Americans love their pets. The size of the U.S. pet market is a testament to this devotion. The American Pet Products Association estimates that Americans in 2014 spent $58.04 billion on their pets, which was more than three times the amount spent in 1994. Sixty-five percent of all U.S. households own a pet, with over 300 million U.S. pets in total.
As many of your clients may consider their pets to be valued members of their families, the initial estate-planning conference with a client should include a discussion of who will care for the pet in the event of the client’s disability and/or death. Should the disabled or deceased client’s assets be used to pay for the care and maintenance of the pet? Should the selected caretaker of the pet be compensated or receive a bequest for the services that he’ll render in caring for the pet? For single individuals who don’t have family in close proximity, finding a caretaker or organization may be challenging.
Fortunately, the law concerning whether an individual can create a trust for the benefit of an animal has evolved significantly over the past 25 years. Pet trusts are now recognized in 46 states and Washington, D.C. Here are some of the most common concerns to address in such documents of which advisors should be aware.
Selecting a Caretaker and Trustees
It’s important that a pet owner select a person who’s willing to serve as caretaker of his pets in the event of the owner’s death or incapacity. The pet owner should speak with the individuals he selects to serve as the caretaker and successor caretaker for his pet to make sure that they’re willing to accept this responsibility. If the pet owner creates a trust that’s directed to pay all expenses relating to the care of the pet, this may make it easier to secure a caretaker. The caretaker won’t have to spend any of his money caring for the pet. Additionally, the pet owner may create a fund to compensate the caretaker for his services. The owner should discuss with the caretaker the amount that he’ll be paid for his services.
The trustee selected should be an individual or an organization that will make sure that the money that the settlor places in trust is used as directed in the trust instrument.
Written Directions
To educate the caretaker, a pet owner should prepare a written document that sets forth information about his pet. Providing directions and information will assist the caretaker in making the guardian transition easier. For example, if the pet is a dog, how often is he walked? How often is he fed? What’s his favorite food? Are there any foods that should be avoided?
The medical history and the name, address, phone number and email of the pet’s veterinarian will also be helpful. The pet owner should also provide any other relevant medical information, such as whether the pet has any medical ailments and the medications the pet is taking.
If the caretaker lives in the same neighborhood as the pet owner, the pet owner should provide the names and contact information for dog walkers and the amount of compensation paid to the dog walkers.
If the pet owner has purchased a cemetery plot for the pet, he should advise the caretaker of the name, address and contact information of that cemetery. The pet owner should provide copies of the cemetery deed and/or contract and should advise as to whether funeral expenses have been prepaid.
The pet owner should also advise the caretaker as to whether the pet owner has created a trust or a fund to pay for the care of the pet, burial and cemetery maintenance. If so, the pet owner should provide the trustee’s name and contact information.
Disability of Pet Owner
A pet owner may consider inserting various provisions within his power of attorney (POA) form relating to the care of his pet. Within the POA form, the individual may want to provide that in the event of his incapacity, custody of the pet should be delivered to a named individual or facility. If either the designated individual or the facility can’t provide custody, he should name a successor. If the named caretakers and successors aren’t available, the pet owner can give the attorney-in-fact the authority to find alternative temporary or permanent living arrangements for the pet.
The POA form can also direct the power-holder to use the pet owner’s assets to pay all expenses that may be incurred in caring for the pet during the pet owner’s disability. Such expenses may include veterinary care, pet hospital stay, pet food, dog walkers and groomers.
Joint Custody
Unrelated individuals living together may purchase or adopt a pet. If they decide that they’ll no longer live together, who gets custody? To avoid issues involving legal ownership in situations in which individuals share joint custody of a pet, the owners may want to execute an agreement that acknowledges who should be treated as the owner of the animal. A presumption may be created if the pet is registered to a particular individual or a dog license lists the owner. However, it doesn’t necessarily mean that disputes won’t arise. States may have statutes that provide who will be treated as the owner of a pet that was lost or stolen and was adopted by a new owner.
This article is adapted from the author's original piece, "Protecting Pets" in the December issue of Trusts & Estates.
