Have you thought about what would happen to your pet in the event of your death or incapacity? Approximately two-thirds of American households own a pet, and while we have many people in our busy lives, our pets have only us. Pet owners often lament that beloved animal companions don’t live as long as we do, but they still warrant consideration in our estate plans because we don’t know what the future will bring. This is especially true for animals with longer life expectancies or higher costs of care, such as dogs, cats, horses, parrots, turtles and animals with special needs.
Without provisions for your pet in your living trust, in the short term your pet could go days at home without food and water, and could feel panicked, distressed or abandoned. In the long term, your pet could end up with someone you don’t want them to end up with, or at a shelter where he or she could be euthanized. Contrary to popular belief, informal arrangements are generally not legally enforceable and simply adding your pet to your will often isn’t enough. Your pet will need care long before your will is probated, and wills offer no ongoing control or oversight for your pet, the caregiver or funds left for your pet.
Including the following documents in your estate plan can help to ensure that someone has access to your home and authorization to care for your pets in the short term, and can ensure that you decide who will ultimately care for your pets, and how they will be cared for, if you die or become incapacitated.
Pet Trust
A pet trust is a great way to ensure that your pet is cared and provided for after your death. The pet trust may be a part of your existing trust or may be a completely separate trust. It allows you to name the caretaker of your pets and creates a fiduciary obligation on the named caretaker to care for your pet in the manner described in your trust. You will provide money for your pet to be cared for, and the trustee of the trust will disburse funds to the caretaker or directly to a service provider to pay for your pet’s care. The trustee is similarly under a fiduciary obligation to ensure that the trust funds are used only for the purposes described by your pet trust.
A pet trust also allows you to name successive caretakers in case your preferred caretaker becomes unable or unwilling to take care of your pet, for example, if he or she has a change in life circumstances (e.g. medical concerns or new family obligations, among other reasons). Without a pet trust, on the other hand, your pet becomes the legal property of the person who assumes care of the pet, and the new owner may make decisions about the pet’s future that you might disagree with. If the new owner doesn’t make any formal arrangements, your pet’s future could be in limbo if something happens to the new owner. If you want to maintain control over the succession of caregivers for your pet, a pet trust drafted by an experienced estate planning attorney is crucial and affords the best long term protection for your pet.
Durable Power of Attorney for Pet Care
The Durable Power of Attorney for Pet Care allows you to authorize someone else to seek medical care for your pet and specify to what extent the agent may act on your behalf. This document can also be used by a pet caretaker while you are away on business or vacation. Alternatively, if your own Durable Power of Attorney is “effective immediately” rather than “effective upon incapacity” (sometimes called “springing”), provisions for your pet may instead be added to your own Durable Power of Attorney.
Care Instructions
Pet care instructions will accompany the instructions in your pet trust. It is important to have these as a separate document that will be incorporated into your pet trust by reference so that you can change your pet care instructions as your pet’s needs and tastes change without having to update your trust. The pet care instructions should be reviewed and updated frequently to ensure that food requirements, medical information and emergency contacts are up to date. It’s also a good idea to include information about what your pet likes and doesn’t like, any quirks your pet may have, and generally anything else you would want someone caring for your pet to know. This versatile document, like the Durable Power of Attorney for Pet Care, can also be left with someone caring for your pet while you are away on business or vacation.
Importantly, if your pet is ever in a situation where the pet will need to be adopted to a new family, these instructions provide valuable information to the agency that will assist them in making sure a first match is successful, rather than, for example, adopting your pet to a family with young children only to have your pet returned when it becomes apparent that your pet is fearful of children. An owner’s death is stressful for an animal, so ensuring a successful first match with an adopter is imperative.
Wallet Card
This extra protection will immediately notify someone that you have pets at home if you are found to be deceased or incapacitated somewhere other than your home. Similar to adding “in case of emergency” contacts to your phone, having information in your wallet about who should be contacted to quickly provide care to your pets in such a situation can be the difference between your pets being cared for quickly or being home alone for days without food or water.
© 2019 Varnum LLP
