Tomorrow is not promised to you. No one knows what the future may bring. Despite this truism, many elders fail to make legal preparations for illness, disability, long term care, asset protection, probate avoidance and death. Ready or not the day will likely come when someone will need to consider downsizing their living quarters, transferring assets to protect them from the claims of creditors or reduce the size of a taxable estate, prepare a Will, Trust, Durable Power of Attorney and Living Will, arrange for a caregiver, coordinate long term care and insurance coverage, and make funeral arrangements. In addition elders and their families often disregard the affect of increasing health care costs which may result in filing for bankruptcy. Yet rather than plan for crisis, many people plan only when in crisis. This failure clearly complicates critical financial, legal, residential and health care decisions and ultimately renders planning more difficult and expensive.
Although, it is crucial to plan for one’s illness, disability, potential long term care, protection and ultimate distribution of assets, the most ignored issue is providing for the care of the family pet.
As we age pets play an increasingly important role in our lives. Pets enrich older adults’ lives by helping them live longer, healthier and more enjoyable lives. Moreover, by amusing older adults pets avert feelings of loneliness and isolation. As such, elders often view and treat pets as members of the family.
First, let us understand that a pet is considered the property of an owner. Like any other property, provision must be made for the transfer of the pet after the death of the owner. If the owner fails to make his/her wishes known a dispute may arise. A probate process will ensue where State law will be imposed. Accordingly, trusts are an effective way to prevent conflicts, avoid the intervention of a probate court and carry out your specific wishes.
An estate plan for the pet avoids broken promises, misuse or misappropriation of funds intended for the care of a pet and/or mistreatment of the pet. A formal arrangement via power of attorney avoids questions in the event of illness, accident and family emergencies. The durable power of attorney designates an individual to intervene when the owner is incapacitated and unable to care for the pet. Durable powers of attorney can be general or limited. It is advisable that the durable power of attorney be specific about what powers are being transferred to the Attorney in Fact. Otherwise this person has unlimited powers to sell the pet, place the pet in a shelter, have the pet “put down,” seek veterinary care, spay or neuter, etc. Please note that powers of attorney are not effective in the event of death.
A Trust assures suitable care of a pet. At the same time it provides a method for monitoring that care. This trust is usually established by will, called a Testamentary Trust. It becomes effective on the death of the owner. Such a trust is usually funded with money at the testator’s death. The trust appoints a trustee to manage the funds and oversee the care of the pet(s) and provides guidelines for its care. As a fiduciary, the trustee has a legal obligation not misuse or abuse trust assets. This obligation extends to all beneficiaries (pets and ultimate beneficiaries).
The trust is limited to pets that were living during the testator’s lifetime. When the last of these animals dies, the trust terminates and any remaining funds will be distributed according to the terms of the will. Finally, if the pet pre-deceases the owner, the language creating the trust will be ignored.
Elder Law is a specialized field of law which addresses the issues faced by the elderly. It combines elements of Estate Planning, Wills and Trusts, Conservatorship, Guardianship, Health Care Planning, Medicare/Medicaid Planning, and Elder Rights. The basic purpose of elder law is to properly plan for your life in retirement (illness, disability, health care, residence, etc.) and your death. In so doing the benefits achieved are peace of mind, certainty in an uncertain world, maximizing asset protection and assuring distribution of assets in a pre-determined and a cost effective manner.
At Bahrawy Law Office, we provide you with the information and guidance you need to make effective decisions regarding the protection and distribution of your estate as well as probate avoidance. We explain your options and advise you on the estate planning tools that will best accomplish your goals.
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