Ensuring the Hand That Feeds: Estate Planning for Your Pet
By Michael J. Feinfeld
A client recently came to our office with concerns about how to properly plan her estate to include taking care of her pets in the event of her incapacity or death - an issue frequently raised by single, widowed, divorced or elderly clients with pets. She was rightly concerned that her family members or social networks would not be able to step in quickly enough to take care of her pets. While non-pet owners, individuals with large immediate families or people who view pets simply as property may minimize such concerns, pet owners in New York State do have several options for protecting their animal companions in the event of their death or incapacity.
This article examines some of the techniques that can be used to plan and to provide resources for a client's animal companions in the event of a client's incapacity, disability or death. Requesting that a family member or friend act as a pet's caretaker or even providing mechanisms in a Will, Trust or powers of attorney may not provide your chosen caretakers or trustees with the opportunity to step in quickly in the event of an emergency. In fact, you must do all that you can to inform your own family, friends, neighbors and caretakers of your wishes for the care of your pets.
Providing for pet care upon incapacity or disability:
One of the primary concerns of pet owners living alone (or without another able-bodied person) is how to best arrange for a friend or relative to step in and take over the care of their pet if they are hospitalized or disabled. In situations where you are not able to feed and care for your pets, it is essential for you to appoint someone who is available and authorized to enter your home and who can access funds and materials to properly care for your animal(s). This can potentially be arranged on an informal level by requesting friend(s) or relative(s) to care for your pets. When utilizing an informal arrangement, it is a good idea to inform your family members, friends or the person who is responsible for taking care of your affairs as well as any designated agent listed on a durable power of attorney, of a designation of a caretaker for your pet.
Simply informing your caretaker(s) and agent(s) may not provide you with any level of certainty or reassurance, however, since there is no legal means of enforcing your wishes or fiduciary duty regarding the honorary care of your animal companions. An informal arrangement may not be honored by your family, designated agent(s) or fiduciaries tasked with managing your affairs, and your informally designated caretaker may lack the ability to access your funds to care for your pet.
When a more formal arrangement for your pet caretaker is desired, coordinating your arrangements with your current estate plan can further ensure that your pet is cared for in the event of your incapacity. A New York State Durable Power of Attorney with a Supplemental Gifts Rider expressly empowering your agent to distribute funds and make gifts to your pet's caretaker for the care and maintenance of your pets can help ensure that your wishes are fulfilled. The durable power of attorney and complimentary gift rider, essential building blocks of every estate plan, are very flexible documents which can direct that your agent disburse assets to your pets' appointed caretakers and create a legal obligation on the part of your appointed agent(s) to administer your property with care and according to your wishes (New York General Obligations Law ("GOL") § 5-1505). Under New York State's power of attorney statute, an optional monitor may be appointed to ensure that your assets are directed towards your pet(s) (GOL § 5-1509).
Although the creation of a power of attorney may provide some enforceable assurance that your pets' caretakers will have access to your funds, unless these power of attorney forms are kept up to date and coordinated with your financial institutions, your agents may have trouble getting your bank and broker to accept their authority over your accounts. In the wake of increased regulation of financial institutions, banks and brokerage houses have become increasingly skeptical of agents bearing powers of attorney. (See Paul Sullivan, "Power of Attorney Is Not Always A Solution," N.Y. Times 4/22/14). Moerover, the power of attorney does nothing to protect your pets in the event of your death, since the powers of your designated agent end at death. If further certainty regarding the care of your pet(s) upon your death is desired, a pet-trust or a bequest to your caretaker in your Will should be considered.
Providing for pet care upon death:
Prior to the enactment of the Trusts for Pets statute in 1996 (New York State Estates Powers and Trusts Law ("EPTL") § 7-8.1), the ability of a pet owner to create a trust or a bequest (a gift in a Will) to benefit an animal was limited. The principal means of providing for an animal companion at death was to leave a bequest for another individual for their care, since money cannot be left outright to an animal no matter how much a part of your family your pets are. Leaving bequests to your designated caretaker is still a powerful means of providing assets for your pet's maintenance; however, such a strategy does not ensure that the assets will be used for the care of your pet(s) or allow you to provide express directions for your pet's care.
While assets still may not be given or bequeathed directly to a pet, EPTL 7-8.1 does allow a New York resident to establish a trust for the benefit of their animal companion. So called "pet-trusts" can be either established in a trust which is formed while the creator is alive, a so called living trust, or via the pet owner's Last Will and Testament, a testamentary trust. As is standard for all trusts, the creator will appoint a Trustee to manage and distribute assets for the care of the beneficiary i.e., your animal companion.
In addition, if a pet trust is established and funded as part of a living trust, the trust instrument can be drafted to allow your designated Trustee to begin caring for your pet immediately in the event of your disability or incapacity. The proper establishment of a lifetime trust may also have the further benefit of preventing problems with a bank or broker, since trust accounts are established with the trustee succession in mind. While the formality of creating a pet trust is more complex and expensive than an informal arrangement and may also add to the expense of drafting your Will (if a testamentary trust is chosen), such an instrument will provide clarity and liquidity to your appointed Trustee(s) and help ensure that your pet will be taken care of the moment the trust becomes operative.
Circulating your plan for care of your pets:
As noted above, even the establishment of a formal pet trust may not ensure a seamless transition for the care of your pet in the event of your death or disability. Adding to the complexity is the fact that the police and your landlord or your building superintendent may not allow anyone to enter your apartment or home without your express permission or a court's authorization. Recent calls made by our office to a precinct of New York City Police Department revealed that it is the policy for an officer discovering uncared-for pets upon being dispatched to a home of a deceased or disabled individual to take the animals to the ASPCA or other local pet shelter. Upon further inquiry, I was informed by the community relations office that while an investigating officer may look for documents in the home or ask a doorman or maintenance supervisor whether someone will take the pets, they are under no obligation to do so and may simply take the pets to the shelter.
What may be done then to prevent your pet(s) from being taken to a shelter in the event of your death or incapacity? While absolute certainty is impossible, it is clear that transparency regarding your plan and your wishes for the care of your animals is the best strategy for ensuring their care. Let your neighbors, doorman, maintenance supervisor and family members know of your plan and your instructions for who is responsible for your pet(s) in an emergency. Further, copies of all relevant documents appointing caretakers or a pet trustee for your pets should left in a visible place in your home. Additional notes and instructions on what to do in the event of an emergency may also be carried on your person outlining who is authorized to care for your animal companions.
Regardless of what route you choose in designating someone to care for your pet(s), sharing your plan with as many people you trust can be an essential tool in ensuring the care of your animal family members in the face of an uncertain world. For further help regarding planning for your pet(s) or coordinating their care with your estate plan, please contact me at: firstname.lastname@example.org.