PROVIDING FOR YOUR PARROT IN THE EVENT OF DEATH OR ILLNESS

ALAN S. KOPIT

3300 BP TOWER, 200 PUBLIC SQUARECLEVELAND, OHIO 44114

Voice: 216-274-2278 Fax: 216-274-2478 Email: askopit@hahnlaw.com

© 2006 – Hahn Loeser & Parks LLPAll Rights Reserved

BACKGROUND

• Pets play a significant role in our livesPeople love animalsEnjoy physical activity with petsCompanionshipGiving/receiving attentionUnconditional love

Two-thirds of pet owners treat their animals as members of the family

• Pet ownership43.5 million own dogs37.7 million own cats6.4 million own birds (3rd largest)

Biblical Roots

• Under Jewish Law you must care for an animal dependent on you before caring for yourself

The PROBLEM

• Pets often outlive us

• Parrots can often live to be 60, 70 or 80 years old

• Parrots often outlive one or more caregivers

Pet Owners: Do you need to prepare for death or disability? YES if:• Your current heirs are NOT the best people to

care for your parrot• You live alone• You are advanced in age and/or suffer from a

chronic illness• You have multiple parrots• Your parrot has a relatively long life expectancy

OUTLINE OF PRESENTATION

• History• Verbal agreements• Wills• Pet Trusts• Powers of attorney• Other important steps• Getting help

HISTORY

• Years ago a bequest in Will or Trust for the care of pets was unenforceableFailed under arcane estate lawsUnenforceable “honorary trusts”

• Changing rapidly under modern law

TODAY

• Pet is tangible personal property

• If you fail to mention parrot in Will or Trust: passes to recipient of tangible personal property

• If no Will or Trust: passes to “heirs”

• No provision for short-term issues if disabled

VERBAL AGREEMENTS

• No writing

• Person changes mind

• AVOID VERBAL AGREEMENTS

WILLS

• Simplest way to leave parrot to caregiver

• Provision in will is easy:“As we agreed prior to my death, I leave my parrot to my friend, Leah Matejka, together with the sum of $10,000 to be used to defray the cost of care of my parrot.”

WILLS

• Note: NOT leaving money to the parrot

• Giving parrot to CAREGIVER

Considerations for caregivers

• Find a good caregiver• Find contingent caregivers• Introduce parrot to caregiver• Prepare your caregiver• Mention caregiver in Will• Provide enough money• Communicate what happens when parrot

dies• Arrange for short-term care

PET TRUSTS

• Pet Trusts emerging in last 15 years

• Created for continuous care of parrot

• Trustee appointed to administer the trust

• Money bequeathed to fund the trust

Uniform Probate Code (1990)

• Recognized the concern people have for their pets.• Recognized that assets transferred in trust for the

benefit of a pet as valid and enforceable• Took away the Trustee’s discretion whether to

provide for the pet• Applied only in states passing the UPC

• Ohio did NOT pass the UPC

UNIFORM TRUST CODE (2000)

• “Trusts for the Care of Animals” recognized

• Effective in Ohio on January 1, 2007

BENEFITS OF TRUST OVER WILL

• Unlike Will, Trust can provide for parrots care immediately – not only at death – can accommodate lengthy disability

• Funds readily available – not part of probate process

• Trustee controls and disburses funds to caregivers

Ohio Revised Code Section 5804.08(A) A trust may be created to provide for the care of an animal alive during

the settlor’s lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal.

(B) A person appointed in the terms of a trust or, if no person is so appointed, a person appointed by the court may enforce a trust authorized by this section. A person having an interest in the welfare of an animal that is provided care by a trust authorized by this section may request the court to appoint a person to enforce the trust or to remove a person appointed.

(C) The property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor if then living or to the settlor’s successors in interest.

Considerations when drafting a Pet Trust

• Specifically identify the parrot

• Identify subsequent parrots

• Set aside sufficient assets for care

• Identify other assets used in care

• Designate the caregiver-beneficiary

• Designate the trustee

Considerations when drafting a Pet Trust

• Define trustee’s duties• Provide for distributions to caregiver• Define standard of care• Provide guidance for euthanizing the parrot• Provide directions after parrot’s death• Designate remainder beneficiary and

terminate

POWERS OF ATTORNEY

• Short-term incapacity• Allows agent (attorney-in-fact) to attend to financial

affairs of principal• Can be of short or long duration• Directs agent to care for principal’s parrot• Expressly states that agent has power to preserve

the welfare of principal’s personal property (the parrot)

SAMPLE LANGUAGEIn the event that the Principal is unable to provide for the care of the Principal’s parrot named Matejka, the Agent is authorized to: (1) take possession and custody of the parrot [OPTION: or provide possession and custody of the pet to the Trustee of the [NAME OR REVOCABLE LIVING TRUST]]; and (2) expend or otherwise utilize such amounts of the Principal’s funds or other property as may be necessary or advisable to provide for the health, care, and welfare of the parrot, including (but not limited to) food, veterinary care and/or insurance, toys and other recreational activities, and temporary boarding and/or pet-sitting fees. In exercising such authority, it is intended that the Agent will maintain the parrot in the same standard of health, care, and welfare as the Principal provided. Unless medically or physically impracticable, the Agent shall permit the Principal to have as much contact with the parrot as the Principal did before becoming incapacitated. For the purposes of this instrument, any such actions by the Agent taken for the benefit of the Principal’s parrot shall be considered taken for the benefit of the Principal.

OTHER IMPORTANT STEPS

• Animal Card – keep in wallet or purse• Information about parrot

NameType of animalLocation where housedSpecial care instructionsContact information of person with

access to parrot

OTHER IMPORTANT STEPS

• Animal Document – keep with estate planning documents

• Same information as animal card plus additional details such as special needs and likes and dislikes

• Increases likelihood that owner’s desires carried out

OTHER IMPORTANT STEPS

• Signage

• Place at entrances to dwelling

• Alert people (especially emergency personnel) that a parrot is inside

ADDITIONAL HELP• Wonderful websites – http://estateplanningforpets.org

• Donald Congalton & Charlotte Alexander, When Your Pet Outlives You: Protecting Animal Companions After You Die (New Sage Press 2002)

• Peggy R. Hoyt, All My Children Wear Fur Coats: How to Leave a Legacy for Your Pet (Legacy Planning Partners, LLC 2002), see http://www.legacyforyourpet.com

• Lisa Rogak, PerPETual Care: Who Will Look After Your Pets If You’re Not Around? (Literature 2003)