This column first appeared in the San Antonio Express News on January 5, 2016.
Dear Mr. Premack: I heard you speak at the North Star Mall Walkers group, and have a question from my sister-in-law. She loves her pets. They soothe her and bring her joy. She’d like to know what estate planning she can do to take care of them if they are alive when she passes away. – PO
Enduring care for your dog, cat or other companion animal is a chief concern for many pet owners. Your pets bring comfort, give love and are often viewed as vital members of the family.
Immediate care for your pets may be needed if you become suddenly ill. Or you may be in gradual decline, and worry about the care of your pets if you have to move to a nursing facility. Your death would certainly leave your pets in a precarious position.
Planning for your pets can be an integral part of your own life care planning. Consider, at the least, the following steps:
Organize a backup caretaker for your pets. Arrange it so that someone checks on your well-being regularly, and give them permission to care for or find care for your pets should you lose that ability.
Write down your pets’ routine and give any instructions for emergencies. List your pets’ medications and special diet, and identify their veterinarian.
Have your Elder Law Attorney prepare a valid, binding Durable Power of Attorney for you. Include authorization for your Agent to access your funds in order to buy supplies, pay the vet, and pay a daily caretaker if the Agent will not assume that role.
Have your Elder Law Attorney mention your pets in your Last Will and Testament. Texas law provides a formal method to leave funds for your animals’ care. The Texas Property Code empowers you to establish a Pet Care Trust. It can provide for any pets who were alive during your lifetime and who survive you (but not for their offspring or for any animals someone else might adopt after your death), The Trust must end upon the death of your pets.
You can include a Pet Care Trust inside of your Will or inside of your Living Trust. For instance, your Living Trust should have provisions requiring the Trustee to provide for your personal maintenance and health care; it can also require the Trustee to see to the welfare of your pets should you lose the ability to do so yourself. If the Pet Trust is contained inside your Will, then it will only take effect upon your death, so you need – at least – the Durable Power of Attorney in case you merely become incapacitated.
When your attorney writes the Pet Care Trust, you will instruct to whom the remaining funds will be distributed after your pets die. It would be unusual to fail to specify a human beneficiary, but if you do omit that instruct, the law passes the Trust’s remaining funds to your heirs at law.
Leona Helmsley was famous for leaving most of her estate, about $12 million, in a trust for her dog. The court in that matter (in New York) trimmed the bequest to $2 million – more than enough to provide for a single pet! Likewise, the Texas courts are empowered to modify a Pet Care Trust if an interested person alleges you were excessively generous to the pets. The court can trim the Pet Care Trust to an amount required for the pets’ actual care, diverting the rest to the human beneficiaries.
Consult with your Elder Law attorney about modifying your existing plan, or creating a new plan to care for your pets upon your disability or demise.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.Premack.com.