Estate planning should include a "Pet Provision"

by Sandra Bolan

And to Fluffy, I bequeath...

. In 1968, Eleanor Ritchley, Quaker State Oil heiress, left $4.2 million to Auburn University for the care of her 150 dogs

. In 1996, Sydney Altman of California, left $1 million to his Cocker Spaniel, "Samantha"

. "Blackie", the last cat in a household of 15 cats, was left $25 million by its owner, Ben Reya

. In 1931, Ella Wendell of New York left $15 million to her Standard Poodle, "Toby"

 

A pet's owner is the sole advocate of their dog or cat's health and safety. But what happens when that owner is no longer able to care for the animal? How does the pet's health and safety remain protected?

It's a topic that no one wants to think about, let alone discuss, which explains why only about half of Canadians over the age of 18 have a will, according to Sandra Foster, president of Headspring Consulting Inc. and author of "You Can't Take It With You".

"I believe it's really important to do an estate plan because it allows you to put your instructions and wishes in writing," said Foster. "If done properly, that means they'll be carried out the way you want after you pass on."

Owners treat their pets like family members, but from the Canadian legal perspective, pets are considered to be property. "Although, in my mind, they are perpetual 2-year olds, which is the reason we love them so much," said Foster.

According to a 1999 USA Today poll, 80% of pet owners brag about their pets to others; 79% allow them to sleep in bed with them; 37% carry photos of their pets in their wallets; 31% take time off work to stay home with sick pets, and 20% have altered romantic relationships over pet-related issues.

Despite being viewed as property by the law, pets require immediate care - unlike a car or home - in order to survive, which is why pet owners should consider including special provisions for them in their wills.

"It's often done very informally in Canada," says Barry Seltzer, a Toronto-based barrister and solicitor who has a preferred area of practice in estate planning. "If you don't do anything, you're leaving it up to the beneficiaries or the people who are administering your estate, and it doesn't always end up the way you would have wanted."

A pet provision is the simplest way to make your wishes known to your will's executor. According to Seltzer, "It's a guideline in the form of a non-legal binding letter or memo that you're giving the person to whom you're delivering the pet. It wouldn't be legally binding on them but, morally, it would be. To make it legally binding, you'd have to include it in your will and then there would have to be some sort of mechanism for enforcement, like the executor."

A pet provision outlines who is to take ownership of your pets upon your death. It also includes the pet's medical history, the name of the pet's veterinarian, and any other important information that only the pet owner would know.

Perhaps one of the biggest challenges in putting together a pet provision, but arguably the most important, is choosing the person who will take care of your pets. Questions pet owners need to ask themselves when deciding upon that person should include: "Does that person really love dogs - not just animals - but dogs? Do they have the space? Do they have the physical abilities to attend to the dog's physical needs?" said Foster. "You can't necessarily say this person's going to be able to take care of your pet for the rest of its natural life. But if it's the right kind of person, he or she will look after your pet's best interest."

And always ask the person chosen as the pet caretaker before naming them in a will. "You might find that the reason why they don't have a dog right now is because they have an allergy you don't know about," said Foster. "They might say, 'Thanks, we'll do it in a pinch, but don't make us first on your list.'"

The pet provision should also note alternative caretakers in case the first person's circumstances change and he/she is no longer able to care for the pet. But what happens when nobody is interested or able to take care of your pet? According to Foster, "In that situation, I think it's a good idea to talk to your local Humane Society to see what options are available in your community. You don't want to be in a situation where there is no one who would be willing to take care of the dog."

Once the caretaker is chosen, another issue that needs to be considered for inclusion in the pet provision is whether or not the pet owner wants to leave money to that person for the care and maintenance of the dog. If a sum of money is to be left for the pet's caretaker, the amount should be enough to cover the cost of food, grooming, toys, and other items regularly purchased for the pet.

According to the American Veterinary Medical Assoc., the average annual veterinary expenditure, per household, is $186. for dogs, $147 for cats, $11. for birds and $226. for horses. (Costs are in U.S. funds.)

If the owner has pet insurance, they should also think about whether or not it is to be paid in full upon their death, or if the appointed caretaker is to continue paying the premiums with the funds left to them.

"How far do you want people to go in life saving measures for your pet?" says Seltzer. "Also, final arrangements... do you want to make those decisions before you go, and include them in a separate document to give the person who is your pet caretaker? Or do you want to put them as a formal requirement in your will?"

Not only should pet owners plan for their pet's life once the owner is gone, but according to Seltzer, plans should also be in place in case the owner becomes unable to care for the pet while still alive. What happens if an owner becomes incompetent and hasn't provided for his or her pet? Whoever you have selected as your legal representative during that time will deal with all your property, including your pet. So you may want to make a separate provision for that as well. Almost like a power of attorney," he says.

According to Gerry Beyer, a law professor at St. Mary's University School of Law in San Antonio, Texas, there are two other steps pet owners should take to ensure the continued care of their pets. One: carry a card which contains information about the pet, including its name, type, special instructions and emergency contact information. "If the owner is killed or injured, emergency personnel will recognize that an animal is relying on the owner's return for care and may notify the named person or take other steps to locate and provide for the animal," says Beyer. Secondly, Beyer suggests that owners should post signage on entrances to their dwelling to indicate there are pets residing at that location.

According to Foster, "There is no standard procedure. You have to do what you feel is most appropriate for your situation."

Sandra Bolan is a freelance writer and professional dog walker. She lives in Newmarket with her dog, "Wally", manners, doggie paradise is theirs to explore.