Documents Addressing Pet Care Upon Incapacity

In the estate planning process, many pet owners and their professionals overlook the possibility that the pet owner may become incapacitated during his or her lifetime and unable to provide for the adequate care of the pet.

The goal of planning for incapacity is to execute legally enforceable arrangements that avoid the costs, delays, and ambiguity that can result from conservatorship proceedings. That is, the purpose is to give trusted parties the authority to take control of your affairs without the necessity of court intervention – assuming, of course, that there are such trusted parties.

Regardless of what mechanism you use to accomplish this objective, any document should have a self-executing mechanism – language that defines what incapacity means and triggers the authority of those trusted individuals to act. For example, the document could provide that a party is deemed incapacitated if and when two licensed physicians determine, in writing, that the party is not longer able to manage his or her own financial affairs because of a physical or mental condition.

That said, the following is a brief description of the primary types of documents that may be used to create a legally enforceable arrangement for the care of a pet in the event of incapacity:

Durable power of attorney

The term “durable power of attorney” can have many implications depending on the laws of the jurisdiction involved. As used here, the term does not include documents appointing medical or health care agents or other directives (such as “living wills”). Rather, the type of document discussed here authorizes an “agent” or “attorney-in-fact” to act on behalf of a “principal” with regard to the principal’s property and financial affairs. The term “durable” simply means that the agent’s powers continue even if the principal becomes incapacitated – a feature that is necessary in this context. In terms of estate planning for pet care, the agent should be given the authority and directions for dealing with your pet and expending your funds to make sure that the pet is provided with the desired level of care. However, durable powers of attorney should not be so generally worded such that the agent’s authority is too broad or too narrow. In this regard, the laws of the various states that govern durable powers of attorney can vary significantly, with many statutes providing hefty criminal and civil liability for any agent who acts outside the scope of the power’s specific provisions or in any manner that does not strictly further the best interests of the principal. Suffice to say, you should consult the applicable state laws or an attorney licensed in your jurisdiction before executing a durable power of attorney.

Revocable living trust

As discussed in the context of planning an estate (see Documents Addressing Pet Care Upon Death), a revocable living trust can also provide for incapacity. That is, the settlor may execute a revocable trust agreement naming him or herself as “trustee”, but also providing that if the settlor becomes incapacitated, the designated successor trustee is directed to take over the trust property and make distributions for the benefit of the settlor. With regard to planning for pet care, the well-drafted revocable trust agreement should also direct the trustee to expend funds for the care of the settlor’s pet under a standard similar to provisions that would apply after the settlor’s death. (For more information about revocable living trusts, you may also consult www.livingtrustnetwork.com, a web site which is wholly unrelated to this one.)