011.
97 Respondent RM43, interviewed March 1, 2012.
98 Respondents KF36, interviewed February 16, 2012; IF8, interviewed January 10, 2012; and JF9, interviewed November 5, 2011.
99 Respondent HF7, interviewed October 26, 2011.
100 Lawrence H. Ganong & Marilyn Coleman, Changing Families, Changing Responsibilities: Family Obligations Following Divorce and Remarriage (2009). Ganong and Coleman present thirteen studies they conducted on elder care and stepfamilies. Overall, the quality of the relationship determined the level of care perceived by survey respondents to be owed to the aging stepparent.
101 Respondent RM43, interviewed March 1, 2012.
102 We did not formally survey specific demographic data points but drew general observations based on autobiographical information shared in the interview, such as education history and current vocation, as well as family information published in the obituary, such as date of birth, spouse, and siblings. We also used interviewer observation to draw broad generalizations about income level.
103 Respondent HM33, interviewed January 28, 2012.
104 We explore these complications through the lens of the wealth transfer process involving the same sample set of respondents in Making Things Fair, 22 Elder Law Journal 325 (2015).
105 Maimonides, Mishneh Torah 10:7–14; see Abraham Joshua Heschel, The Insecurity of Freedom: Essays on Human Existence 42 (1967) (identifying the three pillars of the world as “learning,” “worship,” and “charity”).
106 Respondents GF57, interviewed April 24, 2012; GF32, interviewed March 20, 2012.
107 See, e.g., Suzanna de Baca, Can Caring for Your Aging Parents Hurt Your Career—Or Your Paycheck?, Time (Sept. 26, 2012). The Senior Care Cost Index reports that “nearly half (46%) of family caregivers spent more than $5,000 annually in caregiving costs.” Senior Cost Care Index, Caring.com (Sept. 2014), http://www.caring.com/research/senior-care-cost-index-2014%20 (last accessed October 8, 2014).
108 Respondent KF36, interviewed February 16, 2012.
109 Ann O'Leary, Protecting Workers and Their Families with Paid Family Leave and Caregiving Credits (2012), http://cdn.americanprogress.org/wp-content/uploads/issues/2012/04/pdf/gender_equity.pdf.
110 The MetLife Study of Caregiving Costs to Working Caregivers: Double Jeopardy for Baby Boomers Caring for Their Parents reported that “for women the total individual amount of lost wages due to leaving the labor force early and/or reduced hours of work because of caregiving responsibilities equals $142,693. The estimated impact of caregiving on lost Social Security benefits is $131,351. A very conservative estimated impact on pensions is approximately $50,000. Thus, in total, the cost impact of caregiving on the individual female caregiver in terms of lost wages and Social Security benefits equals $324,044. For men the total individual amount of lost wages due to leaving the labor force early and/or reduced hours of work because of caregiving responsibilities equals $89,107. The estimated impact of caregiving on lost Social Security benefits is $144,609. Adding in a conservative estimate of the impact on pensions at $50,000, the total impact equals $283,716 for men, or $303,880 for the average male or female caregiver 50+ who cares for a parent.” The MetLife Study of Caregiving Costs to Working Caregivers: Double Jeopardy for Baby Boomers Caring for Their Parents (June 2011), https:// www.metlife.com/assets/cao/mmi/publications/studies/2011/Caregiving-Costs-to-Working-Caregivers.pdf.
111 See Lee, Yeonjung et al. , The Vicious Cycle of Parental Caregiving and Financial Well-being: A Longitudinal Study of Women, 70 The Journals of Gerontology Psychological Sciences and Social Sciences 425 (2015). Lee chronicles the long-term economic effects on women who choose to be elder caregivers. In our sample set, nineteen women took time off or worked with an employer to adjust work schedules to accommodate caregiving duties. Proximity to the parent (or the parent living with the grown daughter) helped in making care more convenient to provide. That said, all care situations were relatively short term, less than six months, and thus the financial burdens were limited.
112 One-third of respondents used “respect” to define what honor means.
113 Several respondents explicitly observed that they were more motivated to honor a parent if the parent had “acted like a parent,” or treated them with respect. Respondent CM3, interviewed October 11, 2011.
114 Respondents PF41, interviewed February 24, 2012; KF10, interviewed October 31, 2011; GF32, interviewed February 2, 2012; and NF13, interviewed October 27, 2011.
115 Respondent DM55, interviewed April 14, 2012.
116 Hilde Lindemann Nelson & James Lindemann Nelson, Frail Parents, Robust Duties, 1992 Utah Law Review 747, 751 (1992).
117 For discussion of the legal obligations children owe parents, see infra notes 165–187 et seq.
118 Margaret F. Brinig, The Family Franchise: Elderly Parents and Adult Siblings, 1996 Utah Law Review 393, 420 (1996).
119 See Fishbane, supra note 15, at 140.
120 Respondents LF37, interviewed February 1, 2012; VF21, interviewed November 19, 2011; and PF15, interviewed November 1, 2011.
121 For many, God's commands were to be followed simply because God commanded. Some respondents believed that God chose these people to be their parents, thus honoring a parent was also a response to a choice made by God. Some respondents found motivation in the transactional tenor of the commandment that ties fulfillment of the command to a divine promise and failure to a divine curse. Many respondents noted that it is the only commandment that has a promise attached. One respondent shared, “We definitely were raised to honor our father and mother. I do believe that your days will be long for that. And I think that's the reason why I still reached out to him … even when he met his new wife, I supported him. I was there. I did consider him my father. He did raise me. I did not want to disappoint God, so I had to just follow through with still honoring.” Respondent GF57, interviewed April 24, 2012. Failing to fulfill the commandment was believed to lead to a curse, like one respondent who shared that “God's going to cut your days short … your blessing going to be blocked forever if you don't honor them. Gotta take care of mom and dad.” Respondent QM42, interviewed February 15, 2012.
122 Parents legally remain parents until their rights are terminated. Thus, for example, regardless of their behavior, parents are legally entitled to inherit from their children. Nonetheless, in partial recognition that the quality of parenting should impact parents’ expectations from their children, some states, and the Uniform Probate Code, provide that parents whose rights could have been terminated will not be able to inherit. Uniform Probate Code § 2–114 (2008); Spivack, Carla, Let's Get Serious: Spousal Abuse Should Bar Inheritance, 90 Oregon Law Review 247, 302 (2011).
123 None of our respondents reported physically abusive behavior.
124 Respondent UM46, interviewed March 8, 2012, said, “Honor your father and mother—I agree with it, but what do you do when you become an adult yourself? I think that that's written with the assumption that your parents are always going to act like parents. But when they act like kids, what do you do? If they do something immature or wrong. If your father goes and murder [sic] somebody, are you still going to back him? That's kind of how I looked at it. So I totally believe it, but I mean there's not two sides of the coin but both ends have to hold up their bargain. Honor your father, if he's being a father.”
125 Respondent JF9, interviewed November 5, 2011.
126 For a further discussion of caregiver coping mechanisms, see Fishbane, supra note 15, at 152.
127 Respondents CF28, interviewed January 14, 2012; GM60, interviewed April 26, 2012; CM3, interviewed October 24, 2011; GM60, interview April 26, 2012; WF48, interviewed April 11, 2012; and HF7, interviewed October 26, 2011. Estrangements also involved incarceration. See, e.g., Genty, Philip, Moving Beyond Generalizations and Stereotypes to Develop Individualized Approaches for Working with Families Affected by Parental Incarceration, 50 Family Court Review 36, 43 (2012).
128 Respondent TF19, interviewed November 12, 2011. Gilbert Meilaender reflects on the ordering of loves from the universal to the particular and from the particular to the universal as implied in the Honor Commandment in Love, Particular and Universal: A Christian Perspective on the Ten Commandments, Mosaic, June 1, 2013, available at http://mosaicmagazine.com/essay/2013/06/the-ten-commandments/.
129 Respondents IF8, interviewed January 10, 2012; KF36, interviewed February 16, 2012; CM3, interviewed October 24, 2011.
130 Administration on Aging, Department of Health and Human Services, Statistics/Data, National Center on Elder Abusehttp://www.ncea.aoa.gov/Library/Data/index.aspx#problem (last visited Mar. 5, 2014). For discussion of legal aspects of elder abuse, see Kohn, supra note 8; Kohn, Nina A., Elder (In)Justice: A Critique of the Criminalization of Elder Abuse, 49 American Criminal Law Review 1 (2012); Haya El Nasser, As USA Grays, Elder Abuse Risk and Need for Shelters Grow, USA Today (Jan. 10, 2012), http://www.usatoday.com/news/nation/story/2012-01-10/elder-abuse-shelters/52488726/1.
131 Lawrence H. Ganong & Marilyn Coleman, Stepfamily Relationships: Development, Dynamics, and Interventions (2004).
132 Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601–54, 2612(a)(1) (2012).
133 Family and Medical Leave Act, U.S. Department of Labor, http://www.dol.gov/whd/fmla/ (last visited Mar. 5, 2014). The Labor Department defines a parent as “a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a child. This term does not include parents in law.” Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act, U.S. Department of Labor (Aug. 2013), http://www.dol.gov/whd/regs/compliance/whdfs28f.pdf . For an overview of FMLA coverage, see Guide to the Family and Medical Leave Act (FMLA): Questions and Answers, National Partnership for Women & Families (2014), http://www.nationalpartnership.org/research-library/work-family/fmla/guide-to-fmla.pdf.
134 Brown v. J.C. Penney Corp., 924 F. Supp. 1158, 1162 (S.D. Fl. 1996); see Pearce, John A. II & Kuhn, Dennis R., Managers’ Obligations to Employees with Eldercare Responsibilities, 43 University of Richmond Law Review 1319, 1334–35 (2009); Yang, Y. Tony & Gimm, Gilbert, Caring for Elder Parents: A Comparative Evaluation of Family Leave Laws, 41 Journal of Law, Medicine, and Ethics 501 (2013); Kroll, Debra H., To Care or Not to Care: The Ultimate Decision for Adult Caregivers in a Rapidly Aging Society, 21 Temple Political and Civil Rights Law Review 403, 429–32 (2012); Williams, Joan C. & Pinto, Consuela A., Family Responsibilities Discrimination: Don't Get Caught Off Guard, 22 Labor Lawyer 293, 325–26 (2007).
135 S. Rep. No. 103–3, at 6–7 (1993).
136 The Family and Medical Leave Act of 1993, § 2, U.S. Department of Labor, http://www.dol.gov/whd/regs/statutes/fmla.htm (last visited Mar. 6, 2014).
137 Id. at title II. The 2012 report does not separate leave to care for a child (other than leave around the time of birth), spouse, or parent from other kinds of leave. Based on an earlier report, the Labor Department estimates that 10.6% of all leaves are to care for an ill parent. Chapter 3: Use of the FMLA, 2000 Survey, table 3.8, U.S. Department of Labor, http://www.dol.gov/whd/fmla/chapter3.htm (last visited Mar. 6, 2014).
138 Jacob Alex Klerman, Kelly Daley & Alyssa Pozniak, U.S. Department of Labor, Family and Medical Leave in 2012: Executive Summary ii (2013), http://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Executive-Summary.pdf.
139 For example, Respondent YM24, interviewed November 29, 2011, explained how he was able to be at the hospital for the final two weeks of his father's life: “And I had so much comp time and leave built up at the library. I work overtime so much that I wind up with an ungodly amount of leave … and my supervisor he said, ‘Take the time you need. You got it. Do what you need to do.’ And so I wound up being off for about two weeks, just being at the hospital and being back. I had the time, and they understood. They gave me that—they said, ‘Don't worry about what's going on here. We got it covered. You put us in a good position. We're good.’”
140 Jacob Alex Klerman, Kelly Daley & Alyssa Pozniak, U.S. Department of Labor, Family and Medical Leave in 2012: Technical Report 17–18 (2014), http://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Technical-Report.pdf.
141 29 U.S.C. § 2611(11) (2012).
142 Smith, supra note 61, at 394 (pointing out the potentially competing concerns of caregivers who need leave for long, degenerative illnesses and of businesses, which depend on their employees).
143 Wise, Katie, Note, Caring for Our Parents in an Aging World: Sharing Public and Private Responsibility for the Elderly, 5 New York University Journal of Legislation and Public Policy 563 (2002); Morris, Jennifer L., Note, Explaining the Elderly Feminization of Poverty: An Analysis of Retirement Benefits, Health Care Benefits, and Elder Care-Giving, 21 Notre Dame Journal of Law, Ethics and Public Policy 571, 595 (2007).
144 Amalavoyal V. Chari, John Engberg, Kristin N. Ray & Ateev Mehrotra, The Opportunity Costs of Informal Elder-Care in the United States: New Estimates from the American Time Use Survey, Health Services Research (Oct. 4, 2014), doi: 10.1111/1475-6773.12238. Annual costs for Medicare and Medicaid in 2013 were taken from the Center on Budget and Policy Priorities, Policy Basics: Where Do Our Federal Tax Dollars Go?, Policy Briefs (March 11, 2015), http://www.cbpp.org/sites/default/files/atoms/files/4-14-08tax.pdf.
145 The MetLife Juggling Act Study: Balancing Caregiving with Work and the Costs Involved, Metropolitan Life Insurance Company (Nov. 1999), http://www.caregiving.org/data/jugglingstudy.pdf.
147 See Department of the Treasury, Internal Revenue Service, Publication 502, Cat. No. 15002Q “Medical and Dental Expenses” (2004), available at http://www.irs.gov/pub/irs-pdf/p502.pdf.
148 Klerman, Daley & Pozniak, supra note 138, at ii.
149 State Family and Medical Leave Laws That Are More Expansive Than the Federal FMLA, National Partnership for Women and Families, http://go.nationalpartnership.org/site/DocServer/StatesandunpaidFMLLaws.pdf?docID=968 (last visited Mar. 6, 2014).
150 See June Carbone & Naomi Cahn, Marriage Markets: How Inequality Is Remaking the American Family ch. 12 (2014).
151 Id. For example, Massachusetts allows an eligible employee to “accompany an elderly relative [defined as an individual related by blood or marriage at least sixty years old] of the employee to routine medical or dental appointments or appointments for other professional services related to the elder's care, such as interviewing at nursing or group homes.” Mass. Gen. Laws ch. 149, § 52D (2008).
152 See, e.g., Article 10—Sick Leave/Bereavement Leave, University of Washington Labor Relations, http://www.washington.edu/admin/hr/laborrel/contracts/925/contract/a10.html (last visited Mar. 6, 2014).
153 Chapter 5: Family and Medical Leave Policies and Practices of U.S. Establishments, table 5.3, U.S. Department of Labor, http://www.dol.gov/whd/fmla/chapter5.htm (last visited Mar. 6, 2014).
154 E.g., Cal. Health & Safety Code § 1418.8(c) (West 2013) (“a person with legal authority to make medical treatment decisions on behalf of a patient is a person designated under a valid Durable Power of Attorney for Health Care, a guardian, a conservator, or next of kin”).
155 The Conversation Project, http://theconversationproject.org/ (last visited April 28, 2015).
156 E.g., Anderson, Diana, Review of Advance Health Care Directive Laws in the United States, the Portability of Documents, and the Surrogate Decision Maker When No Document Is Executed, 8 National Academy of Elder Law Attorneys Journal 183 (2012); Fagan, Aimee R., An Analysis of the Convention on the International Protection of Adults, 10 Elder Law Journal 329, 347 (2002); Doron, Israel & Dayton, Kim, “Thinking Locally”: Law, Aging, and Municipal Government: Findings from a National Survey, 21 Temple Political and Civil Rights Law Review 365, 385 (2012).
157 See 45 C.F.R. § 164.500 (2013) (applicability of HIPAA regulations). Notwithstanding its legal protections for including “family members” as privy to the disclosure of health information, HIPAA is often misinterpreted. See, e.g., Paula Span, A Privacy Law Often Misinterpreted, New York Times (March 27, 2013), http://newoldage.blogs.nytimes.com/2013/03/27/a-privacy-law-often-misinterpreted/.
158 Patient Self Determination Act of 1990, Pub. L. No. 101–508, 104 Stat. 1338 (1990) (citing to the text of the actual bill, this act was passed as an amendment to the Omnibus Budget Reconciliation Act of 1990) (codified at 42 U.S.C. §1395cc (2012)).
159 The five wishes document can be found at http://www.agingwithdignity.org/five-wishes.php.
160 La. Rev. Stat. Ann. § 40:1299.53 (West 2013) (describing “persons … authorized and empowered to consent … to any surgical or medical treatment”).
161 Resources, studies, and POLST forms can be accessed at http://www.lhcqf.org/lapost/.
162 Alexia M. Torke et al., Scope and Outcomes of Surrogate Decision Making among Hospitalized Older Adults, 174 JAMA Internal Medicine 370 (2014).
163 McAdam, Jennifer L., Arai, Shoshana & Puntillo, Kathleen A., Unrecognized Contributions of Families in the Intensive Care Unit, 34 Intensive Care Medicine 1097, 1097–101 (2008).
164 “Next of kin” tends to be the plain English term for referring to a surrogate decision maker while “surrogate” tends to be the term in the legal and medical fields. The surrogate and the next of kin may be the same person or different people. Connecticut law distinguishes between the authority of a health care surrogate (“representative” in the statute) and the next of kin: “In the determination of the wishes of the patient, the attending physician shall consider the wishes as expressed by a document executed in accordance with sections 19a-575 and 19a-575a, if any such document is presented to, or in the possession of, the attending physician at the time the decision to withhold or terminate a life support system is made. If the wishes of the patient have not been expressed in a living will the attending physician shall determine the wishes of the patient by consulting any statement made by the patient directly to the attending physician and, if available, the patient's health care representative, the patient's next of kin, the patient's legal guardian or conservator, if any, any person designated by the patient in accordance with section 1–56r and any other person to whom the patient has communicated his wishes, if the attending physician has knowledge of such person.” Conn. Gen. Stat. Ann. § 19a-571 (West 2015).
165 E.g., 23 Pa. C.S.A. § 4603 (2014); Pearson, supra note 8, at 27; Katherine C. Pearson, Family (Filial) Responsibility/Support Statutes in the United States, http://law.psu.edu/_file/Pearson/FilialResponsibilityStatutes.pdf (last updated Mar. 5, 2012); Harkness, Donna, What Are Families for? Re-Evaluating Return to Filial Responsibility Laws, 21 Elder Law Journal 305 (2014).
166 Kline, Terrance A., A Rational Role for Filial Responsibility Laws in Modern Society, 26 Family Law Quarterly 195, 196 (1992). Five states never enacted these statutes.
167 See generally Daniel R. Mandelker, Family Responsibility under the American Poor Laws: I, 54 Michigan Law Review 497 (1956) (surveying states’ filial responsibility laws and their origins).
168 See Moskowitz, Seymour, Filial Responsibility Statutes: Legal and Policy Considerations, 9 Journal of Law & Policy 709, 711 (2001); Ross, Allison E., Note, Taking Care of Our Caretakers: Using Filial Responsibility Laws to Support the Elderly Beyond the Government's Assistance, 16 Elder Law Journal 167, 172 (2008).
169 William Blackstone, Commentaries on the Laws of England (1765–1769) book 1, ch. 16, § I.3; Moskowitz, supra note 168, at 711.
170 See, e.g., Hendrik Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age 33 (2012); Kelly, Daniel B., Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, 82 Fordham Law Review 1125, 1185 (2013).
171 See Ross, supra note 168, at 173; Moskowitz, supra note 168, at 715. The balance between private and public responsibility has assumed center stage in ongoing debates over the deficiencies in the US social safety net, particularly with financial depressions/recessions as a backdrop. See, e.g., Nancy J. Altman, The Battle for Social Security: From FDR's Vision to Bush's Gamble 29 (2005); Weaver, Jessica Dixon, Grandma in the White House: Legal Support for Intergenerational Caregiving, 43 Seton Hall Law Review 1, 74 (2013).
172 See Pearson, supra note 8, at 275.
173 See Moskowitz, supra note 168, at 717.
175 See Pearson, supra note 8, at 275.
176 Id. Pearson notes that, at one point, the federal government precluded states from including a child's resources in determining a parent's eligibility for Medicaid, and prevented states from requiring children to reimburse the government for Medicaid costs; even though the reimbursement policy has changed, “there has been little appetite in most states’ welfare agencies to tie Medicaid to filial support.” Id. at 288.
177 See Edelstone, Sharon Frank, Filial Responsibility: Can the Legal Duty to Support Our Parents Be Effectively Enforced, 36 Family Law Quarterly 501, 504–07 (2002).
178 See, e.g., Swoap v. Superior Court of Sacramento County, 516 P.2d 840 (Cal. 1973) (upholding California's filial responsibility statute against an equal protection claim that the statute unconstitutionally distinguished between individuals based on wealth and ancestry).
179 See Mari Park, Comment, The Parent Trap: Health Care & Retirement Corporation of America v. Pittas, How It Reinforced Filial Responsibility Laws and Whether Filial Responsibility Laws Can Really Make You Pay, 5 Estate Planning & Community Property Law Journal 441, 452–53 (2013); Beth Baker, Paying for Mom: Little-Known Laws Force Families to Fund Parents’ Care, AARP.org (Jan. 2009).
180 Health Care & Retirement Corporation of America v. Pittas, 46 A.3d 719 (Pa. Super. Ct. 2012), rehearing denied, 2012 Pa. Super. LEXIS 1587 (Pa. Super. Ct. 2012); Harkness, supra note 165, at 344; Park, supra note 179, at 446–48; Who Will Pay for Mom's or Dad's Nursing Home Bill? Filial Support Laws and Long-Term Care, Forbes (Feb. 3, 2014), http://www.forbes.com/sites/northwesternmutual/2014/02/03/who-will-pay-for-moms-or-dads-nursing-home-bill-filial-support-laws-and-long-term-care/; Liz Weston, Will You Get Dad's Nursing-Home Bill? MSN Money (Aug. 20, 2012), http://web.archive.org/web/20120721171346/http://money.msn.com/retirement-plan/will-you-get-dads-nursing-home-bill-weston.aspx.
181 R.I. Gen. Laws Ann. § 15-10-4 (West 2013).
182 But see Savoy v. Savoy, 641 A.2d 596 (Pa. Super. Ct. 1994) (holding, in a suit filed by a mother against her son, that the son was obligated to financial support of $125 per month).
183 In re Skinner, 2014 WL 5033258 (Bankr. E.D. Pa. 2014).
184 Government Suspends Controversial Program to Recover Money from Adult Children of Dead Taxpayers, FoxNews.com (April 14, 2014), http://www.foxnews.com/politics/2014/04/14/social-security-administration-suspends-program-to-recover-money-from-adult/.
185 Susan L. Brown & I-Fen Lin, quoted in Brigid Schulte, Till Death Do Us Part? No Way: The Rise in Gray Divorce, The Washington Post (October 8, 2014), available at http://www.washingtonpost.com/blogs/she-the-people/wp/2014/10/08/till-death-do-us-part-no-way-gray-divorce-on-the-rise/?utm_content=buffer0da25&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer. The global rise in “silver separation” will also shape the international costs of elder care. “Divorce in Twilight” or “Silver Separation” Sees Similar Trend in S. Korea and UK, KoreaBizWire.com (October 30, 2014), http://koreabizwire.com/divorce-in-twilight-or-silver-separation-sees-similar-trend-in-s-korea-and-uk/22822.
186 E.g., Ganong & Coleman, supra note 100, chapters 5 and 6.
187 Id. Ganong and Coleman are among the few researchers to study the intersection between elder care and remarriage. Their work (this book covers thirteen of their studies) asked survey respondents to predict what they thought various family members should do or were obligated to do in different scenarios. In contrast, our interviews asked caregivers about what they had already done or did not do.
188 E.g., Park, supra note 179, at 456–57.
189 A variety of different regulations and laws deal with different aspects of elder abuse, ranging from state adult protection statutes to domestic violence laws to legal requirements that apply to institutional facilities, such as nursing homes, that serve the elderly.
190 E.g., Ariz. Rev. Stat. §§ 46-451–46-459 (2014); Fla. Stat. §§ 415.101–415.113 (2014). The Older Americans Act, 42 U.S.C. §§ 3001–3058ff. (2014), sets out definitions of elder abuse and authorizes federal funding for the National Center on Elder Abuse. Unlike filial responsibility statutes, they do not impose obligations to care; and, unlike family and medical leave acts or contracts for care, they do not provide support for care. Because they neither require nor support care, and because they apply to non-family members, we address them only briefly.
191 See Kohn, supra note 8, at ch. 7; Madow, Daniel L., Comment, Why Many Meritorious Elder Abuse Cases Are Not Litigated in California, 47 University of San Francisco Law Review 619 (2013), available at http://www.usfca.edu/uploadedFiles/Destinations/School_of_Law/Academics/Co-Curricular_Programs/(7)SAN47-3Madow.pdf.
192 There is also the problem of elder abuse by one spouse against another in intact couples. Adult children may have to deal with this issue, too, possibly by arranging for their parents to live apart. See Abramson, Betsy J., Mansfield, Marsha M. & Raymond, Jane A., Wisconsin's Individual-at-Risk Restraining Order: An Analysis of the First Thirty Months, 18 Elder Law Journal 247, 250 (2011).
193 Freedman, Amelia Devin, Naomi's Experience of God and Its Treatment in the Book of Ruth, 23 Proceedings 29 (2003); Reiss, Moshe, Ruth and Naomi: Foremothers of David, 35 Jewish Bible Quarterly 192 (2007).
194 On the state's role in supporting families, see, e.g., Fineman, supra note 21; Eichner, supra note 21; Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (2014).
195 Clements, J. M., Patient Perceptions on the Use of Advance Directives and Life Prolonging Technology, 26 American Journal of Hospice and Palliative Medicine 270, 270–76 (2009). Clements concludes that there is a disconnect between valuing health-care planning and actually completing it. “Of 306 participants, 77 (25.2%) had a durable power of attorney and 45 (14.7%) had living wills. Of these, 226 (73.9%) responded that it was important to make healthcare decisions known to their doctor. Only 36 (15.9%) had done so.” Id. at 270.
196 For example, although HIPAA provides important protections for patient privacy, its interpretation may disadvantage family caregivers. Caregiver contracts constitute another source of concern. See, e.g., Knox, Sheena J., Note, Eldercare for the Baby-Boom Generation: Are Caregiver Agreements Valid? 45 Suffolk University Law Review 1271 (2012).
197 The FAMILY Act of 2013 (S. 1810, H.P. 3712, https:// www.congress.gov/bill/113th-congress/senate-bill/1810; Sarah Jane Glynn & Jane Farrell, Family Matters: Caregiving in America, Center for American Progress (Feb. 5, 2014).
198 The FAMILY Act of 2003 (S. 1810, H.P. 3712); Glynn & Farrell, supra note 197.
199 See Kitchener, Martin et al. , Institutional and Community-Based Long-Term Care: A Comparative Estimate of Public Costs, 22 Journal of Health & Social Policy 31 (2006).
200 Joan C. Williams, Robin Devaux, Patricija Petrac & Lynn Feinberg, AARP Public Policy Institute, Protecting Family Caregivers from Employment Discrimination 3–4 (2012), available at http://www.aarp.org/content/dam/aarp/research/public_policy_institute/health/protecting-caregivers-employment-discrimination-insight-AARP-ppi-ltc.pdf.
201 The Social Security Caregiver Credit Act, sponsored by Rep. Nita Lowey (D-NY), would institute a credit so that caregiving hours would be included in calculating an individual's Social Security benefit. Anyone who spends at least 80 hours a month caring for family members, including children under the age of twelve, a senior in need of intensive care, or a chronically disabled relative would be eligible to claim the credit, for up to five years. See Social Security Caregiver Credit Act, H.R. 5024, 113th Cong. (2014), available at https:// www.congress.gov/bill/113th-congress/house-bill/5024.
202 Three states, California, New Jersey, and Rhode Island, do require paid leave. See Carbone & Cahn, supra note 150. This may be an issue where states lead federal policy.
203 U.S. Department of Labor, Administrator's Interpretation No. 2010-3 (June 22, 2010), http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.pdf.
204 See Smith, supra note 61.
205 See, e.g., Bryce Covert, Businesses Actually Like This State's Paid Family Leave Act Policy, ThinkProgress.org (June 20, 2014), http://thinkprogress.org/economy/2014/06/20/3451378/new-jersey-paid-family-leave-business/; Eileen Appelbaum & Ruth Milkman, Center for Economic and Policy Research, Leaves That Pay: Employer and Worker Experiences with Paid Family Leave in California 3 (2011), http://www.cepr.net/documents/publications/paid-family-leave-1-2011.pdf.
206 Klerman, Daley & Pozniak, supra note 138, at iii.
207 Some have suggested a Social Security type program for family leave. Carbone & Cahn, supra note 150; Guide to the Family Medical Leave Act, supra note 133; Lee & Tang, supra note 2.
208 See, e.g., Sudore, Rebecca L. & Fried, Terri, Redefining the “Planning” in Advance Care Planning: Preparing for End-of-Life Decision Making, 153 Annals of Internal Medicine 256 (2010); Torque, A. M. et al. , Scope and Outcomes of Surrogate Decision Making among Hospitalized Older Adults, 174 Journal of American Medical Association 370 (2014), http://www.ncbi.nlm.nih.gov/pubmed/24445375; Silveira, Maria J. et al. , Advance Directive Completion by Elderly Americans: A Decade of Change, 62 Journal of the American Geriatrics Society 706 (2014).
209 E.g., Morhain, Dan K. & Pollack, Keshia M., End-of-Life Care Issues: A Personal, Economic, Public Policy, and Public Health Crisis, 103 American Journal of Public Health 8 (2013); Paula Span, Why Do We Avoid Advance Directives?, New York Times, Apr. 20, 2009, http://newoldage.blogs.nytimes.com/2009/04/20/why-do-we-avoid-advance-directives/.
210 Institute of Medicine, supra note 93, at 3-52. Chapter three of the report is especially helpful in analyzing the intricacies of surrogate decision making at the end of life. Table 3-3 at 3-26 offers the “Summary of Patient and Family Factors in End-of-Life Decision-Making among Individuals of Different Races, Ethnicities, and Cultures” but does not include changes in family structure.
211 See, e.g., Kohn, supra note 8.
212 For example, “30% of all Medicare expenditures are attributed to the 5% of beneficiaries that die each year, with 1/3 of that cost occurring in the last month of life.” A. M. Garber, T. A. MaCurdy & M. C. McClellan, Medical Care at the End of Life: Diseases, Treatment Patterns, and Costs, in 2 Frontiers in Health Policy Research (A. M. Garber ed., 1999) (quoting Michael Bell, Why 5% of Patients Create 50% of Health Care Costs, Forbes (Jan. 10, 2013), http://www.forbes.com/sites/michaelbell/2013/01/10/why-5-of-patients-create-50-of-health-care-costs/).
213 For example, as reported in Institute of Medicine, supra note 93, at 2-40, there are sources of support that are limited in scope: “The National Family Caregiver Support Program, established by the Older Americans Act, as amended in 2000, has helped increase awareness of the importance of family caregivers by establishing the caregiver as a client and providing family counseling, support groups, training and respite care. The Affordable Care Act includes multiple references to caregivers and may help them by promoting models of care that prevent or facilitate transitions between care settings. Medicaid's Cash and Counseling program, available in about 15 states, permits beneficiaries to pay family members modest sums for home care services in some cases. And family members of seriously injured veterans (who served after September 11, 2001) may receive a stipend, comprehensive training, medical services, and other services under the VA Program of Comprehensive Assistance to Family Caregivers.”
214 E.g., Social Security Caregiver Credit Act of 2011, H.R. 2290, 112th Cong. (2011).
215 Jankowski, John, Caregiver Credits in France, Germany, and Sweden: Lessons for the United States, 71 Social Security Bulletin 61 (2011), http://www.ssa.gov/policy/docs/ssb/v71n4/v71n4p61.pdf.
216 Center for Community Change & Older Women's Economic Security Task Force, National Council of Women's Organization and Center for Community Change, Expanding Social Security Benefits for Financially Vulnerable Populations 12–13 (2013), http://www.retirementsecurityvoices.org/proactive-agenda-to-strengthen-social-security/report-expanding-social-security-benefits-for-financially-vulnerable-populations/; Shelley I. White-Means & Rose M. Rubin, National Academy of Social Insurance (NASI), Social Security Innovative Policy Program, Retirement Security for Family Elder Caregivers with Labor Force Employment 5–7 (2008), http://www.nasi.org/usr_doc/White-Means_and_Rubin_January_2009_Rockefeller.pdf.
217 See Caregiver Corps Act of 2014, S. 2842, 113th Cong. (2014). “The bill would give the Secretary of Health and Human Services the authority to develop a toolkit and guidance for local entities to establish and implement local Caregiver Corps programs giving local faith-based groups or volunteer programs the tools to train volunteers so that they are prepared and understand how they can best support an older adult or person with a disability.” Press Release, Senator Robert P. Casey, Jr., Casey Unveils National Caregiver Corps Plan to Aid Aging Residents in Southwestern PA and Their Families Who Provide Care (Aug. 21,2014), http://www.casey.senate.gov/newsroom/releases/casey-unveils-national-caregiver-corps-plan-to-aid-aging-residents-in-southwestern-pa-and-their-families-who-provide-care; Caregiver Corps Act of 2014, S. 2842, 113th Cong., § 3 (2014).
218 See, e.g., Fineman, supra note 21.
219 The financial costs of caregiving are tracked. See Feinberg et al., supra note 41, at 1 (reporting that in 2009 about 42.1 million family caregivers provided $450 billion in unpaid care). The emotional and physical costs are also tracked and are exacerbated by conflicted histories. See Haley, W. E., Roth, L., Howard, G. & Stafford, M. M., Caregiving Strain Estimated Risk for Stroke and Coronary Heart Disease among Spouse Caregivers: Differential Effects by Race and Sex, 41 Stroke 331 (2010); Navaie-Waliser, M., et al. , When the Caregiver Needs Care: The Plight of Vulnerable Caregivers, 92 American Journal of Public Health 409 (2002); Pinquart, M. & Sörensen, S., Ethnic Differences in Stressors, Resources, and Psychological Outcomes of Family Caregiving: A Meta-Analysis, 45 The Gerontologist 90 (2005); Vitaliano, P.P., Scanlon, Z. & Zhang, H.M., Is Caregiving Hazardous to One's Physical Health? A Meta-Analysis, 6 Psychological Bulletin 946 (2003).
220 A cursory review of the scholarship on caregiver abuse shows that a gap in knowledge exists. The self-help genre, including classic texts such as Virginia Morris, How to Care for Aging Parents (3d ed. 2014), does include “care for the caregiver.” Additional resources concerning support for caregivers can be found at the AARP Caregiving Resource Center, http://www.aarp.org/home-family/caregiving/, as well as the National Alliance for Caregiving, http://www.caregiving.org, or the National Family Caregivers Association, https:// www.caregiver.org/national-family-caregivers-association-nfca.
221 Thomas Long first introduced this concept of the commandments as descriptive of a flourishing society during a consultation of advisors for the Homeward Bound project held March 7, 2014.
222 A full discussion of such programs are beyond the scope of this paper. For examples, see James L. Brooks, The Unbroken Circle: A Toolkit for Congregations around Illness, End of Life and Grief (2009). The Duke University Center for Spirituality, Theology and Health is creating new resources for chaplains and faith communities engaged in aging and end of life care. For further exploration, see Amy Ziettlow & Naomi Cahn, Homeward Bound: Filial Responsibility in the 21st Century (forthcoming 2016). See also Amy Ziettlow, Three Reasons Clergy Need a Healthcare App, The Huffington Post (May 21, 2014).
This article is based on data from a study of generation X caregiving and grieving funded by the Lilly Endowment through the Institute for American Values. Many of the themes discussed here will be elaborated on in a symposium edited by Ziettlow and Cahn in volume 31, issue 3, of the Journal of Law and Religion (November 2016) and in Homeward Bound, slated for publication by Oxford University Press in 2016.
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