Well…in my opinion yes…and it could be a real dog fight! I’ll explain further at the end.
We are discussing a Pet Trust which is statutorily established in Arizona and Utah, where I practice law. For many pet owners, pets are members of the family. These individuals often say that if something happens to them, they are more concerned with what will happen to their pets than to their children or spouse. They should be concerned — very concerned. Not everyone is devoted to your pet as you are. In the event you become incapacitated or die, the person who assumes the responsibility of caring for your pet may not be able to do so. Often, a beloved pet that has provided years of companionship and comfort to the owner is dropped off at an animal control facility and euthanized after the death of their owner.
Let me give you some alarming numbers from the American Society for the Prevention of Cruelty to Animals. Approximately 7.6 million companion animals enter animal shelters nationwide every year. Of those, approximately 3.9 million are dogs and 3.4 million are cats. Each year, approximately 2.7 million animals are euthanized (1.2 million dogs and 1.4 million cats).
Failing to plan for your pet can have terrible consequences after you are gone. If someone has not made proper arrangements for the care of their pet in the event they, the pet owner, becomes incapacitated or dies, they are taking a huge chance that their beloved pet will become a statistics as shown above.
But a Pet Trust can avoid such a potential nightmare.
Given the feelings of many individuals towards their pets, and the costs of care and longevity of some types of pets, planning in this area can be of critical importance. This is particularly true given our mobile society and that the laws of a different county or state may impact you and your pets or the pets of parents and other loved ones.
What Will Happen to the Pets When the Owner Becomes Disabled or Passes Away?
Most pet owners do not want their pets killed if something should happen to them. However, without proper planning, the death of the pet is almost certain in some areas. For example, in some Nevada counties, if the owner does not provide for a pet by way of a trust, when the owner dies Animal Control must take the pet to the local kill shelter if there is not a family member present who is willing to care for the pet. Some kill shelters euthanize animals 72 hours after they arrive at the facility, making it virtually impossible for anyone to have time to adopt the pet. Thus, it is critically important that pet owners know how their state and county laws may impact their pets.
Planning Tip: You can take steps to make sure your pet does not face such a tragic ending. But you have heard the old saying, “get it in writing.” Arizona, Utah, the District of Columbia, and 41 other states have passed laws allowing people to establish Pet Trust which can hold money and instructions for caring for their beloved pets. But the laws do you little good if you do not create a Pet Trust.
Fortunately, Arizona and Utah have excellent statutory Pet Trust laws on the books which give the owner real enforceable power to protect their pets by use of a Pet Trust.
What about outright gifting of money to pay for care of your pet if you become incapacitated? The law treats pets as property, and thus an individual cannot leave money outright to a pet, as “property” cannot own other property. An individual may leave an outright gift of money to a caretaker with the request that the caretaker care for the individual’s pet for the rest of the pet’s life. However, because the caretaker received the gift outright, and not in trust, no one is responsible for ascertaining whether the pet is receiving the care requested by the pet owner. Nothing prevents the caretaker from using the money for themselves. Once the caretaker receives the gift and the pet’s owner is gone or incompetent, there is nothing to stop the caretaker from having the pet euthanized, throwing it out on the street, taking it to a local kill shelter, or using the assets in ways unrelated to the care of the pet. In addition, once in the caregiver’s hands, the assets are exposed to the caregiver’s creditors and they may be transferred to a former spouse on the caregiver’s divorce.
Arizona and Utah allow a sufficient amount of money to be left for the care of your pet. The pet’s current standard of care determines the endowment amount required to provide care for the pet. Factors include: the cost of daily care (food, treats, and daycare), veterinary care (yearly teeth cleaning, shots, nail trimming, and emergency care), grooming, boarding, travel expenses, and pet insurance. Additional factors may apply in particular cases. For example, horses are expensive to maintain and require exercise, training, and a large tract of land; some birds and reptiles have very long life expectancies; and care of some pets will require construction of a special habitat on the caregiver’s property.
Planning Tip: Statutory Pet Trusts allow the pet owner to provide detailed requirements as to how the caregiver must care for the pets upon the pet owner’s disability or death.
Many pet owners do not have sufficient funds to properly care for their pets after their disability or death. Life insurance is one way to increase funds available to care for pets after the pet owner’s death.
Planning Tip: Pet owners should consider life insurance that names a pet trust or traditional trust as beneficiary to fund a pet’s care. If the pet owner is concerned that funding of a Pet Trust will reduce the inheritance of children or other beneficiaries, he or she should consider life insurance that names both (1) the Pet Trust or traditional trust and (2) other beneficiaries (or a trust for their benefit). These assets can be invested like any other assets during the owner’s lifetime, and those who currently manage the assets can continue to do so for the pet’s lifetime.
Pet Trust Terms
Here are several issues for pet owners’ consideration:
· Creating a pet panel to offer guidance to the trustee and caregiver/beneficiary, and to remove and replace the trustee and caregiver/beneficiary if necessary. Consider including a veterinarian to make the final decision regarding euthanization for medical reasons, to ensure that the pet is not euthanized prematurely by the caregiver/beneficiary.
· Paying the caregiver/beneficiary a monthly fee for caring for the pet or allowing the caregiver/beneficiary to live in the pet owner’s home, rent free.
· Awarding a bonus to the caregiver/beneficiary at the end of the pet’s life as a “thank you” for taking care of the pet.
· Determining how the trustee is to distribute the remaining trust funds after the last pet dies.
If the pet owner decides against creation of a pet panel to determine who will be a successor caregiver/beneficiary, the trust should name multiple successor caregivers/beneficiaries (three or more) in case a caregiver/beneficiary is unwilling or unable to serve. As a final back-up, the pet owner should consider requiring the trustee to give the pet to a no-kill animal sanctuary if there are no caregivers/beneficiaries available.
An alternative to naming individual caregivers is for the pet owner to name a local charitable organization that will ensure care in exchange for a contribution upon the owner’s disability or death. A listing of such organizations nationally is available online at www.professorbeyer.com/Articles/Animals_More_Information.htm.
To prevent the caregiver/beneficiary from replacing a pet that dies in order to continue receiving trust benefits, the pet owner should specify how the trustee can identify the pet. Micro-chipping the pet or having DNA samples preserved are two methods commonly used for verification.
Planning Tip: A good resource for pet owners is Providing for Your Pet’s Future Without You by the Humane Society of the United States (order a free kit by calling 202-452-1100 or e-mailing firstname.lastname@example.org). It includes a door/window sign for emergency workers, an emergency contact sticker for inside of the door, emergency pet care instruction forms for neighbors/friends/family, wallet alert cards, and a detailed instruction sheet for caregivers.
So, can a dog sue its owner? Well, in my opinion, yes! At least the Trustee of a Pet Trust can sue to ensure that the Pet Trust terms are being followed. (A.R.S. 14-10408 & Utah 75-2-1001)
Let’s see if I can make my case. Imagine this scenario. Let’s say I have a client with the name of “Client” who has a dog named Rover. Client and Rover live in Arizona (same for Utah).
First, I would create a Revocable Living Trust for Client. I would name a person, selected by Client, to act as Trustee of Client’s Revocable Living Trust if he/she became incapacitated or died. The Trustee would take over managing all of Client’s property if he/she became ill or died.
Second, for very good reasons I would create a separate Pet Trust for Rover and list all the requirements that Client wanted followed to properly care for Rover. I would indicate how much money the Trustee of Client’s Revocable Living Trust was to place in Rover’s Pet Trust in the event Client became incapacitated or died. I would name a Trustee of Rover’s Pet Trust, selected by Client, who was different from the Trustee named in Client’s Revocable Living Trust (again, for a very good reason).
What if Client became incapacitated and the care of Rover fell to the Trustee named in Rover’s Pet Trust? Further, let’s say Client’s Trustee of his Revocable Living Trust never did like Rover and thought Rover should go to a kill shelter and, therefore, refused to fund Rover’s Pet Trust with the amount of money required.
In my opinion, the Trustee of Rover’s Pet Trust per A.R.S. 14-10408 would not only have an enforceable right to sue the Trustee of Client’s Revocable Living Trust to force the performance required of funding Rover’s Pet Trust, but would have the affirmative duty to so.
So now follow this:
The Trustee of Rover’s Pet Trust represents Rover.
The Trustee of Client’s Revocable Living Trust represents Client.
The Trustee of Rover’s Pet Trust suing the Trustee of Client’s Revocable Living Trust is the functional equivalent of Rover suing Client.
So, it’s really not too far-fetched of a scenario that a dog can sue its owner.
Leaving a beloved pet without enforceable instructions for care and a vessel to hold and monitor money for that care could cost them their life. I feel a Pet Trust which is statutorily backed is an absolutely necessity for most pets.
We have created many Pet Trusts at our firm and will be happy to offer you a free consultation to see if a Pet Trust is for your beloved friend. We feel they deserve your consideration. Call for a free consultation.
Ben E. Connor
Attorney at Law
The Connor Law Firm, PLC
9777 N. 91st Street
Scottsdale, Arizona. 85258
800-679-6709 (toll free)
Lic. Arizona & Utah
(Nothing in the above information should be considered legal advice and no attorney client relationship has been formed without a written engagement agreement stating so.)