Most of us expect to outlive our pets – but we don’t always. That’s why legal pet care is so important. What will happen to the animals you love if suddenly you can’t care for them?

“Millionaire Leaves Everything To Cats”

Headlines like this give the impression that only rich people can consider legal provisions for their pets’ care, and that naming pets in their wills will solve the problem. Not true. Though your options will vary according to how much money may be available to carry out your plans, people of moderate means can afford the legal fees to formalize an appropriate plan, and every owner must plan ahead.

Leaving money directly to a pet, however, is not one of your options. Legally, pets are considered property, and are treated as part of your estate, not as heirs or beneficiaries.

Planning Ahead for Pet Care

For Incapacity

First, if you were in an accident and unable to communicate, would anyone know you have a pet at home, and would they be able to get in safely?

You need to have someone ready to step in at a moment’s notice – or to call someone who is – to provide daily care, and to be able to give a veterinarian permission to treat your animal, should that need arise.

You need to have an arrangement for pet care which provides that person enough money to carry this out, if they are not willing or able to bear the costs themselves.

And you need to let appropriate friends, neighbors, and family know, so they won’t think someone is stealing your dog while you are away or entering your house without permission.

Planning Options

For your pet’s well-being, a properly drafted Power of Attorney can designate a specific person, called “agent” or “attorney in fact,” to take care of your animal(s) when circumstances make you unable to do so. This document, called a Durable Financial Power of Attorney, can give that person the authority to use your money to provide for your pets’ needs. Remember, you may not be capable of executing these documents when you need them most, so these legal acts should be handled as soon as possible, and then kept in a safe place until needed. And in case the person you designate moves or has a change in health or circumstance themselves, you will need to name a successor or alternate person in these documents for your pet care.

If you are someone who owns several pets, you may need to prepare separate documents for a number of people among whom you would distribute your animals, according to their affinity for one or another, and their ability to care for them. Remember to communicate with your agent and let you know where the pet care documents are.

Note that when you die, however, POA instruments expire, and provisions in your will or a separate trust, or the rules of intestate succession, will take over.

Planning Ahead For When You Are Gone: Including Pet Care in Your Will

If you die without legal provisions specifically for pet care, animals will be considered part of your property, and “distributed” to your heirs or beneficiaries. The worst case scenario might include delivering your animal companion to an uncertain future, especially if it is elderly or has medical needs.

There are four ways in which pet care can be written into your will.

You may leave your pet to a specific family member or friend who you trust to care for the animal. Remember, though, that your pet will then become their property, to do with as they decide. You should choose a person you feel confident will take the pet, or rehome it with appropriate cautions in place. Even for an animal lover, this is a huge responsibility. Don’t name someone without first asking the person if they would be both willing and actually able to take on this important role. Someone you see as the perfect caregiver in all respects might have some plans or issues you are unaware of that would make fulfilling your pet care wish difficult or impossible. And you may also want to line up an alternate person in case the first person unexpectedly becomes unable to fulfill the obligation.

You can make your pet a “conditional gift” to someone, meaning that you leave your pet, as property, to a particular person on the condition that they agree to care for it. The caution here is that there is no legal way to follow up and enforce the kind of pet care you pictured. Unlikely as it may seem, the person could conceivably give the pet away, abandon it, or have it put down. As with giving your pet to someone outright, you may want to name an alternate for this “conditional gift” arrangement in case the condition is not met.

You can leave the decision up to your Personal Representative, the person who is handling the rest of your affairs after you die. That person could be directed to find a home for your pet. But if they are unable to do so, would it be alright with you if your pet is given to a licensed shelter, in the hopes it will be adopted? If the PR is unsuccessful in both of these attempts, what should happen then? The more specific about pet care you can be, the better for your animal.

You may instruct that your pet be euthanized, or put down, when you die. While your intention may be to spare the animal trauma, or your friends and family the extra responsibility, either the court or the P.R. or another person with an interest in your estate may legally object to ending its life. Historically it has been considered against public policy to carry out such wishes and courts have invalidated such instructions. If you do decide to leave instructions for euthanasia of your pet, you should also construct a back-up plan in case your instructions to euthanize are invalidated.

Creating a Pet Care Trust

Maine has been a leader in pet care and animal welfare laws. Beginning in July 2005, it became possible in Maine for pet owners to create a legal trust for the care of any of their animals that are alive during that owner’s life time. This is called a Statutory Trust, and it ends with the death of the animal(s) covered. (Be aware, however, that such a Maine trust may become un-enforceable if you happen to move to a state that does not recognize a statutory trust.)

There are two versions: it can be set up to take effect before you die, if you wish, or to become active only after you die.

The advantage of the first arrangement, called an inter vivos trust, is that it can assure that the animals’ needs are met while you still live but may be incapacitated and unable to care for or consider your pets.

The second version, called a testamentary trust, cannot be used to plan for a lapse in care when the owner is still alive but unable to provide that care.

Trusts for the Care of Animals may be funded with your savings, by the proceeds of sale of your assets, or by designating the trust (not the pet!) as the beneficiary of a life insurance policy. In any case, it is important to estimate the costs of caring for the pet(s) named in the trust as accurately as possible.

Note that if you leave too much money in the trust, the court has the authority to return what it considers the excess amount to the person who created the trust, or that person’s successors. If you truly did try to leave millions to your cat, for example, you can bet that anyone with a plausible claim as heir or successor would petition the court to distribute the excess, and the court would likely be sympathetic.

No Matter What, Someone Needs Know

Finally, no matter what other plans you make, be sure the following information is written down somewhere, and that your family, agent, friend, lawyer or personal representative can find it:

• location of any legal documents that pertain to the ownership and pet care of your pet;
• name, address, and contact information for your vet;
• history of your pets health, including conditions, allergies, shots and diseases;
• medications and dosage amounts, if applicable;
• daily habits and any favorite foods, games, toys, people and places;
• any fears or clear dislikes; and
• everything your pet might want a new person to know to keep it safe and healthy.

This article is intended for general information and is not a substitute for specific legal advice.

For referral to an appropriate attorney call 1-800-860-1460 or go to www.mainebar.org and click on Lawyer Referral

© 2008 Maine State Bar Association