Can a nursing home receive your pension?
Parental maintenance: Children only pay an annual income of EUR 100,000 or more
At some point, most seniors will come to a point where they can no longer cope with everyday life on their own - they will need care. But care in old age is expensive! If long-term care insurance, pensions and assets do not cover the costs, the next of kin are called upon. This often means that children are responsible for their parents.
In many cases, the offspring take responsibility voluntarily and take care of the parents themselves. Or the parents can make early provision and take precautions in case the worst comes to the worst. For example, by selling their house and moving to facilities for elderly-friendly living. Nevertheless, the social welfare office often clarifies who has to pay for the maintenance of a person in need of care.
Since the beginning of 2020, children have had to look after their parents in need of care only pay maintenance thenwhen she is a Annual gross income of more than 100,000 euros to have. This limit was brought about by the Relief for Relatives Act, which came into force on January 1st of that year.
The result: If you have parents in need of care who cannot pay the costs themselves, the social welfare agency may write to you and ask that you disclose your income and assets.
Who is the discharge for?
This regulation with an annual gross amount of 100,000 euros applies to:
- Children who take care of parents their parents in need of care have to pay (parental support)
- But also for parents who care their dependent children have to pay (exception: minor children who receive benefits to help with livelihood according to SGB XII)
And only if the parents or children in need of care cannot cover the costs alone and receive benefits in accordance with SGB XII (Section 94 SGB XII).
Important: The social welfare office can only raise child support payments, not grandchildren. Siblings, cousins, uncles and aunts must also Not to be financially responsible for one another.
Who does the law not apply to?
The law with the 100,000 euro limit applies Notif spouses have to pay maintenance to each other. This happens when the spouse in need of care comes to the nursing home while the other stays at home. In this case, the spouse / life partner remaining at home must contribute to the home costs.
A Discharge is not provided here. The legislature means that marriage or partnership establishes a special mutual obligation. Therefore, maintenance must continue to be paid even if the income is below the 100,000 euro limit. To do this, the spouse or partner must use assets in addition to income.
The law describes § 90 SGB XII, however, a so-called protection of assets. This includes, among other things, a saving of 5000 euros. The same amount applies to the spouse / life partner. In the case of spouses / life partners, a total of 10,000 euros remains free of credit.
An appropriate amount that was invested for one's own funeral and grave maintenance within the framework of a so-called funeral provision contract is also deemed to be an appropriate amount.
Only when income and assets are insufficient does the social welfare office step in.
By the way: The social welfare office then pays the partner living in the home pocket money, which is 120.42 euros per month for the year 2021. This pocket money is adjusted annually on January 1st. In addition, there is a right to clothing assistance, the amount of which is regulated differently in the federal states. For this you have to submit an application to the social welfare office.
Who is obliged to provide parental maintenance?
If the pension, own assets and benefits from statutory and private long-term care insurance are not sufficient to pay the costs for the home or care services yourself, the welfare state first steps in and extends the costs. However, if the children have enough money, he then demands it back from them.
As a rule, it is not the parents themselves who claim the right to parental maintenance, but the social welfare provider.
- The social welfare office can only demand maintenance payments from persons who have an annual gross income of 100,000 euros or more and who are related to the person in need of assistance in the first degree (this only includes parents or children).
- Children-in-law are not related to their in-laws and are therefore not obliged to provide maintenance payments.
Parental support: no rule without exception
If the parents are guilty of so-called serious misconduct against the child, they have less or no maintenance entitlement. The times when you were still responsible for the child are particularly important. This can include, for example, cases of abuse or gross neglect - on the other hand, a broken contact is usually not enough.
How is the maintenance claim calculated?
The social welfare office only checks whether there is a maintenance obligation if there is a corresponding suspicion or indication. If the office writes to you with such a suspicion, you must disclose your income.
The maintenance claim of the parents against the children is calculated according to the provisions of civil law. If at least one child earns more than 100,000 euros, the amount of maintenance is calculated according to the relevant guidelines (e.g. Düsseldorf table).
If there are several siblings, at least one of whom has an annual gross amount of more than 100,000 euros, things get more complicated:
- In the first step, it is then calculated how much maintenance everyone would have to pay proportionally, taking into account their income and financial situation. The maintenance obligation is divided according to the children's financial possibilities - and not simply divided by the number of children. It is possible that children with high incomes would have to pay more maintenance than siblings who have less available.
- In the second step, it is then checked which sibling is even above the EUR 100,000 gross annual fee. Because the portion calculated in the first step only has to be paid by those who are also subject to the maintenance obligation. Some children may have to pay maintenance while their siblings are not required to do so.
What the parents still need in money for care, despite the possible maintenance of their children, is taken over by the social welfare office.
What does "annual gross income" include?
Your income may include more than just your wages or earnings. The total income (Section 16 SGB IV) can also include other income, e.g. from renting and leasing. So total income is calculated by adding all income together. Existing assets are not taken into account.
When calculating the total income, tax deductions such as the child allowance are not taken into account.
However, there are various ways of claiming expenses and thereby reducing income.
The calculation of the total income is always an individual case, so you should definitely seek legal advice if the social welfare office asks you to provide proof of your income.
What is the obligation to provide information?
- Parents 'obligation to provide information: In order to be sure whether and to what extent the parents' maintenance claim actually exists, they must provide their children with information about their financial circumstances.
- Obligation of children to provide information: Conversely, however, children are also obliged to provide information. In order to be able to calculate the maintenance claim of the parents, the social welfare office needs a detailed insight into their income and financial situation and possibly also that of the spouse.
What should be done if up until now maintenance had to be paid?
You do not need to take any further action. If you earn less than 100,000 euros, you will automatically no longer have to pay parental maintenance from January 1, 2020.
Only if the social welfare office has evidence to the contrary will it continue to examine a maintenance obligation. Otherwise it must assume that you do not exceed the annual income limit of 100,000 euros.
Can my parents waive payments?
- Many seniors do not want to burden their children financially and therefore do not want to demand parental support. However, they do not have this choice if they seek help for care services that they cannot pay for themselves. Parents cannot then take their children out of responsibility for maintenance payments. The state must demand maintenance if the offspring is obliged to provide maintenance.
- Severance payments or other agreements that reduce maintenance claims are also not effective.
- Parental maintenance can only be waived if the parents have accumulated reserves from previous maintenance payments.
A special problem: reclaiming donations
The law provides that impoverished people who gave something away in the last 10 years before they went into poverty are allowed to bring it back. The meaning is clear: this claim is intended to save them from losing their apartment or from having nothing to eat. As a rule, however, nobody claims this. Most people don't even know that they have this right.
However, if the state assists the impoverished person through social benefits - for example through help with care in the nursing home or inpatient help - it can assert this claim for reimbursement. He then demands the gift back from the recipient. This can even affect houses that have been given away, but also a granddaughter for whom the grandmother has saved a monthly amount over several years. Even such an amount saved in the last ten years has to be repaid according to a judgment of the OLG Celle from 2020. That means that the granddaughter has to repay the donated amounts.
Only if the donation is a so-called privileged donation is the donation excluded from the claim for repayment. The gift from the grandmother to the granddaughter could be such a gift - as a decency gift or a duty gift. However, according to the OLG Celle, these are not available in the specific case.
In contrast, the LG Aachen had seen a grandmother's pocket money payments as a gift of decency and rejected the claim in his case at the time.
The OLG Celle refers to this judgment of the LG Aachen. However, it emphasizes that the saving of a savings amount is to be assessed differently than the payment of a monthly pocket money.
This content was created by the joint editorial team in cooperation with the consumer centers North Rhine-Westphalia and Rhineland-Palatinate for the network of consumer centers in Germany.
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