You are guaranteed the best result in estate planning if you begin earlier rather than later to take advantage of as many planning choices available to you. The key is - you are never too young to begin estate planning for your dogs.
Approximately seven years ago, I was asked if I would be interested in giving a seminar to my local club, the Scottish Terrier Club of Greater New York, on the subject of estate planning for your dog. I immediately said yes. This is an incredibly important subject. I think all of us, much like if we had a disabled child, understand and acknowledge it is especially critical and valuable to implement estate planning which will oversee the continued care of our dogs when we are no longer here or able to do so.
Through effective elder law planning, an individual is able to maintain control and enforce his or her choices, even when he or she is no longer able to speak for himself or herself.
It is in the area of elder law that I often feel most rewarded and gratified because I am able to work with my clients and give them a pro-active voice. They are not reacting to circumstances forced upon them. They are making their voice known and exerting control over their assets for some point in the future when they have either passed away or when they may become physically or mentally incapacitated and can no longer express what their wishes are for their dogs. In doing estate planning you are now allowed to continue to make decisions to maintain control over how to take care of your dog when you are no longer there or able to do so.
There are three documents you need to prepare to accomplish this estate planning: a Power of Attorney, a Trust and a Will.
The Power of Attorney is a document you may already have prepared. But, you must have a provision in your Power of Attorney that would be a strict directive to ensure that if you are incapacitated or incapable of caring for your dog, how you want your dog to be cared for will be implemented. The Power of Attorney should name the individual(s) you want to be in charge of caring for your dog. In addition to the Power of Attorney, you also want to have in place an actual Trust.
The Trust is the second document. It should also be a stand-alone document. It can be referred to in your Will as specific provisions in your Will. If you have a current Will prepared you do not need to prepare a new Will. You can prepare a Codicil to your Will that contains the Trust for your dog. The reason you need a separate Trust document is because the Will, which is the third separate document, only comes into effect upon your death. However, you can utilize the Will to instruct the Executor or Executrix how to fund your Trust for your dog if there was no need prior to your death for anyone to care for your dog. But, because of situations that many in the elderly population face, such as declining health, physical and mental deterioration, etc., it is wise to create and implement a Trust for your dog so its care will never be compromised should you not be capable of caring for your dog in a responsible manner.
Again, if you had a disabled child who was not going to be able to care of himself or herself, you, as the parent, would not blink an eye at the suggestion that a Trust should be set up to care for your child. Hence, with that identical mindset, you should draw up a Trust funded with sufficient money to care for your dog, at least an amount large enough until a more permanent home life is established for your dog.
Once you finalize the Trust, fund it with an amount of money so that there are funds there in essence on an emergent basis to be sure your dog can be taken care of appropriately. The Trust will outline what happens to your dog when you, as their human, either die or become incapacitated. Hence, at a point in time when (1) you can no longer speak because you are not physically capable of speaking, (2) you are no longer mentally capable or competent to make appropriate choices on behalf of your dog, or (3) you have passed away, this Trust which you prepared when you were of sound mind will be there to speak for you. The Trust will ensure that your, and only your instructions and wishes are complied with by the individual(s) you name in your Trust as Trustee.
There should be two separate people named in your Trust, one who you are authorizing to be the authority to handle the financial aspect of your Trust, and the other person is the individual who you are conveying the right to care for or make decisions on behalf of your dog. These two responsibilities rarely should be handled by the same person, strictly as a safeguard, a check and balance, to ensure that more than one person is involved on behalf of your dog.
In both the Power of Attorney and the Trust, you can be as detailed as you wish insofar as what choices you have made and what you are asking be accomplished on behalf of your dog. It is always a good idea for each of us to maintain a file, a dossier if you will, for each of your individual dogs. It should include that specific dog's registration, the list of its doctors, health and medical records, special diets and needs, specific food and treats it eats, when it is fed, its medications, preferred groomers, handlers, pet sitters, and whether all or certain dogs should be maintained in a single household or together.
The choices that you make for the person you list to be the Trustee caregiver of your dog may very well be your spouse, may very well be the person who you co-own the dog with, may very well be none of these people. The person you co-own the dog with may have absolutely no interest in physically having the dog live with him or her. Your spouse may not want the responsibility or may not be able to continue to care for your dog because of his or her own mental or physical decline to truly care for the dog. Your children may not want to have the obligation to care for your dog. Even if they do, they may not be able to because of their housing situation.
So, whoever it is who you choose to care for your dog, one of the most important things you must do is to confer with him or her first, make certain they agree to assume this responsibility, no hard feelings if they don’t, and then, if at all possible, put it in writing and in the Trust. You always need to have one, if not two, back-up people, both as to who is going to care for your dog and who is going to be the person responsible for the financial aspects of the Trust. This is because when it comes time to actually begin to care and take responsibility for your dog, the first person who you chose may not be able to perform, or choose not to perform. Then, all your planning falls apart because the one person who you chose decides they don’t want to do it. If you have a second back up, and if possible a third back-up, you are always in control, you always, as best is possible, have in place those people who you feel comfortable will care and love your dog.
There are other aspects of law that affect Estate planning for your dog. Matrimonial law and co-ownership agreements also come into play. Matrimonial law must be considered because, regardless of whether you have a co-ownership agreement or not, if you have purchased your dog while you were married, it is an asset of the marriage, black and white. Unless you purchased your dog with an inheritance that was not co-mingled with marital assets, it doesn’t matter if you used money that you alone earned, the dog is an asset of the marriage. So, unless you only used funds that you inherited, whether your spouse is not on any papers, contracts, registrations, etc, your spouse is an owner, because your dog is a marital asset.
Perhaps your decisions are going to be unified and you and your spouse are going to be on the same page. But if you choose to have your dog go to the co-owner of the dog, your co-ownership is a business. That business is looked at much the same as if you had a partnership in an automotive dealership. Your spouse now becomes your co-owner’s partner if you pass away, etc. Your dog is personal property. Your dog is considered a chattel, which is defined as “personal possessions and property which are movable, things that have no concern with the land.”
I have had two cases recently where as part of the divorce proceedings the dog became one of the biggest disputes between the parties. Previously, the Courts in New Jersey did not want anything to do with this issue, and scoffed at the concept. Courts are now willing to get involved. But, it is costly. So, when you are doing Estate planning, you and your spouse must be very much on the same page as to how to care for your dog, regardless of whether you individually co-own the dog with another person. Your spouse has to be in agreement with your directives. And, very likely, that would be the case. But it is also very likely they would not. It is always best to confirm everything in writing when the times are good, not when you are divorcing, or in a compromised physical or mental crisis.
A critical point here is that the Power of Attorney, Trust, and Will all need to be drawn up properly.
They should not be documents you prepare yourself, or with the guidance of the various on line legal documents or sample legal documents that are available. They should not be documents that you prepare based on your discussions with other people who have Powers of Attorney, Trusts or Wills that were prepared by their attorneys. Every single individual has a unique set of facts, instructions, desires, problems and aspects of their estate planning that are exclusive to his or her issues.
The last thing you want to do is to go through the thought process and the planning process to prepare for the care for your dog when you are no longer able to do so, only to find that the document you prepared by yourself or through an on-line internet service does not do what you want it to do. By that point in time, it will be too late. You will have either passed away or you will be incapacitated and no longer have the mental or physical ability to make the appropriate decisions.
You need to see an attorney. What I suggest is to go on line or call the Bar Association of your state and get the telephone number for the Lawyer Referral Services for the county where you reside or other counties that are nearby. Call the state or county Lawyer Referral Service and request the name and contact information of an experienced attorney in the particular areas of Elder Law or Trusts and Estates. They will refer you to the participating attorneys. Then consult with the attorney you have been referred to who has the experience in these areas of law.
The last point I want to mention in relation to estate planning for your dog is Medicaid planning. In the event that you do not choose to set aside money to fund this Trust at the time you are forming the Trust, if you are ever in a situation where you choose to do Medicaid Planning, you may no longer have the funds available to fund this Trust. Also, according to Medicaid regulations, Medicaid may not view funding the Trust as an approved use of the money. So, while it is not illegal for you to fund the Trust, Medicaid may demand that those funds be returned back to your assets to be available for you to spend down before they find you eligible for Medicaid assistance.
Hence, although you have the trust provisions in place, you have no money to fund it. That could be a major problem in order to ensure your ultimate goals are carried out. Right now, the look-back period for Medicaid planning is five years. In other words, anything that you do now with your monies, from this point backward for five years, if in the interim you have set up the Trust within the five years you applied for Medicaid, Medicaid has a right to look at and question and determine whether they view the use of the monies is an acceptable use according to their regulations. If it is beyond the five years previous to when you apply for Medicaid, you do not have to inform Medicaid how you used these funds. So, whether Medicaid approves of the funding of your Trust or not, it is no longer relevant.
I realize I have covered many different areas of law. That is why, as I stated above, if you are interested in estate planning for your dog, I suggest you call the specific attorney referral service or bar association for your state or county. Ask to be referred to an attorney who specializes in trusts and estates, or in elder law. Please note that the laws, statutes and court rules vary for every state.
Fran J. Garb, Esquire has been an attorney in New Jersey since 1983 and has a general civil law and litigation practice in Morristown, New Jersey. She has practiced in elder law and estate planning for over twenty years.
Disclaimer: The information contained in this article is provided for informational purposes only, and should not be construed as legal advice or an offer to perform services on any subject matter. This article contains general information and may not reflect current legal developments, verdicts or settlements. Readers of this article should not act or refrain from acting on the basis of any content included in this article without seeking appropriate legal advice on the particular facts and circumstances at issue from an attorney licensed in the reader's state. The Law Office of Fran J. Garb expressly disclaims all liability with respect to actions taken or not taken based on any or all the information or other contents of this article.