Not long ago, the answer to this question was “no.”
Prior to 2005, the law in Hawaii viewed pets simply as property. A person could use a will or will substitute to transfer ownership, but the new owner’s promise to provide the desired care was not legally enforceable.
This was true even if the decedent had provided funds for the pet’s care.
The law designated such arrangements as “honorary,” indicating that the designated caregiver’s obligation to provide the care was moral in nature, not legal.
All that changed in 2005 when the Hawaii legislature joined a growing number of states in recognizing so-called pet trusts.
A pet trust document names one or more trustees who will have a legal duty to provide the desired level of care when the creator of the trust dies or becomes legally incapacitated. It also empowers one or more others to enforce the trust in accordance with the creator’s stated wishes.
The details of establishing a pet trust can be tricky. A statement in a will or will substitute that a particular person has agreed or is required to care for the pet would not necessarily create a legally binding pet trust. And the person named in a proper pet trust document could always simply refuse the trusteeship. That’s why it is important to provide for a backup trustee, or add a mechanism for selecting a backup trustee, if there is ever a need for one.
Relatively few of my clients feel the need for a legally enforceable arrangement. This is true even for those who are as crazy about their pets as I am about my dog, Hanai. Like me, they currently have someone in their lives who would willingly be there to love and care for their pet in the event of their death or incapacity.
The best approach for any particular person, however, is not what others might decide to do. It’s what that particular person decides to do after hearing about each viable option.
Even when there’s no perceived need for a legally enforceable agreement, it’s a good idea to give some thought to what is most likely to happen to your pet at your death or incapacity.
It’s a good idea to discuss your wishes with the designated caregiver ahead of time and, depending on the circumstances, it could be equally important to use a will or will substitute to legally transfer the pet to the caregiver at the appropriate time, for example if there’s someone else who might try to gain possession of the pet. It might also be important to provide a source of funds for the anticipated care, even if there is no perceived need to create a legally binding pet trust.
Anyone interested in learning more are welcome to attend a presentation on "Estate Planning for Pets" that will be held in Kona, at Huggo’s hBAR, on Thursday, May 19, from 4-5pm.
As always, I must add that this column does not contain legal advice, and that you should not rely on any of the above information to determine what is in your own best interest.
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