Despite the very explicit words, the maintenance obligation turns out to be a rather complex notion for the relationship between seniors and their descendants. To put it simply, this is what is called, administratively, the contribution of families who are asked to participate financially in the care of their relatives when they can no longer do so due to insufficient financial resources. . If the legislation is precise, the application varies according to the departments and it amplifies family conflicts...
The Civil Code provides for the principle of maintenance obligation in France, via articles 205 to 207, such as the legal obligation to provide a member of his family in need with the material assistance essential to live, which can be done under a pecuniary or material form (housing, food, clothes, medical care, etc.) according to the resources of the parent and the children:
The maintenance obligation concerns both children and young adults who are studying:this is called alimony, especially when the parents separate; and later, it is implemented for the elderly at the end of their life, very often when the rest of the cost of the nursing home is greater than the retirement or survivor's pension received by the resident.
The end of the maintenance obligation comes when the young person manages to fly on his own, but for seniors, unfortunately, it is death that sets the end of the assistance.
Generally, the need to have recourse to the maintenance obligation manifests itself when the elderly parent enters nursing home, not necessarily immediately, but as the months go by, he ends up exhausting his woolen stocking which he used, in the majority of case, to complete his retirement to pay the monthly costs of the Ehpad or the retirement home. The situation is not easy because putting oneself in a position of dependence on one's own children can be likened to an affront, so some parents hesitate.
If there is no underlying conflict, if brothers and sisters get along well, an agreement will be reached with their parent, in a natural and amicable way.
On the other hand, if family stories undermine relations between relatives and no agreement can be sealed, the parent in need will have to prove that he is in need to have recourse to the Jaf (family affairs judge) by filing a request. The latter will decide by setting an amount proportionate to both the needs of the parent and the resources of the debtor(s). For each of the parties, the Jaf takes into account all the income as well as all the expenses (loans, other alimony, etc.) without integrating the income of the obligor's spouse but only counting half of the shared expenses (rent, electricity…).
In practice, the maintenance obligation request procedure requires the filing at the TGI registry of the completed Cerfa form n°15454*03, which will be followed by a hearing without the obligation to be assisted by a lawyer, during which the Jaf will decide on the amount of the maintenance obligation to be paid, without retroactive effect. It may, however, be subject to indexation each year, and be subject to revision in the event of a change in the situation of the obligor (unemployment, etc.) or the beneficiary (new resources, etc.).
It should be noted that the support obligation paid to a parent is deductible from income provided that the latter is genuinely in a state of need. For their part, the assisted ascendant must declare this financial assistance on their income tax return unless they are very low.
As stipulated in the aforementioned article 207, the judge can assess each situation and exempt a descendant from a support obligation for the benefit of a parent who has seriously failed in his family duties, who has ignored him all his life or whose parental authority would have been withdrawn, for example.
If the child or children do not comply with the decision and refuse to pay, the parent in need can initiate criminal proceedings against them for the offense of family abandonment. The use of a bailiff can also occur and even the seizure of wages.
A hospital or care establishment can also apply to the Jaf to obtain reimbursement of health expenses owed by the ascendant who has been ill and treated. More pernicious, when the elderly benefit from the social assistance for accommodation (ASH) paid under conditions of resources by the Departmental Council, this institution has the possibility of turning to the Jaf to obtain reimbursement of the aid paid to the ancestor either to the descendants or to the estate (the ASH is only a recoverable advance!).
The maintenance obligation can be the starting point of family disputes, in certain situations. For example, the children of the ascendant can be involved of course, but also the grandchildren. In addition, each person is not solicited for the same amount since the resources and expenses of each are taken into account, which can create jealousy and unpleasant surprises.
Moreover, the departments which decide on the amount of ASH allocated to the elderly person according to his needs and the resources and expenses of those liable, do not all act in the same way:some do not practice recourse to maintenance obligation for grandchildren, others do. And in case of refusal of the descendants to pay, the departmental community does not have the legal capacity to act as the judge has, it is then necessary to turn to the Jaf whose decision is not retroactive whereas the right to social assistance runs from the date of entry into an establishment:the protesting food debtors therefore have every interest in dragging out until the Departmental Council seizes the Jaf.
In the absence of a precise national scale, given the diversity of management practices at the departmental level and the heaviness of inheritance recoveries, the maintenance obligation is regularly called into question, without a reform being born.
