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Pet Trusts Ensure Continued Care for Companion Animals

THURSDAY, 07 JULY 2011 19:16

070711SEN1BY GENE L. OSOFSKY, ESQ.

Special to the Times

Q: My two dogs are my constant companions and provide me a great deal of comfort,  but I worry about what might happen to them should something happen to me. Is there something I can do to provide for their care when I can no longer do so?

A: Yes there is, and you are not alone in expressing your concerns. Our furry companions provide great comfort to us, and it’s natural to want to ensure their continued welfare.

One technique is to create a Pet Trust. As its name implies, a Pet Trust is a trust created for the specific purpose of caring for companion animals. The essential elements are: the naming of a trustee to manage the money you place into the trust, a caretaker to take physical care of your pets, a non-profit backup to take the pets if your designated caretaker is not able to do so, and detailed instructions on how to care for your pets.  

Since January 2009, Pet Trusts have become enforceable in California in a court of law. And, most other states have similar laws.

The Pet Trust can be created in your will, but since the will is not effective until it is admitted to probate, which usually only occurs many weeks after death, it is better to create a pet trust during your lifetime. It can be created as either a stand-alone trust or as a separate part of your  Living Trust.

The Pet Trust should be funded with enough money to cover the continued care of your companions for the duration of their anticipated lifetimes, including items such as anticipated veterinary fees and reasonable fees to their caregiver.

The amount of funding need not necessarily be large: for smaller animals such as dogs and cats, a few thousand dollars may be sufficient, while more would likely be required for larger animals such as horses.

But your death is not the only concern. What if you became ill and can no longer care for your animal companions?

To address this concern, you may also wish to include suitable powers in your Durable Power Of Attorney authorizing your agent to take charge of your pets if you become incapacitated and either furnish pet care themselves or hire a suitable caregiver to do so at your expense.

Likewise, you should give your agent specific instructions to bring your pets to visit you if feasible even if you’re not living in your own home, so that you and your pets can maintain your bond.

Your estate planning attorney can assist you in creating a suitable Pet Trust as part of your estate plan. Taking this extra step to provide for your companion animals can bring you great peace of mind and the comfort of knowing they will be cared for when you can no longer do so yourself.

Gene L. Osofsky is an elder law and estate planning attorney in Hayward. For more information, visit his website at www.LawyerForSeniors.com.

Related:

Leona Helmsley’s Will to Give $1 Million to Dog Causes, Down from $12M

Plan Ahead For Your Pets’ Care… Like Oprah

Providing for Your Pet’s Future Without You

Using and Attorney is Often Best, Especially of You Are Talking Leona Helmsley or Oprah Money… For the Rest of Us Here Is A Great Book:   Order Your Copy Today:  Every Dog’s Legal Guide: A Must-have Book for Your Owner

Cross-Posted at Ask Marion

July 9, 2011 Posted by | Animal or Pet Related Stories, animals, Dogs, Just One More Pet, Pet Friendship and Love, Pets, responsible pet ownership, Unusual Stories | , , , , , , , , , | 1 Comment

Providing for Your Pet’s Future Without You

Introduction 

Because pets usually have shorter life spans than their human caregivers, you may have planned for your animal friend’s passing. But what if you are the one who becomes ill or incapacitated, or who 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 this care should something unexpected happen to you, it’s critical to plan ahead. This information sheet helps you do just that.

What can I do now to prepare 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. 

How can I ensure long-term or permanent care for my pet if I become seriously ill or die?

The best way to make sure your wishes are fulfilled is by also 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 money necessary to care for her.

How do I choose 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 interests 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. Sample language for this approach is:

{Article Number} A. As a matter of high priority and importance, I direct my Personal Representative to place any and all animals I may own at the time of my death with another individual or family (that is, in a private, noninstitutionalized setting) where such animals will be cared for in a manner that any responsible, devoted pet owner would afford to his or her pets. Prior to initiating such efforts to place my animals, I direct my Personal Representative to consult ______________________, D.V.M. (currently at the _______________________ Hospital), or, in the event of Dr. _____________’s unavailability, a veterinarian chosen by my Personal Representative, to ensure that each animal is in generally good health and is not suffering physically. In addition, I direct my Personal Representative to provide any needed, reasonable veterinary care that my animal(s) may need at that time to restore the animal(s) to generally good health and to alleviate suffering, if possible. Any animal(s) not in generally good health or who is so suffering—and whose care is beyond the capabilities of veterinary medicine, reasonably employed, to restore to generally good health or to alleviate suffering—shall be euthanized, cremated, and the ashes disposed of at the discretion of my Personal Representative. Any expenses incurred for the care (including the costs of veterinary services), placement, or transportation of my animals, or to otherwise effect the purposes of this Article ___________ up to the time of placement, shall be charged against the principal of my residuary estate. Decisions my Personal Representative makes under this Article ____________________—for example, with respect to the veterinary care to be afforded to my animal(s) and the costs of such care—shall be final. My intention is that my Personal Representative have the broadest possible discretion to carry out the purposes of this paragraph. 

Can I entrust the care of my 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.

Can I request that my pet be euthanized after my 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 good homes out there for your pets and usually you can choose a home yourself in advance by planning and making arrangements.  If not, if you make the proper provision, a good home will be found.

Every Dog’s Legal Guide: A Must-have Book for Your Owner

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.

Do I need 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.

In most cases, this book is all you need:  Every Dog’s Legal Guide: A Must-have Book for Your Owner

Is a will the best way to provide for my pet?

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 later. 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.

How can setting up a trust help?

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 the will carries certain benefits:
  • It can be written to exclude certain assets from the probate process so that funds are more readily available to care for your pet.
  • It can be structured to provide for your pet even during a lengthy disability.

Which is right for me—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. 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.

Consider also a Power 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.

For more information

If you or your legal advisor would like more information on any of these matters, please contact The HSUS’s Planned Giving Office, at 1-800-808-7858, or The HSUS’s Office of the General Counsel, at 202-452-1100, extension 3320.

You can help your fellow species even after you’re gone with a bequest supporting HSUS animal protection programs. Naming The HSUS in your will demonstrates your lasting commitment to animal welfare. Please keep in mind that we’re just as happy to be last in line in your will; we hope you will consider The HSUS for at least the residue of your estate. In the meantime, we have materials on numerous subjects that we can send you, including:

Bequests/Wills

  • How to include The HSUS in a will as a primary or secondary beneficiary
  • How to include The HSUS in a will as a final beneficiary for the residue of an estate
  • “37 Things People ‘Know’ About Wills That Aren’t Really So”
  • The HSUS Creative Estate Planning Course 

Other Estate Planning Vehicles and Charitable Gifts

  • Charitable gift annuities and trusts
  • Helping Hands recognition society
  • Kindred Spirits pet memorials
  • Making gifts of stock and avoiding capital gains tax 

NOTE: The foregoing is intended to provide general information 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.


Courtesy of

www.hsus.org

 

Order Your Copy Today

Every Dog’s Legal Guide: A Must-have Book for Your Owner

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February 13, 2009 Posted by | Animal Rights And Awareness, Just One More Pet, Pet Friendship and Love, Pets, Political Change, responsible pet ownership, We Are All God's Creatures | , , , , , , , , , , , | 9 Comments

In Pets We Trust

Kathleen McCabe weeps when she recalls the death of Alexis Jarose. Not only did McCabe lose her best friend, but she couldn’t save Jarose’s dog, Schweppes, a wirehaired fox terrier. “I would have willingly taken him, but when Alexis died, her caregiver immediately put the dog to sleep. There was nothing I could do, because Lex had revised her will leaving out any mention of Schweppes,” she recalled.

A similar fate won’t befall McCabe’s beloved terrier, Spencer. Since McCabe first crafted a will with her husband, Stephen, 40 years ago, provisions have always been made for their pets.

Animals who outlive their owners face uncertain fates. Under the best circumstances, a family member or friend cares for your pet for the rest of its life. If not, your pet goes to a shelter, is euthanized, or is simply let out the front door. The Humane Society of the United States estimates six to eight million dogs and cats enter shelters annually. Only half are adopted.

Should an accident befall payroll specialist Millicent Reed, 50, or her husband Jimmy, her sister-in-law Patricia would get first right of refusal to their seven cats. Another sister-in-law is next in line. Reed said a plan is essential. Six years ago, her aunt was in an auto accident and later died.

“We knew my aunt’s cat, Pepper, was alone, but it took us a week to fly to my aunt’s home,” she said. By then Pepper was out of food and scrounging through the garbage cans. Now Reed always leaves her pets enough accessible food and water to last at least a week should something catastrophic occur. 

Thinking of leaving a chunk of change to Fido or Fluffy? Think again. “In our current legal system, an animal can’t own property. Some human has to be in charge. A will is a transfer of assets. Once it’s done, there’s no ongoing supervision,” explained Mary Randolph, a non-practicing lawyer and the author of “Every Dog’s Legal Guide” (2007).

Randolph suggests a pet trust. This legal document—recognized in 39 states and the District of Columbia—outlines the continued care and maintenance of domestic animals and names new caregivers or directs trustees to find new homes for pets. “A trustee has a legal duty of carrying out your wishes,” she said.

While owners may simply include their pets as provisions in their wills, Michael Markarian of the Humane Society believes a trust is a better option in case of disability. He said, “Wills may take weeks to be executed and could be contested, but a living trust can be written to immediately take effect.”

Creating one does take time. Select a pet-friendly lawyer or estate planner and expect to pay from $500 to $1,000 for their services. Be sure to consider your pet’s financial future. Some owners make outright gifts of cash for their animals’ care.

Hilary Lane of Louisville, Colo., has set aside $5,000 to offset costs for the person who ends up with her dogs, Luna and Frisbee. Likewise Carol Brown, 72, an antiques dealer in Walpole, N.H., has money set aside for the care of her three Norwich terriers and two horses, should any outlive her. “I didn’t want to place a financial burden on their caregivers,” she said.

Some animal lovers don’t advertise the fact that money is part of the deal. One pet owner who wishes to remain anonymous reveals that upon her death, there are 10 people listed as potential trustees to take care of her male cat. What the new caregiver won’t know at first is that the estate is instructed to award the person $10,000 if the feline is still with him or her after six months. “I want someone to take him out of the kindness of their heart and be rewarded if they keep him and fall in love with him like I did,” she explains.

Others leave money to be distributed over time—monthly, annually, or as reimbursement for expenses. 

Want even more security for your pet? Name someone other than the caregiver as trustee to dole out the cash. This reduces the risk of someone taking the money, but selling or destroying your pet.

That’s Dane Madsen’s plan. After his divorce, the 50-year-old corporate strategist from Henderson, Nev., created a living trust for his three rottweilers. “Should my ex-wife be unable to care for any of my pets, two trustees have explicit instructions to use their best judgment to find homes for my pets. The dogs should be kept together, and the new caregiver will receive $150 per month, plus money for veterinary bills and other expenses,” he said. “In the event an animal falls ill, the caregiver and vet jointly decide their end-of-life management.”

More of a do-it-yourselfer? For $89, Peace of Mind Pet Trust (POMPT) will e-mail you simple forms for creating a trust according to the laws of the state in which you live. The brainchild of an Illinois lawyer, Peter Canalia, the kit includes checklists, tips for funding your trust, and paperwork to create a durable power of attorney. Pet trusts can stipulate all the details an owner finds important, from the kind of food the pet eats to its medical needs and walking schedules. The Humane Society also offers a free fact sheet on estate-planning. The sheet includes advice on both wills and trusts.

Bottom line: Just as you would if you were picking a guardian for a child, talk to potential caregivers for your pets. Find someone you trust. After all, what you really want is someone who will love your pet.

By: Laura Daily | Source: AARP.org

Pets in Estate Plans Fact Sheet in English

Pets in Estate Plans Fact Sheet in Spanish

 Every Dog’s Legal Guide 

October 30, 2008 Posted by | Animal Rights And Awareness, Just One More Pet, Pets, Political Change | , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 4 Comments