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Texas Tech Univ. School of Law

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Friday, March 29, 2013

Article on Companion Animal Trusts and Custody Laws

Paige-dowdakinPaige Dowdakin (Associate Editor 2012-2013, Member 2011-2012, The Elder Law Journal, J.D. 2013, University of Illinois, Urbana-Champaign) recently published her article entitled Revisiting Roxy Russell: How Current Companion Animal Trust and Custody Laws Affect Elderly Pet "Guardians" in the Event of Death or Incapacity
20 Elder L.J. 411 (2013).  The introduction to the article is below: 

Animals have these advantages over man: they have no theologians to instruct them, their funerals cost them nothing, and no one starts lawsuits over their wills. - Voltaire. Although probably true in Voltaire's time, this quote does not hold today, especially in the United States, where pet guardians are spending large fortunes on their furry companions. In fact, a recent study by the American Pet Products Manufacturers Association estimates that there are over 150 million pet dogs and cats in U.S. households, and the annual veterinary expense per pet is $ 366. For many, the expenses do not stop with veterinary care. Pet guardians often indulge their animals with expensive toys, treats, and even birthday parties. Moreover, an American Animal Hospital Association survey found that seventy-four percent of pet guardians would go into debt to provide care for their pet.  Why? An increasing number of Americans view their pet as a child or family member. 

It is no wonder, then, that a number of elder pet guardians are going the extra mile to ensure that their animal companions will be taken care of in the event of the guardian's death, emergency, or a change in living situation. The media has picked up some extreme examples of this trend. In 2010, Miami heiress Gail Posner passed away at sixty-seven, leaving a $ 3 million trust fund and an $ 8.3 million estate to her Chihuahua, Conchita, and her two other dogs. Ms. Posner also left her personal assistant $ 5 million and free rent at Ms. Posner's Miami Beach mansion if she agreed to care for the dogs "with the same degree of care" they received while Ms. Posner was alive.  Ms. Posner's son, who was left a lesser sum than the dogs, filed a claim against several of his mother's staff members whom he argues exerted undue influence on Ms. Posner during her last years.

Not all cases are as controversial as Ms. Posner's. Another famous case involving a non-notorious guardian is that of In Re Estate of Russell. In the case, the late Thelma Russell, through a validly drafted holographic will, attempted to leave the entirety of her real and personal property to both her close friend of twenty-five years, Chester H. Quinn, and her dog, Roxy Russell.  The court held that the gift to the dog was invalid because a dog cannot be a beneficiary in a will. When trying to interpret the executrix's intent, the court considered that perhaps Russell intended to create a pet trust for the care of Roxy; however, the court eventually rejected this argument because the language of the will did not express any manifestation of intent to impose such a duty on Mr. Quinn. 

As shown in the above examples, there are several scenarios in which pet trust issues and pet custody disputes may arise. One of the most common scenarios is death. In situations where a pet is left behind after a guardian passes away, two major concerns arise: who will take care of the pet and what funds will be used to care for the pet. Another scenario occurs when a guardian becomes physically or mentally incapacitated.  Pets are often displaced due to an incapacitated guardian; this can be due to age, an unexpected accident, or illness.  For guardian incapacity, the same question arises as to who will take care of the pet and with what funds. Both of these scenarios occur most frequently within the elder community, as the prevalence of displaced pets is greatest when the original guardian has passed away or cannot continue to care for the pet. 

To further complicate the matter, each state's particular view on the allowance of enforceable pet trusts determines how custody issues are resolved and whether or not a pet guardian may create a trust for the animal or arrange certain types of custody agreements. Currently, laws in most jurisdictions treat companion animals "just like other kinds of property [having] no legal rights of [their] own. So a dog can't inherit property or sue in its own name." Therefore, each companion animal's well-being - along with the true intent of the elder guardian who seeks protection for his or her animal - depends on the enforceability of the guardian's will or trust.

This Note seeks to analyze the existing legal protections for displaced companion animals and the safeguards' effect on elderly pet guardians. Part II reviews current societal views of companion animals, the legal status of companion animals today, and the importance of pets in American society - particularly for the elder population. It also introduces the concept of a pet trust and section 408 of the Uniform Trust Code. Part III analyzes the legal issues surrounding pet guardianship, current safeguards available for elder pet guardians to protect their companion animals in the event of death or incapacity, and the strengths and weaknesses of each individual scheme used to plan for the care of companion animals. Finally, Part IV recommends all states adopt a modified version of section 408 of Uniform Trust Code, which is an enforceable statute allowing for the creation of pet trusts.

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