Incapacity Planning and Pets

 

Few US adults have an estate plan. Even fewer have included a pet in their plan. Perhaps you have an estate plan that addresses who will take your pet when you die. But does it address the possibility of your incapacity and the need for a temporary pet caretaker?

Formally incorporating your pet into an estate plan can ensure that, no matter what happens to you, your animal companion will be cared for like any other family member.

Americans Love Their Pets

The US pet ownership rate is among the highest in the world and has grown over the past few decades. However, calling them “pets” (generally considered property under the law) does not do justice to how much we value our furry, feathered, or scaly best friends.

A 2023 Gallup poll shows that 62 percent of Americans own a pet, and more than one-third (35 percent) have multiple pets.[1] Ninety-seven percent of pet owners say that their pets are part of their family, including 51 percent who say they are as much a part of the family as a human member.[2]

Pet spending per household has also increased and is now around $600 to $800 per year.[3] In keeping with the changing cultural mindset that pets are members of the family, owners are spending money on toys, treats, clothing, travel, daycare, pet sitting and boarding services, pet-specific insurance policies, and premium, healthy pet food.

The Need for Pet Estate Planning

Spending more on pets reflects owners’ recognition that animals have complex physical and emotional needs that are not very different from ours. The law is also slowly starting to catch up with the idea that animals are living, feeling beings who deserve legal protection.

While US law has historically classified animals as chattel (i.e., property), this began to change in the 1800s with the introduction of animal cruelty statutes. Today, animal rights have advanced to the point where some states consider a pet’s well-being or best interest after their owners’ divorce.

Estate planning is another area in which legal decision-making increasingly reflects the deep and meaningful bonds we share with our pets. Every state now recognizes pet trusts, and more people are including pets in their estate plans to ensure their beloved companions are provided for if they die or suffer incapacity.

The pandemic was a wake-up call for many to get their estate plans in order. COVID also showed that when a pet owner gets sick and can no longer care for their animal companion, the pet could end up in a shelter. Of the approximately 6.3 million pets entering US animal shelters each year, nearly 1 million are euthanized.[4]

Not having an estate plan can leave big questions unanswered, such as who will care for a minor child after a parent’s death or health emergency. Without an estate plan, the same questions apply to pets.

This does not mean pet owners should go to the extremes Leona Helmsley did when she left $12 million in her will for her dog. However, there are good reasons why pet parents should formally include pets in their estate plan and not rely solely on an informal verbal agreement with a caretaker.

Estate Plan Documents for Pet Caregiving

Best Friends Animal Society, a nonprofit animal welfare organization, recommends that owners arrange to have emergency and permanent caretakers for their pet.[5]

According to Best Friends, pet owners should:[6]

  • Arrange for multiple caretakers.
  • Decide whether multiple pets should stay together or be placed with different caretakers.
  • Talk to potential caretakers about their pets’ needs, provide them with feeding and care instructions and veterinarian contact information, and give them a key to the house.
  • Let friends and family know who the available caretakers are and how to reach them.

Best Friends also recommends incorporating emergency and long-term pet care in a formal estate plan, such as a will or trust.

Pets and Wills

Because pets are viewed as property under the law, they become part of a person’s estate when they pass away. As a result, a pet owner can leave their pet as a gift to someone else, the same way they would any other property. The beneficiary of the pet would be known as the pet guardian.

However, there are shortcomings to planning for a pet’s care in a will.

First, the person named as pet guardian could decline the gift of a pet, as there is no legal requirement for a beneficiary to accept any gift from a will. Your will can provide for a backup pet guardian or even multiple levels of backup pet guardians. But what happens if all of them decline the gift? You may think it would be a good idea to name an animal welfare organization as a beneficiary as a backstop, but Best Friends cautions that these organizations typically cannot offer the type of long-term care a pet needs. So, what happens if everyone you named as a pet guardian declines or cannot care for your pet?

Second, a will only takes effect upon death. Its terms do not apply when the pet owner is alive but incapacitated and can no longer care for the pet. Therefore, the pet could be left in legal limbo if the owner is sick, comatose, disabled, or otherwise unable to care for their pet.

Pet Trusts

A pet trust allows an owner to exert more control over their pet’s future care, both after the owner dies and during their lifetime if incapacitated.

All 50 states and the District of Columbia have a pet trust law. These laws vary somewhat, but in general, they allow a pet owner to create a trust and place money in the trust for the benefit of their pets, payable to a named caretaker(s) under the oversight and at the discretion of a third-party trustee. Depending on state law and the type of pet trust, the trust’s instructions can name a specific caretaker and provide authority to the trustee to find an alternative caretaker if the original cannot or will not take possession of the pet.

Most states allow pet trusts to be established during the pet owner’s lifetime, so the terms of the trust would apply even when the pet owner is alive but incapacitated. These provisions can be highly detailed, specifying how the pet should be cared for, including feeding, housing, veterinary care, and burial or cremation.

Pet trusts can be designed to benefit multiple pets, including different species of animals and sometimes the offspring of those pets. This should be considered when deciding how much to allocate to a pet trust, as certain types of pets require more substantial funds to cover their care and needs.

The owner can even state in the trust document that any money remaining after their and their pet’s death goes to a nonprofit animal rescue organization (or any other beneficiary—human or otherwise—of their choice). They can further state how—and how often—trust money should be distributed to the caretaker for the pet’s care or even for compensation for the caretaker.

Pet owners can be as meticulous as they want in their trust instructions. They can also allow the trustee and caretaker some discretion to decide what is best for the pet. The trust should be funded with sufficient resources to care for the pet adequately over their expected lifespan.

Pet Care Power of Attorney

Pet owners can also use a power of attorney to plan for pet care during their incapacity.

A power of attorney is a document that gives one person the legal authority to decide for someone else. Depending on state law, the document can be limited or broad in scope. It can also be ongoing (effective until the document’s creator dies or revokes it) or only effective for a defined period.

A power of attorney for the care of a pet should include language that authorizes a named individual to make pet care decisions on the owner’s behalf. It could provide broad authority, stating that the pet caretaker is allowed to do whatever they think is reasonable, or it could limit their authority to specific actions.

A power of attorney can address pet issues like care services and finding a new home for the pet if the owner remains incapacitated for a long period or has to move out of their home.

Pet Incapacity Planning Is Often Overlooked

Your animal companions have a special place in your heart. But do they currently have a place in your estate plan?

Even the most detailed and well-thought-out estate plans may fail to include pet care and incapacity provisions. If you have questions about pets and estate planning or you need to update your estate plan to cover a new pet, get in touch with our attorneys.

[1] Anna Brown. About half of U.S. pet owners say their pets are as much a part of their family as a human member, Pew Rsch. Ctr. (Jul 7. 2023),
https://www.pewresearch.org/short-reads/2023/07/07/about-half-us-of-pet-owners-say-their-pets-are-as-much-a-part-of-their-family-as-a-human-member/.

[2] Id.

[3] Michelle Megna, Pet Ownership Statistics 2024, Forbes Advisor (Jan 25, 2024),
https://www.forbes.com/advisor/pet-insurance/pet-ownership-statistics/.

[4] Pet Statistics, ASPCA,
https://www.aspca.org/helping-people-pets/shelter-intake-and-surrender/pet-statistics (last visited Aug. 22, 2024).

[5] Pet Care Resources, Best Friends,
https://bestfriends.org/pet-care-resources/estate-planning-pets-preparing-will-or-trust (last visited Aug. 22, 2024).

[6] Id.