This column first appeared in the San Antonio Express News on April 27, 2018
Dear Mr. Premack: My wife and I love animals and have two dogs and a cat. Our finances are stable enough that we can provide substantial inheritances to our children. But we also want to provide money for the care and comfort of our pets after we die. In our old Wills we just gave the pets to our son with some extra money. Now we want to set aside a more substantial sum and are wondering if there would be a viable approach. – PR
Pets are vitally important in the lives of their caretakers. Your animal companions add a unique dimension to your lives, so your desire to see that they are properly cared for is admirable.
You ask what would happen when you die, but Texas law allows you to plan for after death and to plan for disability. If both of you were to become suddenly ill, you need to have an emergency care plan. Who will feed and see after your pets if you are hospitalized? If you were to gradually decline, you want to keep your pets nearby for love and therapeutic value but need someone to supervise their care (if you cannot drive, you cannot take your pets to their vet appointment). If you were to die, you must at least know who will take your pets and how they will afford to pay for necessary care.
Here are several suggested planning steps you should consider:
Talk to your Elder Law Attorney about an updated Durable Power of Attorney. Give your Agent written permission to take custody of and to provide care for your pets should you become ill. That Agent should be authorized to use your funds to purchase supplies, pay veterinary bills, and pay a caretaker for your animals (if the Agent is not going to be the caretaker). You may want to make a special Limited Power of Attorney for a backup caretaker, separating the pet care issues from your general financial issues.
Select a backup caretaker for your pets. Be sure that person agrees to the role and gets to know your animals. Arrange for that person to check on your status regularly. Make a written record of your animals’ health care and wellness routines. Provide instructions for emergencies, listing the vet who has their records, their medications, their diets, and their exercise needs. Give a copy to the backup caretaker.
Talk to your Elder Law Attorney about a formal Pet Trust. Texas law specifically allows you to set aside funds to care for your animals, so long as the amount is not excessive. (Remember Leona Helmsley’s $12 million trust for her dog was challenged in court and ruled to be excessive.) A Pet Trust can provide for any companion animals who were alive while you were alive, but Texas law does not allow you to provide for their offspring. The Trust must end upon the death of the last of your pets, and any remaining funds must be distributed as you direct.
The Pet Trust can be included as part of your Will or as part of your Living Trust. A Living Trust would require the Trustee to provide for your personal needs and to provide for the welfare of your pets if you become ill. A Will with a Pet Trust is effective only after you die, providing for the welfare of your pets. If you put the Pet Trust into your Will, then it is doubly important that you have a Durable Power of Attorney which gives your Agent authority to care for your pets.
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.