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Upon Illness of an Owner
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by Neil Hendershot Esq 7 years, 8 months ago
 Upon Illness of an Owner:
Pet Care for a Disabled Owner
Disability of a pet owner naturally affects the care of the companion animal. A durable power of attorney is the most effective solution in this situation. The Pennsylvania Probate, Estates & Fiduciaries Code (PEF Code), Title 20 of Pennsylvania statutes, in Chapter 56, authorizes durable powers of attorney (POA), whereby an "agent" (formerly known as an "attorney-in-fact") is authorized to manage personal assets of the "principal".[1] The managed assets can include tangible personal property, which would include the principal's pets.
The nomination by the pet owner, as principal, of an institutional or individual agent will be honored by the courts.[2] The question then becomes, is the agent granted adequate powers to care for the principal's pet? Under the PEF Code, an agent, if authorized, can "engage in tangible personal property transactions",[3] which would include the ability to "manage, preserve and insure tangible personal property".[4] This statutory authorization may be adequate where the agent's maintenance of a pet would be uncontested by persons having an interest in the principal's property.
Provisions in a Power of Attorney
A general POA could contain expanded provisions authorizing an agent's care of a principle's pet. A principal could address retention of pets as special property, coverage for liability, expenditures for pet maintenance, standards of pet care, access to the pet, and ultimate disposition of the pet. A principal's more specific provisions reflecting intentions for pet care would provide the agent with needed guidance. Professor Gerry W. Beyer[5] suggests that language in a POA can include pets when referencing other tangible personal property.[6]
An alternative authorization could be contained in a separate limited POA document. A different agent, usually an individual, would be authorized to maintain a pet. Billings for pet care costs would be presented to the principal's agent under a different general POA or to a trust fund of which the pet owner is a beneficiary. In this way, a more specialized and dedicated person could assume care of a pet. This separation of duties would be effective even if the general agent would decide to create and fund an inter vivos trust for the principal and end the general agency. Limited POAs are regularly utilized in real estate transactions, whereby the limited agency, the specified property, and the parameters of authority, are specified; and such forms could be altered for use with pet care.
I prepared a clause with broad authorizations to provide guidance for an agent acting under a general POA or a limited POA.[7] If a general POA was executed previously, then this provision could be included in signed precatory directions to the agent as further clarifications under the general power to administer tangible personal property.
In re Sylvester, 409 Pa. Super. 439, 454, 598 A.2d 76, 83 (Pa. Super., 1991).
20 Pa. Cons. Stat. Ann. Section 5603(j).
20 Pa. Cons. Stat. Ann. Section 5603(j)(2).
For the most useful online resource, see Estate Planning for Non-Human Family Members, maintained by Professor Gerry W. Beyer, of Texas Tech University School of Law. His site includes web links to organizations, references to books and articles, summaries of states= legislation, and practice forms. Professor Beyer is well-qualified to address pet care issues in estate planning and elder law. He authored a current textbook on estate planning, and moderates the Wills, Trusts & Estates Prof Blog (a member of the Law Professor Blogs Network)".
Professor Beyer suggests this language: "Managing and Collecting Property. My agent shall be responsible for collecting and managing all property known to be mine. My agent does not have to collect my automobile or any household belongings, but should take reasonable steps to protect such property. However, my agent shall take affirmative, reasonable care of my pets."
My suggested language for a general POA is as follows:
I authorize and direct my agent to arrange and pay for adequate maintenance of my companion animals or pets, including provisions for food, hygiene, and shelter, and, if deemed appropriate, also including custodial care under contract. I also authorize my agent to expend funds for insurance premiums and veterinary procedures, both preventative and remedial, regarding my pets, thereby preserving my pets and protecting my agent from liability arising from loss or damage. I direct my agent to make my pet(s) available to me for companionship and therapeutic purposes, as long as possible, limited by the advice of my attending physician.
In the event that it is impossible or impracticable for continued contact between me and my pet(s) and the unlikelihood that such contact may be resumed, or in the event that my own financial needs outweigh the ability of my agent, on my behalf, to maintain my pet as property, then my agent shall have the authority to donate my pet(s) upon such terms as my agent shall determine reasonable or necessary, to a qualified, caring individual, with preference given first to family members, and then friends or to a "no-kill" animal care shelter, so that the life of my pet(s) shall be preserved. My agent is authorized to expend, as a reasonable prepaid administrative expense and not as a gift, a sum not in excess of [$xx] in conjunction with such arrangements. In making such a disposition, my agent must consult with my family members or heirs, and also may consult with my pet's veterinarian or other local animal protective organizations as deemed appropriate; but the disposition decision of my agent shall be final.
After such arrangements are consummated, my agent shall not have any further duty as to my pet or the enforcement of any such arrangement. It is my intention that the life of my beloved pet(s) shall be preserved despite my disability; and only as a last resort after exhaustion of all other alternatives, may the life of my pet(s) be terminated prematurely.
Upon Illness of an Owner
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