Without proper planning, a person’s dog, cat, or other non-human companion might end up in a shelter where they could be euthanized.
Planning can be as simple as asking a family member or friend to assume responsibility for your pet’s care upon your incapacity or death.
You may also want to add a provision to your will or will substitute, to transfer ownership of your pet to a designated person at the time of your death or permanent incapacitation. This could be especially important if there is reason to believe that someone other than the designated person would try to gain possession of the pet.
It also can be helpful to share pertinent information with the designated person. This might include your pet’s medical history, nutritional needs, favorite snack and toy, or preferred walking distance and route.
You might also want to include some philosophical thoughts on future decision-making. For example, what would you want done if your pet were to be diagnosed with a life-threatening medical condition that could be alleviated by expensive surgery? Would the animal’s age matter?
You cannot anticipate all the possibilities, but putting your general thoughts in writing could increase significantly the likelihood of good decisions, and help the decision maker achieve peace of mind.
Depending on your instructions and expectations, it might be necessary to provide now for future funding needs. This usually can be accomplished in a will or standard trust agreement, or even informally, but a legally binding pet trust will sometimes be warranted.
The law in Hawaii viewed pets simply as property until relatively recently. You could use a will or will substitute to transfer ownership and provide funding, but the new owner could not be forced to spend the money on the pet.
Will and trust provisions intended to benefit a specific animal were considered “honorary,” and therefore unenforceable.
In 2005, Hawaii’s legislature joined a growing number of states that enforce so-called pet trusts that benefit one or more specific animals.
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 named persons 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 named 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 one reason why it can be important to provide for a backup trustee, or to add a mechanism for selecting a backup trustee.
As always, I must add that this blog does not contain legal advice and you should not rely on any of the above information to determine what is in your own best interest.
is the founder of Hawaii Trust & Estate Counsel, a statewide estate planning law firm with offices in Waimea, Hilo, Kona, and Honolulu. He has taught Estate Planning at the Richardson School of Law, and business law courses at the University of Hawaii—Hilo. He has resided in North Hawaii since 2008....MORE
OTHER ESTATE PLANNING QUESTIONS: