MAINTENANCE OBLIGATION AND ACCOMMODATION OF THE ELDERLY

The consequences of the support obligation often arise when an elderly parent enters a care facility. Let's take stock of the situation.

The obligation to provide support is based on the Civil Code. This obligation originates from the relationship between children and their parents and other ascendants who are "in need". This includes children, grandchildren and great-grandchildren. This obligation is extended to sons- and daughters-in-law towards their father- or mother-in-law, but it is extinguished with the death of the spouse who established the relationship or with the death of the children born of the union. It is a reciprocal obligation from which the debtor may be totally discharged if the creditor has failed to fulfil his obligations towards him. The importance of this obligation is calculated according to the needs of the person to be helped and the financial capacity of the person or persons who must provide the help. This obligation may be revised according to the need for assistance and the situation of the caregivers.

Social aid, such as that granted for the accommodation of elderly people in an institution, is only granted if the applicant cannot meet his or her needs with his or her own resources and if those of his or her "obligated support persons" are not sufficient. Thus, the resources of the applicant are first called upon, then those of the person obliged to support him/her, before social assistance is granted. In other words, the solidarity of the community is only implemented after having called upon family solidarity.

It is up to the family court judge to assess whether the person asking for help is really in a situation where he/she cannot meet his/her needs. The judge will judge whether or not this situation is related to significant expenses that could have been avoided.

The judge will have to take into account the situation of each potential debtor (children, grandchildren, son-in-law or daughter-in-law) in order to determine his or her capacity to respond to the request for assistance. Thus, some may be exempted from this obligation if their own resources are limited. Children do not have a joint and several obligation among themselves. Thus, a child cannot be required to pay the share owed by one of his brothers or sisters.

The answer is no, since the judge assesses the ability of each debtor to pay according to his or her own resources and obligations. It may even happen that the needs of the person to be helped are not covered by the support obligation if the debtors do not have sufficient capacity to contribute.

The obligation of support is not granted in certain cases where the applicant has behaved in an unworthy manner: abandonment of the family, violence... The same applies to a child born from a first marriage to the new husband or wife of his or her parent.