Pets in limbo

Mass. has no legal provisions for care once owner dies

By  Pamela H. Sacks

TELEGRAM & GAZETTE

2008

Diane Sullivan is devoted to her dogs, Winnie and Whitey, and she’s counting on her brother to give them a home if anything should happen to her and her boyfriend.

Ms. Sullivan’s brother, Michael Leamy, a professor at Fitchburg State College, has told her that she need not worry. But Ms. Sullivan, 53, knows that her brother and his wife have a new baby and their circumstances could change.

“I talk about it constantly to him because I need reassurance,” Ms. Sullivan said. “He knows that’s the thing I really care about.”

Ms. Sullivan is a professor of animal law at the Massachusetts School of Law. She knows that, as a Massachusetts resident, she is limited in what she can do to protect Winnie and Whitey if she should become incapacitated or die.

Ms. Sullivan would prefer to go the legal route and set up a trust with her pets as beneficiaries. But Massachusetts has no statute allowing a pet to benefit directly from a will or a trust. In contrast, 36 states and the District of Columbia have provisions validating pet trusts that make such bequests enforceable in court. Otherwise, such trusts are merely “honorary.”

Many people who seek to ensure that their pets will be taken care of are unaware of the situation. Ms. Sullivan often gets calls asking her to draw up wills or trusts that guarantee the future of companion animals.

“I have to explain the status of Massachusetts law – that there is nothing legally enforceable,” Ms. Sullivan said.

Some states have passed their own laws, but many have adopted a pet trust provision that is part of the Uniform Trust Code. When a national commission was revising the code nine years ago, the Animal Legal Defense Fund, a California-based group, introduced the pet trust provision. Lawyers with the group had seen honorary trusts ignored time and again, said Joyce Tischler, the founder and general counsel of the ALDF.

Ms. Tischler recalled a woman who set up a trust for her dog and left her lawyer responsible for carrying out her wishes.

“He bought himself a new car with the money, and he let the dog ride in the car from time to time,” she said. “His license to practice law was lifted for that.”

Adoption of the Uniform Trust Code, a massive document with a wide range of trust provisions, was introduced in the Massachusetts Legislature in early 2007. The bill was held for further study by the Joint Judiciary Committee, effectively killing it. Donna Turley, a Boston lawyer who specializes in estate planning, has a theory as to why: The state has an aversion to adopting uniform codes.

“In Massachusetts, we tend to like to have our own laws,” Ms. Turley said, adding that pet trust validation is more likely to pass as a distinct Massachusetts law, as long as animal-protection lobbyists and the Massachusetts Bar Association get behind it.

Ms. Turley said she always inquires about pets when she is working with a new client. She recommends setting up a trust for the benefit of a person who will take responsibility for the pet and then naming another individual as the trustee, who can check to be sure the animal is being cared for.

“It’s more cumbersome,” Ms. Turley acknowledged. “You have to find the right person.”

Ms. Tischler noted that pet owners have for decades taken steps to protect their animals from potential cruelty or abandonment.

In the mid-20th century, it was fairly common for an owner to stipulate in a will that a pet be euthanized, often in an effort to save the animal from “pound seizure,” which meant it could be taken for medical experimentation. Eventually, pound seizure ended, and, in cases across the country when the stipulation was challenged, courts ruled that it was against public policy to put down a healthy, well-adjusted animal.

While the provisions people make for their pets often are, happily, carried out, Ms. Tischler said that certain steps can be taken to avoid unnecessary problems. For instance, she highly recommends not leaving more money than is necessary for food, grooming and veterinary care. Otherwise, the owner invites a challenge to the will, which is what occurred when Leona Helmsley named her dog, Trouble, the beneficiary of a $12 million legacy. Her grandchildren mounted a challenge, and the judge reduced Trouble’s share to $2 million; the grandchildren got the balance.

“How much money does a dog need for a lifetime?” Ms. Tischler said. “Mostly, you want someone you trust who will care for your animal.”

Ultimately, Ms. Tischler is in agreement with Ms. Sullivan: The best solution in Massachusetts is to give money outright to a designated caretaker, and, she said, “hope they do the right thing.” She urges checking back once a year to see if the caretaker is still willing to follow through.

If a rescue group is chosen for the animal, Ms. Tischler suggests speaking with a representative about the organization’s procedures and track record. It is important to inquire where the pet would stay until a permanent placement could be arranged, she said.

The Hudson-based Yankee Golden Retriever Rescue takes in many dogs left homeless because of illness or death. The organization makes certain the person who signs the dog over has legal ownership through a power of attorney. The group also takes golden retrievers that have ended up in shelters.

Allyson MacKenna, an adoption coordinator at Yankee Golden Retriever Rescue, said it is not unusual for pets to be left alone in a house when an owner falls ill or dies. The rescue group recently took in a pair of dogs, one of which had an incurable heart condition. The owner was 49 when she fell ill and died.

“The dogs were living all winter in the house by themselves,” Ms. MacKenna said. “Someone would take them out, feed them and take them for a walk. That person called us about the dogs.”

Not long ago, the group took possession of a 12-year-old male named Jake. He had belonged to a woman in her 50s who had early Alzheimer’s disease and had been in a bad car accident. Ms. MacKenna is confident that Jake will soon have a new home. Yankee Golden Retriever Rescue has a program that provides financial assistance to people who adopt senior dogs.

Meanwhile, Ms. Sullivan continues to field inquiries about pet trusts, and she must deliver disappointing news.

“Everyone should be concerned,” she said.

Pet Care

Precautions you should take to protect your pet in the event you are unable to provide care yourself

- Write down detailed information about the pets, noting health history and habits. Include the name and phone number of someone who can take immediate responsibility in the event of an accident or emergency. Copies should be left with your important papers and with a designated custodian.

- Give a friend or neighbor a key to your house so that access can be gained quickly.

- Carry in your wallet an “alert card” stating that you have pets at home.

- On your door or window, place an “in case of emergency” sticker specifying the number and types of animals in the home. Be sure to keep the information current so that rescue personnel don’t waste time in a dangerous situation looking for an animal that no longer lives on the premises.

- Consider setting up a trust for the benefit of a person who will take responsibility for the pet and then naming another individual as the trustee; trusts benefiting pets alone are not legally enforceable in Massachusetts. Another approach is to choose a family member or freind who will take care of your pet and give that person money outright or leave that person money in your will.

Source: Massachusetts Society for the Prevention of Cruelty to Animals