Sixty-two percent (62%) of American households include at least one pet. Many owners view them as “family.” Lawyers and pet owners need to be aware that the pet can be legally protected during the owner’s lifetime by a Durable Power of Attorney, and after the owner’s death either by provisions in a Will or by a Trust. If the owner is incapacitated or disabled and can’t care for the pet, a Durable Power of Attorney or Limited Power of Attorney may be the solution. The Pennsylvania Superior Court, De Sanctis v. Pritchard, 802 A.2d 230 (PA Super. 2002) confirmed that pets are considered personal property, even though the owner may have considered the pet a member of the family. An Agent is defined as the person authorized to manage the personal assets of the Principal and the assets can include tangible personal assets, i.e., the Principal’s pets. The Pennsylvania Probate Estates and Fiduciaries Code at §5603(j) provides that the Agent has the authority to engage in tangible personal property transactions and means that the Agent can, inter alia, “move, store, preserve, and insure tangible personal property” and “in general, exercise all power with respect to tangible personal property that the Principal could…” A Principal can use a Durable Power of Attorney to expand the provisions authorizing an Agent’s care of a pet and provide for such issues as reimbursement for costs incurred by the Agent, such as veterinarian costs.
Pennsylvania has adopted a Pet Trust law. The Pennsylvania Probate Estates and Fiduciaries Code at §7738 provides that a trust may be created for the care of an animal alive during the Settlor’s lifetime. The Trust terminates upon the animal’s death. The Trust is enforced by the person named in the instrument, or if no person is named, by a person named by the Court. The property authorized may be applied only for its intended use. Property not required for the intended use must be distributed to the Settlor, if living, or if not living, then to the Settlor’s successor in interest. The usual reason to create a Trust for pets is to avoid publicity of any probate or cost. Any Trust should specify who is to provide care for the pet and what standard of care the Settlor wants the pet to have.
Pet owners can also make provisions for a pet in a Will. Since a pet is property, it cannot inherit. But the person making the Will can provide for a gift of the pet to an individual and provide in their Will for funds to defray the cost of the care of the pet.
Therefore, in discussions relating to Estate Planning, it would be prudent for counsel and any pet-owning client to discuss intentions concerning the care of the pet, whether during the owner’s lifetime or after death.
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