Planning For Your Pets - Power of Attorney, Will, or Trust
When I am not practicing law, you can probably find me with my dogs. Whether training, playing, or hanging out – dogs are a big part of my life. If you are like me, you probably put a lot of thought, time, and money into your pet’s care: from leashes, beds, and grooming, to diet, veterinary care, exercise, and training. But have you put as much thought into what would happen to your pets if you were suddenly unable to care for them? If you have a spouse or partner you may not be too worried, but what if the unthinkable happened and suddenly both of you were gone? Unfortunately, it happens frequently that someone’s beloved pets end up in a Facebook post, looking for a new home, because their owner has passed.
In the past, the law treated pets as property, like a boat or a painting. You could leave your dog to someone, and you could leave the person money, but you couldn’t control what happened to either one after you were gone. There was no way to ensure that your pet would be taken care of according to your wishes. Luckily, recent developments have provided better options. Here are my top 5 ways to plan for your pet if you are unable to or after you are gone:
1. Do Nothing
When a person dies without a will, the law dictates who inherits their property – usually a spouse, parents, siblings, or children. If you were to die without a will, the law would treat your dog like any other property and pass him or her to your closest heir. Once that person owned your dog, they would be free to do anything that any pet owner could do, including give him to someone else. It may be that your heirs would work it out, but even if your family has the best intentions, they may not arrive at the best result for your dog. Say they decide that your niece who has two dogs of her own is a good choice to take your dog: if your dog does not get along with the resident dogs, he may end up unhappy or even rehomed.
2. Informal Arrangements
If you don’t want the state or your family members to decide who gets your dog, then at a minimum you should make a plan and discuss it with those who can carry out your wishes. Decide who should have custody of your dog if you become incapacitated or die, and talk to that person about it. Make sure to discuss the details and confirm that it would work for everyone involved. While this kind of arrangement is informal, it’s probably a good idea to put something in writing, if only because this a plan for the distant future and memories fade. A note or email will help everyone remember what was agreed to. It is important to also tell those who will have the task of settling your affairs about the arrangement. If they don’t know about your plan, then they will not be able to carry it out for you. You would not want a helpful relative to go through the trouble of finding a home for your dog, not realizing that you had already arranged for him to go back to his breeder or to your training buddy.
If everyone gets along and communicates well and no disputes arise, then an informal arrangement like this can work. The problem with such informal arrangements is that because they are informal, there can be delays or confusion about who should do what. And if a dispute does arise about who should get custody of the dog, or something goes wrong, the arrangement is not enforceable. In other words, your heirs could insist that your dog go to them, rather than to the friend who you decided would make the best home.
3. Power of Attorney for Incapacity
Don’t forget to prepare for an accident or sudden illness short of death. Make arrangements for someone to take care of your dog if you are ever incapacitated. While informal arrangements can work here as well, a Power of Attorney can make the process smoother for the caregiver. A Power of Attorney is a legal document that gives a person of your choosing the power to act for you if you are unable to. It only applies while you are alive, not after death, and it can be drafted such that it should not require any court involvement and to be effective immediately. That way, if you suddenly became hospitalized, the person you appointed as your Power of Attorney could take custody of your dog, get necessary veterinary care, hire a pet sitter, pay for supplies, or anything else that needed to be done. It is a formal document that everyone involved knows about, and it is enforceable by law. If you have a trusted attorney draft the Power of Attorney for you, she can hold it until it is needed. I do this for my clients, and it gives them peace of mind to know that I have the important documents stored in my office and one call to me will set their plan in motion to smooth the way for their loved ones and their pets.
4. Will
The most common legal document that controls what happens to your assets after death is a will. Because pets are still considered property under the law, it is possible to leave your pet to someone by putting it in your will. But wills are hard to change and are meant to last a long time, so it is not recommended. In Massachusetts, you can now attach a “memorandum” to your will, a written list that is separate from your will and that is easier to change over time. Check with your lawyer to see if your will allows for a memorandum. If so, that may be a formal yet easy way to identify a caretaker for your dog after you are gone.
As with informal arrangements, if you are going to leave your dog to someone, it is best to discuss this in detail with the person in advance. You may also want to consider naming a second person as a backup. Be aware that once this person inherits your pet, it is theirs and any instructions as to future care would likely not be enforceable.
What about taking care of your dog financially? Frequently, when preparing their estate plans, people want to put aside some of their money for the care of their pets. In the past, people tried leaving money in a will to their pet. Again, because dogs were considered property courts often didn’t allow this, and the money just went to the other heirs instead. Others tried leaving money to a person with instructions to care for the dog, but this also frequently failed to accomplish what the owner intended. The conditions that were put on the money were not enforceable, and the heirs were permitted to use the money for themselves. If you leave money to someone to take care of your dog, you are relying entirely on your trust in that person that they will carry out your wishes.
5. Pet Trusts
For those who have specific wishes about the care of their pets and who want to provide financially for them after death, each of the options already mentioned has its drawbacks. Fortunately, most states now allow for legally enforceable Pet Trust. A Pet Trust allows you to determine who will get custody of your dog, and to set aside money that must be used for the care of the dog, according to your instructions. How do they work?
When you create a trust, you create an entity that can own assets, and you put some money in it (either right away or through a will). You appoint a trustee who will be responsible to carry out the terms of the trust after your death. A simple Pet Trust might identify the pets, instruct the trustee to deliver the pets to a named caregiver, set a monthly allowance to be paid to the caregiver for the pet’s needs, provide a standard of care, specify how the pet’s remains are to be handled after the pet has died, and provide how any remaining assets should be disposed of. The trustee has a duty to make sure the provisions of the trust are carried out, and the caregiver has the right to enforce the trust as well, setting up a system of checks and balances. A Pet Trust makes it possible to ensure that your beloved dog is taken care of in the manner you decide is best, and that the new custodian has the assets to carry out your wishes, without having to rely on anyone’s good intentions.
Talking about illness, accident and death is uncomfortable, but as with so many things, communication and planning are the keys to a smooth process.As hard as it is, making an estate plan is a gift you give to those who will be left behind. If you would like help creating a plan for your pet, whether a pet trust or a complete estate plan, please contact me at chargrove@cshlawllc.com