Nearly 70% of households have at least one animal, according to the American Pet Products Manufacturers Association.
This statistic proves just how much we love dogs, cats and other critters. But it also means a high percentage of the 2.4 million Americans who die each year are animal guardians. In other words, well over a million companion animals potentially lose their caretakers annually.
If proper arrangements haven’t been made, these animals can wind up being neglected, abandoned or euthanized.
If you unexpectedly became part of this statistic, or were suddenly faced with a disabling illness or injury, who would care for your dog or cat? Are you sure your wishes would be carried out?
It’s never pleasant to think about death or catastrophic health problems, but the only way to ensure your companion animal’s future is to make arrangements before tragedy strikes. Cats and dogs can live up to 20 years or more. Depending on your own age, your companion could outlive you. Even if you’re young, you could still fall victim to an accident or illness.
“You don’t want to let the state determine your animal’s fate,” says Rachel Hirschfeld, an estate planning attorney who limits her practice to clients with animals. “Many people think that by making arrangements in their will for a pet trust, they are taking care of their animals. Unfortunately, initiating the trust through a will can be a death warrant for the animals.”
It takes time for a will to be probated and its provisions carried out. In the meantime, the cat or dog is at the mercy of whoever steps in to take care of the property – and animals are property under the law. If no one assumes the task and family or friends don’t know who to call, the animal could be given away, sent to a shelter, or even euthanized before probate begins.
In the U.S., animals can be fully protected in one of two ways: a Pet Protection Agreement or a Freestanding Traditional Pet Trust. While there are other options, Rachel stresses that one of these two will cover most situations in any state. Both go into effect immediately on your death or disability and ensure that your companion will receive proper care.
1. Pet Protection Agreement
This is a form containing all the relevant options for an animal’s care. It’s a simple, legally binding document that covers everything from naming a guardian to the animal’s day-to-day routine to what funding will be provided, and it’s valid in all 50 states.
“You can make it as detailed as you want, but I recommend leaving some latitude,” says Rachel. “The tainted pet food case is a good example. You might specify your dog is only to be fed his favorite brand, but what if there’s a problem with that food? The animal’s caretaker should be able to make decisions.”
The Pet Protection Agreement kicks in immediately you are unable to care for your animal because of death, injury or illness. There is no waiting period or court involvement.
2. Freestanding Traditional Pet Trust
For many people, a Pet Protection Agreement will offer the necessary level of protection without requiring legal services. If you believe someone might contest your will, however, you should speak to an estate planning attorney about setting up a Freestanding Traditional Pet Trust.
The Leona Helmsley case is a good example of why a Freestanding Traditional Pet Trust can be beneficial. Ms. Helmsley made the news after her death in 2007, when it was revealed that her will designated $12 million to care for her beloved dog, Trouble. The will was contested, and the courts later reduced the amount to $2 million. With a Freestanding Traditional Pet Trust, her wishes would likely have been carried out as she desired. Because the trust would have been pre-existing and separate from her will, the courts would not have had easy access to make alterations.
•If you have a clear idea of who you would like to designate as your animal’s guardian and the type of care you’d like them to provide, and if no one is likely to contest your plans, a Pet Protection Agreement may suffice.
•If you believe there could be some conflict, or you’d like to make sure your animals stay with you if you’re moved into long term care, you will need a Freestanding Traditional Pet Trust.
Thirty-nine states and the District of Columbia also have state statutes covering statutory pet trusts initiated by a statement in the will. In these states, Rachel explains, when an animal and funds for his care are left to a specific person, the money and animal must stay together. “Otherwise, if you leave your dog and money to Jane, she can take the money and spend it on a shopping spree.”
You can spell out the care you want for your animal when you’re no longer able to provide it, but what if you don’t have any family members or friends who are able to take him in? According to Peggy Hoyt, estate planning attorney and author of All My Children Wear Fur Coats – How to Leavea Legacy for Your Pet, a perpetual care program can provide care or placement when you don’t have other options. Perpetual care programs look after animals at their own facility or place them in new homes. How can you tell if you’re choosing the right one? Peggy advises to look for the following:
•If the program is providing care at its own facility, is there a succession plan to protect the animals if it shuts down? •Is the program well funded?
•If the program places your animal in a private home, will they take him back if the new caretaker can no longer keep him?
While many perpetual care programs are privately run, they are also offered by an increasing number of university veterinary schools. Most schools place the animals into pre-screened homes, although some maintain living facilities right at the university.
To enroll your animal in a perpetual care program, you may be required to sign a contract and pay a deposit in order to reserve a space. The total fee may be locked in at signing, or it may be variable. “The best way to ensure funding for perpetual care without cramping your retirement lifestyle is through a life insurance policy,” advises Peggy.
Get the right attorney
When consulting an estate planning attorney to make arrangements for your animal, choose someone with experience. Some attorneys limit their practice to working exclusively with people with animals; this means they have the specialized knowledge needed to ensure your animal is well protected without leaving any loopholes.
For example, Rachel warns against referring to “incapacitation” in your documents. “That word is open to interpretation, so it can give the courts an opening to make changes,” she says. “And what does it really mean? It could refer to mental problems, but maybe you’re just temporarily unable to care for your animal because you broke your leg. It’s better to simply say that the provisions kick in when you’re not able to take care of your animal, or to spell out the specific circumstances very specifically.”
Rachel adds that a pet trust needs to be independent of other trusts. “While it has similar attributes, it has to be written specifically for the care of an animal. There are many nuances and legal parameters involved in a pet trust as opposed to other types, and it may not be valid if you try to use another kind.”
An estate planning attorney who specializes in protecting animals will be aware of these potential pitfalls and any others that might be related to your unique situation. Someone who only has general experience might not know the nuances that help ensure full protection for your animal.
Most of us see our companion animals as members of the family. As such, they deserve protection in the case of our unexpected illness or death. With a properly prepared plan in place, their future – and your peace of mind – are assured.
Things work differently north of the border, according to Audi Donamor, founder of the Smiling Blue Skies Cancer Fund through the University of Guelph’s Pet Trust. “Legally, you cannot set up a trust fund for your animal, because in Canada it could not be enforced,” she says. “Legally, you also cannot name an animal as a beneficiary of a ‘direct gift’ in a Canadian will. This is because, by legal definition, an animal is considered ‘property’ and therefore cannot be a property owner. You can request that your animal be delivered to your estate trustee upon your demise. The trustee’s role is to find a good home for your animal and to provide a legacy to the person to care for him.”
Alternatively, says Audi, Toronto lawyer Mary MacGregor lists five steps to ensure your animal is well cared for after your demise:
1. Two responsible friends or relatives should be found as temporary caregivers. They should have keys, feeding and care instructions, the name and telephone number of the veterinarian, and information about long term care provisions for the animal.
2. Neighbors, friends and relatives should know how many animals there are, and the names of the temporary caregivers.
3. The animal guardian should carry a wallet card that lists the names and numbers of emergency animal caregivers.
4. As an alert to emergency response teams, notices should be placed on the doors and windows of a home, indicating the type and number of animals inside.
5. Emergency contact names and numbers should be listed on the inside of the front and back doors.
Find more information about Pet Protection Agreements and Freestanding Traditional Pet Trusts at pettrustlawyer.com and petriarch.com. These sites also contain additional helpful information for ensuring your dog or cat’s future care and well being.