The Humane Society of the United States
Because pets usually have shorter life spans than their human caregivers, you may have anticipated your animal friend’s passing. But what if you are the one who becomes ill or incapacitated, or dies first? As a responsible pet owner, you provide your pet with food and water, shelter, veterinary care, and love. To ensure that your beloved pet will continue to receive care should something unexpected happen to you, it’s critical to plan ahead.
GLBTs may want to focus on the issue with extra emphasis, since pets are classified as property. Problems could arise when one partner passes away. Without any written document to back a claim to a companion animal, a surviving partner may not be able to maintain ownership of the pet should the deceased partner’s next of kin wish to take possession of the animal. But estate planning documents can rid a gay or lesbian couple’s fear of such an occurrence taking place.
Make sure you learn what steps you can take to plan and provide for your pet’s future without you. The Humane Society of the United States offers a free kit, "Providing for Your Pet’s Future Without You," complete with a six-page fact sheet, wallet alert cards, emergency decals for windows and doors, and caregiver information forms. For the full kit, please visit www.hsus.org/petsinwills, call 1-800-808-7858, or write to [email protected] or Rob Blizard, The HSUS, 2100 L Street NW, Washington, DC 20037.
NOTE: The following information is intended to provide a general overview and to stimulate your thinking about providing for your pet in the event of your incapacity or death. It is not intended to provide legal advice and is definitely not a substitute for consulting a local attorney of your choosing who is familiar both with the laws of your state and with your personal circumstances and needs, and those of your pets.
Preparing for the Unexpected
In the confusion that accompanies a person’s unexpected illness, accident, or death, pets may be overlooked. In some cases, pets are discovered in the person’s home days after the tragedy. To prevent this from happening to your pet, take these simple precautions:
- Find at least two responsible friends or relatives who agree to serve as temporary emergency caregivers in the event that something unexpected happens to you. Provide them with keys to your home; feeding and care instructions; the name of your veterinarian; and information about the permanent care provisions you have made for your pet.
- Make sure your neighbors, friends, and relatives know how many pets you have and the names and contact numbers of the individuals who have agreed to serve as emergency caregivers. Emergency caregivers should also know how to contact each other.
- Carry a wallet "alert card" that lists the names and phone numbers of your emergency pet caregivers.
- Post removable "in case of emergency" notices on your doors or windows specifying how many and what types of pets you have. These notices will alert emergency-response personnel during a fire or other home emergency. Don’t use stickers; hard-to-remove stickers are often left behind by former residents, so firefighters may assume that the sticker is outdated or, worse, they may risk their lives trying to find a pet no longer in the house.
- Affix to the inside of your front and back doors a removable notice listing emergency contact names and phone numbers. Because pets need care daily and will need immediate attention should you die or become incapacitated, the importance of making these informal arrangements for temporary caregiving cannot be overemphasized.
Ensuring Long-Term or Permanent Care for Your Pet
The best way to make sure your wishes are fulfilled is by making formal arrangements that specifically cover the care of your pet. It’s not enough that long ago your friend verbally promised to take in your animal or even that you’ve decided to leave money to your friend for that purpose. Work with an attorney to draw up a special will, trust, or other document to provide for the care and ownership of your pet, as well as the funds necessary to care for her.
Choosing a Permanent Caregiver
First, decide whether you want all your pets to go to one person, or whether different pets should go to different people. If possible, keep pets who have bonded with one another together. When selecting caregivers, consider partners, adult children, parents, brothers, sisters, and friends who have met your pet and have successfully cared for pets themselves. Also name alternate caregivers in case your first choice becomes unable or unwilling to take your pet. Be sure to discuss your expectations with potential caregivers so they understand the large responsibility of caring for your pet. Remember, the new owner will have full discretion over the animal’s care—including veterinary treatment and euthanasia—so make sure you choose a person you trust implicitly and who will do what is in the best interest of your pet.
Stay in touch with the designated caregivers and alternates. Over time, people’s circumstances and priorities change, and you want to make sure that the arrangements you have made continue to hold from the designated caregivers’ vantage points. If all else fails, it is also possible to direct your executor or personal representative, in your will, to place the animal with another individual or family (that is, in a noninstitutionalized setting). Finding a satisfactory new home can take several weeks of searching, so again, it is important to line up temporary care.
You also have to know and trust your executor and provide useful, but not unrealistically confining, instructions in your will. You should also authorize your executor to expend funds from your estate for the temporary care of your pet as well as for the costs of looking for a new home and transporting the animal to it. The will should also grant broad discretion to your executor in making decisions about the animal and in expending estate funds on the animal’s behalf.
Entrusting Your Pet to an Organization
Most humane organizations do not have the space or funds to care for your pet indefinitely and cannot guarantee that someone will adopt your animal, although some may be able to board and care for your pet temporarily until he can be transferred to his designated caregiver. There are, however, a few organizations that specialize in long-term care of pets of deceased owners. For a fee or donation, these "pet retirement homes" or "sanctuaries" may agree to find your pet a new home or care for your pet until she dies. Be aware, however, that pets are companion animals who need lots of care and affection; they may suffer from long-term confinement in such facilities. Your pet will not want to be institutionalized any more than you would want to be.
Before making any formal arrangements, visit the organization to see how animals are cared for, where they are confined, who looks after them, when they are socialized and exercised, and what policies and procedures exist regarding care at the facility and placement with a new family. Also consider what might happen to your pet if the organization were to suffer funding or staff shortages. If you decide to entrust the care of your pet to an organization, choose a well-established organization that has a good record of finding responsible homes quickly.
Requesting Your Pet Be Euthanized Upon Your Death
Being concerned about what will happen to your pet after your death is normal. But some people take this concern to extremes, requesting that their pet be euthanized out of fear that no one else will care for the animal appropriately. When an owner puts this request in his will, that provision is often ruled invalid by the legal system when the animal is young or in good health and when other humane alternatives are available.
There are some cases when euthanasia may be appropriate. If a pet is very old or requires extensive treatment for a health condition, for example, it may be unfair to both the pet and your designated caregiver to insist on indefinite care. That’s why it’s important to choose a responsible caregiver and thoroughly discuss the animal’s condition and needs so that the caregiver can make the best decision after you’re gone.
Seeking Legal Assistance
Before making formal arrangements to provide for the long-term care of your pet, seek help from professionals who can guide you in preparing legal documents that can protect your interests and those of your pet. However, you must keep in mind the critical importance of making advance personal arrangements to ensure that your pet is cared for immediately if you die or become incapacitated. The formalities of a will or trust may not take over for some time.
Although your lawyer will help you decide what type of document best suits your needs, you should be aware of some drawbacks to wills. For example, a will takes effect only upon your death, and it will not be probated and formally recognized by a court for days or even weeks. What’s more, if legal disputes arise, the final settlement of your property may be prolonged. Even determining the rightful new owner of your pet can get delayed. In other words, it may take a long time before your instructions regarding your pet’s long-term care can be carried out.
This doesn’t necessarily mean that you should not include a provision in your will that provides for your pet. It just means that you should explore creating additional documents that compensate for the will’s limitations.
Setting Up a Trust
Unlike a will, a trust can provide for your pet immediately and can apply not only if you die, but also if you become ill or incapacitated. That’s because you determine when your trust becomes effective. When you create a trust for your pet, you set aside money to be used for his care and you specify a trustee to control the funds.
A trust created separately from your will carries certain benefits. The trust can be written to exclude certain assets from the probate process so that funds are more readily available to care for your pet. Additionally, it can be structured to provide for your pet even during a lengthy disability.
Which Is Right for You—A Will or a Trust?
There are many types of wills and trusts; determining which is best for you and your pet depends on your situation and needs. It’s important to seek the advice of an attorney who both understands your desire to provide for your pet and can help you create a will and/or trust that best provides for him.
You and your attorney also need to make sure that a trust for the benefit of one or more specific animals is valid and enforceable in your state; Tennessee currently offers honorary pet trusts, which are different from enforceable pet trusts that allow courts to monitor the care received by pets named in these types of trusts.
Even if your state law recognizes the validity of such trusts, keep in mind that tying up a substantial amount of money or property in a trust for an animal’s benefit may prove to be controversial from the point of view of a relative or other heir. Moreover, trusts are legal entities that are relatively expensive to administer and maintain, all of which underscores the need for careful planning and legal advice.
After you and your lawyer create a will, a trust, or both, leave copies with the person you’ve chosen to be executor of your estate as well as with the pet’s designated caregiver so that he or she can look after your pet immediately. (The executor and caregiver may or may not be the same person.) Make sure the caregiver also has copies of your pet’s veterinary records and information about her behavior traits and dietary preferences.
Powers of Attorney
Powers of attorney, which authorize someone else to conduct some or all of your affairs for you while you are alive, have become a standard planning device. Such documents can be written to take effect upon your physical or mental incapacity and to continue in effect after you become incapacitated. They are simpler than trusts and do not create a legal entity that needs to be maintained by formal means. Provisions can be inserted in powers of attorney authorizing your attorney-in-fact—the person designated to handle your affairs—to take care of your pets, expend money to do so, and even to place your pets with permanent caregivers if appropriate.
Like any other legal device, however, powers of attorney are documents that by themselves cannot ensure that your pet is fed, walked, medicated, or otherwise cared for daily. Legal devices can only complement your personal efforts in thinking ahead and finding temporary and permanent caregivers who can take over your pet’s care immediately when the need arises. It is critical to coordinate, with more formal legal planning, your own efforts in finding substitute caregivers.