In pets they trust Surveys of pet owners consistently show they consider their animal companions more than just possessions.
Legal avenues can ensure
that animals are cared for
after their owner's deathBy Lyn Danninger
ldanninger@starbulletin.comMost pet owners think of their animals as members of the family, but few have made any arrangements for their pet's care should anything happen to them.
Laws on the books in most states, including Hawaii, and the federal Internal Revenue code traditionally have not helped improve pets' standing. In the eyes of the law, a nonhuman family member is not a family member at all, but an item of personal property.
Yet surveys taken by national organizations such as the American Animal Hospital Association consistently reinforce just how much we think of our pets.
For example, 79 percent of pet owners said they give their pets holiday or birthday presents; 69 percent said they often sign letters or cards from them and their pets; and 55 percent consider themselves as mom or dad to their pets, according to an American Animal Hospital Association pet owner survey.
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The pet population in the United States continues to grow. More than 58 million households own a "companion animal," according to the American Veterinary Medical Association. Then there are the millions of birds, fish, horses and rodents people count as part of the family.Now a growing number of pet owners -- not just wealthy celebrities -- are seeking ways to secure proper care of their pets should their animals outlive them. Changes in some states and a bill before Congress would make it easier to care for Fluffy or Fido if the unthinkable happens.
People are now making greater use of gifts, usually in trust, to provide funds to a person who promises to care for a pet.
Currently, the federal tax code does not recognize a trust with an animal as a beneficiary. It also does not permit an income or estate-tax deduction for gifts to a trust when the distributions are solely for a pet.
Similarly, a trust that names a pet as a beneficiary would not be legal. A valid trust requires a beneficiary who has legal standing to enforce the duties as a trustee.
But in California a section of the probate code now permits trusts for the care of animals but stops short of making them enforceable. Because a pet is considered property, it lacks the legal standing necessary to enforce the duties of a trustee.
But Alaska has gone one step further. It makes pet trusts valid and enforceable for the life of the pet, up to a maximum of 21 years. The statute solves the human beneficiary problem by providing that a pet trust may be enforced by any designated individual or, if necessary, by an individual appointed by the court.
New York enacted a statute similar to Alaska's and makes pet trusts fully enforceable.
The bill now before Congress, sponsored by Rep. Earl Blumenauer (D-Ore.), would amend the Internal Revenue code to treat trusts established for pets in a similar manner as charitable remainder annuity trusts and charitable remainder trusts.
These types of trusts accomplish a noncharitable purpose for a while, then, at the death of the beneficiary -- in this case a pet -- the trust terminates and what's left goes to charity, said University of Hawaii law professor Randy Roth.
"Basically, this legislation would take away what would otherwise be a tax problem with setting up a trust for your pet," he said.
In Hawaii there are no laws relating to how pets can be cared for should their owners die before them. Thus, concerned pet owners who want to ensure that the animal is taken care of must rely on the cooperation of animal-loving friends or family.
Honolulu attorney Mitzi Lee, who is familiar with legal issues relating to pets, says concerned Hawaii pet owners can take some steps to plan for their pet's future.
Lee recommends first specifying in a will who you intend to care for the pet and how much money you intend to leave for the animal's care.
"For me, I would like to know who my dog is going to," she said. "While legally the person does not have to use the money to take care of the pet, at least your wishes are known."
You also need to have a conversation with that person about the arrangements, Lee said.
"My advice would be to ask someone to care for your pet in case of your death. You should do this before you do a will so it doesn't come as a surprise. If that person agrees, you can leave money to that person with the hope that the money would be used to care for the pet."
Since circumstances can change, it would also be ideal to have a backup person as an alternative caretaker who would also be willing to care for the pet, she said.
The Hawaiian Humane Society produces a number of brochures and printed materials that can help in planning for a pet's future. You can set up a living trust and include arrangements for your pet.
It ensures that your wishes are communicated when you can't. A living trust can also help avoid potential delays relating to a will and probate.
Even though Hawaii has no law relating to providing for a pet after you've gone, UH's Roth recommends speaking to someone trained in the area of trust and estate law.
"Good estate planners can help to set something up that is reasonably reassuring even though it would be better if we had specific legislation that authorizes (trusts) for pets," he said.
You can also create a pet profile that includes veterinary information, special diets, health problems, behavioral traits, likes and dislikes, and the pet's daily routine, according to the Humane Society.
The completed profile can then be given to the pet's designated guardian or anyone else who would be involved in the pet's care either permanently or temporarily.
Should the worst happen and no one can be found to care for the pet, with the help of a completed pet profile, the Humane Society will likely have an easier time finding a new home for the pet through its adoption program.
Tips for making sure your beloved animal is cared for after your death: Securing your pet's future
>> Establish a guardian for your pet. >> Include your pet in a living trust document and your will, and name a guardian. >> Create a pet profile detailing medical history, behavioral traits, likes and dislikes, daily routine. A packet of information is available from the Hawaiian Humane Society. >> If you think you will need assistance from the Hawaiian Humane Society either to find a temporary guardian or a permanent home for your pet, let them know in advance. Send them a copy of your will or living trust and a copy of the pet's profile. >> If you decide to set up a trust for the pet, consult an estate planner or lawyer.