Friday, 8 February 2013

When will Canada implement pet trust legislation?

On November 22, 2012, my beloved Rottweiler Paco passed.  He was diagnosed with osteo sarcoma (bone cancer) in October.  The cancer had spread into his lungs.  He would have been 7 on January 19, 2013.  His diagnosis and then death hit me hard.  We had never been informed of this type of cancer by the breeder or by his vets despite the fact that research has deemed this form of cancer as fairly prevalent in large breeds such as the German Shepherd and the Rottweiler.  Not sure what we could have done to prevent him passing from osteo sarcoma but maybe knowledge of this cancer would have enabled us to have caught the cancer at an earlier stage thereby prolonging his life.

He was smart – would open the refrigerator whenever there was filet mignon and help himself and there would be none left for us.  After his diagnosis I ensured that he had filet mignon every night.  Although I had hoped for a miracle we had no choice but to say goodbye once the fentanyl (a drug stronger than morphine) could not mask his pain.  His death emphasized the fragility of life and the intense grief we all felt at the diagnosis and passing and continue to feel illustrate the love we had for him and the love one typically has for a pet.  Although I outlived Paco, I always worried what would happen to him if we were all to pass and leave him behind.  Canada unlike the United States does not have legislation allowing us to create a statutory pet trust which would allow us to settle a trust with our pets as beneficiaries.    

Canada lags behind the United States where to use the language from the Animal Legal Defense Fund valid trusts can be created for “non-human animals”.    The District of Columbia including 41 States ( Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington and Wyoming) recognize these trusts as valid.  This recognition of the validity of a trust created for the welfare of non-human animals allowed Leona Helmsley to establish an inter vivos trust under New York State law for the care of her dog of Trouble which was later funded with $12 million as directed by her will.    This amount was reduced to $2 million by the Court when her will was challenged.    

When funding a pet trust in one of the States or in the District of Columbia several considerations need to be made.  The cost of the care giver, will a residence need to be purchased to enable all pets plus the caregiver to reside in the same location.  A valuable overview of issues to be considered by practitioners drafting a trust fund and the settlor of a pet trust are found in HelmsleyPet Trust raises Issues for Owners of all Income Levels  by Frances Carlisle. This article also points out that an inter vivos trust is preferred over a testamentary trust.  An inter vivos trust is created during the life time of the settlor and allows for the care of the animal during the life time of the settlor where the settlor is incapacitated and is thereby unable to look after the animal.
The aforementioned however does not work in Canada.  In Canada a non-human animal cannot be a beneficiary of a trust as an animal cannot enforce the terms of the trust.  I currently don’t have a solution on how to ensure the welfare of one’s pets here in Canada after passing.  I would encourage that we lean on our policy makers to enable a statutory pet trust in Canada similar to the United States.

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