Last month, I discussed the best way to protect a pet’s best interests in the event of a divorce or other separation in the pet’s human family. I promised that this month’s blog would focus on protecting the pets in your life if you are no longer able to care for them due to death or disability.
As mentioned in my last article, animals are legally property. This is a concept that often does not sit well with those who share their lives with companion animals. In the estate planning context, this means that animals cannot be beneficiaries of a will or trust the way a human can be. However, that does not mean that estate planning documents cannot be used to protect pets in other ways.
The purpose of this story is to make you aware of planning options for providing for your pet if you are not able to do so. But before we get to that, here is a little story that is really a cautionary tale about what not to do.
Healthy Dog Avoids Being Euthanized Despite Owner’s Dying Wish
Several years ago, we adopted a 5-year-old beagle mix through an animal rescue in Ohio. At that time, he was at a private boarding facility, and his then-owner was in hospice. The owner’s son was the executor of the owner’s estate. The son/executor visited the boarding facility and said that his dad’s will provided that when he died, his dog would be euthanized and buried with him. No one in the family would take the dog, and his dad didn’t think there was anyone who would give the dog a good home. The woman running the boarding facility was appalled that a healthy dog would be euthanized under those circumstances, and with the executor’s permission, she worked with an Ohio rescue to find the dog a new home. We are grateful that we were able to spend nine happy years with this sweet, gentle dog and that he was able to live out his life with us.
While most courts will void these types of will provisions as violating public policy, some people still request them, and some estate planning attorneys will include them. Attorneys who are members of the Estate Planning and Animal Law Sections of the State Bar of Michigan are discussing legislation that would explicitly prohibit these types of provisions in Michigan. In the meantime, rest assured that there are many other options to provide for a pet so that he or she can live out his or her life with a loving family and the necessary resources.
Create a Pet Trust
Pet trusts are explicitly allowed by Michigan law. You should set up a trust with the help of an attorney who specializes in estate planning and is familiar with pet trusts. The person who creates the trust is referred to as the Settlor. The trust creates a fund that is used to provide for the pet if the Settlor dies or becomes disabled. The trust is managed by a Trustee, who is selected by the Settlor. The Settlor may also select a caregiver for his or her animals if the Trustee will not be providing that service. The Settlor funds the trust with an amount of money that will be appropriate to care for the animal – including medical care, food, grooming, and other necessities – for the animal’s life. The Settlor may also direct the Trustee or caregiver regarding the animal’s daily routine, preferences and dislikes. The Trustee will either use the funds or disburse them to the designated caregiver to care for the animal as directed by the trust.
The ASPCA suggests thinking about the following things when creating a pet trust:
- Adequately identify your pets in order to prevent fraud, such as through photos, microchips, DNA samples, or alternatively, by describing your pet as a “class”—in other words, as “the pet(s) owned by you at the time of your illness/death”
- Describe in detail your pet’s standard of living and care
- Require regular inspections of your pet(s) by the trustee [if a caregiver is appointed]
- Determine the amount of funds needed to adequately cover the expenses for your pet’s care (generally, this amount cannot exceed what may reasonably be required given your pet’s standard of living) and specify how the funds should be distributed to the caregiver
- Determine the amount of funds needed to adequately cover the expenses of administering the pet trust
- Designate a remainder beneficiary in the event the funds in the pet trust are not exhausted
- Provide instructions for the final disposition of your pet (for example, via burial or cremation)
Create a Power of Attorney for Your Pet’s Care
In the same way you can use a Power of Attorney to designate a person to handle medical or financial decisions and matters for you, you can use a Financial Durable Power of Attorney to provide for the temporary care of your pet if you are disabled and unable to care for him or her. The Agent you select can be directed to use your money to provide whatever care the animal needs until you are again able to do so. Similarly, you can direct the Personal Representative named in your Will to care for an animal using funds from your estate until permanent arrangements can be made.
MHS Pet Guardianship Program
The MHS Pet Guardianship Program is a benefit to members of the MHS Legacy Society. Legacy Society members who do not have someone in mind to take his or her pet upon his or her death can rely on MHS to provide transitional care and find a loving home for his or her pet. For more information about this program, visit our Wills and Bequests page.
These are not easy topics to think about, and many people avoid planning because no one wants to contemplate the end of a relationship or his or her own or a loved one’s death or disability. But investing some time and planning for situations where your pets may find themselves the subject of a legal proceeding – for example, in a custody battle or estate administration – can give you great peace of mind knowing that you have done all you can to protect your pet’s best interests.
We are going to keep working to improve animal welfare and serving as a voice for the animals through advocacy. We’ll let you know when you can help advocate with us! Together, we can continue to make a difference in animals’ lives. If you know someone who you think would be interested in animal advocacy, please forward this to them and encourage them to sign up for our Legislative Action Network.
Photo credit: Yakobchuk Olena, Adobe Stock