eschlachter

Had a great comment on Sunday- Wow! That's a great Zimbabwean Zipperback!! (I have Ridgebacks). It was a new one on me, but very funny :D (and yes, a joke from the bloke who commented)

No a friend is knitting them, I struggle to sew a button on She was going to try and make ears for them but she's now thinking of buying old soft toys from the op-shop and cutting the ears off and sewing them on the hats :laugh: That actually sounds so awesome- You know, Stan's mum, they'll be a DOL-style riot if we don't see pictures of the above (started by me) :D

Hmmm... Well, this was my puppy buying experience: 1. Spend a year agonising over whether or not we could or should have two dogs (an increase on our beloved one). Decide yes, we can. 2. Spend the next year convincing the o/h that having two dogs is a great idea! Finally obtain agreement. 3. Another six months deciding on breed, and doing research applicable to that breed. 4. Finally, find a great breeder with a great litter. 5. Call breeder. Have lovely, long conversation about dogs/me/my other dog/ ect. 6. Plan 20 hr (round trip) drive to collect puppy. 7. Call and email breeder repeatedly; send breeder pictures of my mum knitting a coat for new puppy (poor lady has no grandchildren). 8. Ask breeder politely before I leave for puppy collection, how much money I need to bring with me? I am a bit hopeless with money/bargaining though. But just wanted to emphasise, from the puppy-buyer perspective, that price/cost is really the last thing on the list I thought about- and most breeders feel the same way. The worry is, that if the second vaccine is a concern cost-wise- what happens if the puppy becomes ill? Would you be reluctant to spend the money needed to take it to the vet? I'm sure you wouldn't, but that is the impression your email may have given to the breeder. IMvho.

Not a worry. I'll answer them in order- Should I not only have a will but also have appointed an attorney? Yes. A will only takes effect after you die; powers of attorney and enduring guardianship documents have effect whilst you're alive, and shouldn't be used after death. Not everyone is going to use a power of attorney document, some of us will be lucky enough to be out and about and capable until the day we drop dead; but others won't be so lucky, and will need someone to take care of their affairs for them while they are still alive. Can this attorney be a relative? Should it be my next of kin? If I ended up in hospital how would the hospital know I had an attorney? Yes, a relative is the best person usually. You should think about appointing someone who has an interest in you- so that if you were in Hospital they'd visit and let the staff know they were your guardian/attorney. Next of kin is usually best, provided you are happy to trust them with your finances! If you're going to hospital for a pre-arranged surgery or something like that, you could take a copy of the document with you and let the staff know who to contact in an emergency. Also would I need to name the relevant pet in the legal document? I'd avoid 'naming names' where possible, so that if you do have a different pet at the time the document's needed, you won't have any trouble. So perhaps a word/s like 'my pet dog/s are to go to X and my pet cat to y'. To be honest I haven't ever actually named pets or animals in a power of attorney document, but that doesn't mean its not possible! Most people are pretty trusting of their relatives really and rely on them to carry out their wishes, without having it formally recorded in a POA. However, everyone is different and faces different family and personal circumstances, so we need to be flexible and cover all scenarios. :) Are there any questions I haven't answered yet guys? please remind me if I have missed yours...

Not a bad idea- but PLEASE don't change your will without personally consulting your own solicitor. You sound extremely responsible Danny and I'm sure you won't but I should post the warning anyway :) I'm being a slacker this evening and will have a chat to everyone tomorrow about independent agreements/contracts and living wills... currently having a good giggle at the o/h giving our dog goodnight snuggles, and having little conversations with them :D very sweet. Lol at goodnight snuggles and chats to your dog...what breed? No, I wouldn't change anything without going through the solicitor, except I don't have much confidence in him as he kes making mistakes. Last time I updated, he left out the crucial bit about the Trust For looking after my animals The people who have entrusted their dogs to you are very fortunate OSS I wouldn't be concerned about whether money had been allocated or not, but a sudden trip to emergency can be VERY expensive - ask me LOL. @Danny- Rhodesian Ridgeback (Leia, as in Princess, because she is a princess!) and Kelpie x Staffie (Rex). Leia is my showie, but we haven't been to a show for about a year- she's only 20 months old now and went through a very funny gangly stage for a bit. Getting back to it though! Will be at the ANZAC Day hound show in Canberra :) A quick question, I know the above is 'off topic'- are there strict rules about that on this forum? I have chooks too, and there's a popular chookie forum that will just delete anything that doesn't stay within the thread topic. Just wondered. And sorry if that is the case :D

Well, I think yes- it would, but a number of conditions would need to be met first. This is again a pretty grey area- I haven't heard of it being done before- but the important things are: for a contract to be binding, it should be (doesn't have to be here but should be) in writing; and it HAS to be for consideration. So, there needs to be money exchanged or mutual benefits on both sides. Something like, I'll pay you X amount of dollars if you care for my dog for X number of months or find it a home, for example. Otherwise it would not be enforceable. Your will would then to have a specific clause in it, allowing your executor to continue with that agreement on your behalf; and the agreement itself would need to specify that it bound your executor/s and beneficiaries after you died. In other words you'd have to deal with the issue that one of the contractors is dead, assuming that's when it would come into effect. It's a good idea on the face of it, but I think you'd struggle to find any welfare organisation that would agree to enter into a contract like that. No doubt they would prefer a donation that didn't bind them in any way! Caveat- I have only mulled over this for a short while- there could be a big problem with the arrangement that I haven't though of yet- if I do think of one I'll come back and update. I do think though that the real issue is going to be finding a welfare organisation that will agree to it.

Hi Nawnim, So, firstly, this (and all my info) is about NSW- the ACT has slightly different laws in relation to 'living wills' and other documents that look after your affairs whilst you're still alive. There is no such thing as a living will, that is (I think) a word we've borrowed from the Americans, but we do have a similar document system to help people with their health and property whilst still alive. There are four documents that we use on a regular basis, to assist with the management of a person's affairs: - General Power of Attorney document- this is one that gives control over your finances, property and real estate to some one else; - Enduring Power of Attorney- this does the same, but it continues to be operational even after you lose the capacity to tell your attorney what to do (and this is the most common one people use- the top one is really for someone going overseas ect and needing an attorney in Australia to assist them for a time.) -Enduring Guardianship- is a document which appoints someone to make health and lifestyle decisions for you, so where you live and what healthcare you receive; - Advanced care directives- this document sets our in detail what health care you would like to receive if you can't make those decisions for yourself. It isn't legally binding in NSW, only an enduring guardianship document gives someone actual power to decide what treatment you receive. ACD's are helpful though, especially for the person who has been appointed your guardian. There shouldn't be any confusion over what your wishes are. All of these need to be completed and executed BEFORE you lose the mental capacity to do so. So, thinking about them now is good! If an owner of a dog has a stroke and goes to hospital- and they have appointed a person or persons to be their Attorney, that person does have the power to make decisions about the dog, including PTS; unless the document says otherwise- it is possible to put restrictions and limitations on what your attorney can and can't do. It sounds harsh, but our law in some respects equates a dog or cat to a possession like a car or a chair, in situations like that. However, an attorney must act in the best interests of the principal; so, you could argue, PTS may not be in their best interests at all- or it may be the opposite. If there is no POA document in place, it would be difficult (in my view) to legitimately (and legally) have the dog PTS. As I understand it most organisations and/or the vet would need to know who owned the dog and whether or not they had authorised its destruction? Anyway as with executors, you should appoint as your attorney someone who knows what your wishes are in relation to your pets (should you go into Hospital or care) and who will carry them out for you. If you suspect that an attorney is abusing their privileges, or not acting in the best interests of the principal, you can make an application to the Guardianship Tribunal in NSW (or the Supreme Court) to have them removed as attorney/s and replaced by someone else. Nawnim does that cover it? I think I've set out already in some detail, what you can do to ensure in your will that pets are cared for. Good work on making a will- best thing you can do.

Not a bad idea- but PLEASE don't change your will without personally consulting your own solicitor. You sound extremely responsible Danny and I'm sure you won't but I should post the warning anyway :) I'm being a slacker this evening and will have a chat to everyone tomorrow about independent agreements/contracts and living wills... currently having a good giggle at the o/h giving our dog goodnight snuggles, and having little conversations with them :D very sweet.

So, to clarify, it would be more enforceable if the trust (or legal agreement) was between persons rather than a person and a charity? Or have I misunderstood? Thats exactly right Sheridan. I'm not ignoring your qu (or anyone else's) re agreement with the welfare charity but it is also s bit tricky to answer :) and strictly speaking I'm supposed to be working lol :D

Valid, but enforceable is debatable. Unfortunately it's an open question currently. I'll quote from a book called Huntley's Australian Wills Precedents, which is a great text and lots of lawyers (me included) use it religiously: 'A gift for the maintenance of a particular animal is not charitable, but is valid provided the rule against perpetuities is not infringed [that means it can't go on forever]...Generally speaking, 'there must be somebody, in whose favour the Court can decree performance' or the trust must be charitable, otherwise there is no valid trust. The 'beneficiary principle' [stated above in italics] has, however, not been consistently applied. In particular, Courts have not applied the principle in the following categories of cases: -trusts for the maintenance of a particular animal [among others]...These relaxations of the beneficiary principle are anomalous, for there is no person who can enforce the trust. Because these relaxations of the beneficiary principle are anomalous,they should not be relied upon in drafting, say, a gift for the maintenance of a particular animal. The trust should be drafted in favour of a particular person.' So you need to structure the will clause in a particular way, yes.

Hi Raz! This a complicated question (and answer)!- I'll sit down tonight and set out for you all how (I think, anyway) the RSPCA can do that... :) Thanks Esch. Maybe take the org out of it. lets say Bob died leaving his estate to Mary blah blah. Thanks alot for taking the time to do this. Obviously its a very emotional issue for pet owners so it is a very good thread. Hi Raz, This question goes back a little to my answer to the Rev. and the difference between a gift, and specific clauses in a will; and a 'direction' only. So firstly the important thing to understand is that you cannot leave money or any form of legacy directly to a pet in Australia. Secondly, you can't set up a legally enforceable (arguably- this question hasn't been finally determined at common law and there's no legislation about it) trust for the care of a particular animal or animals (so where the beneficiaries of the trust are not specific people) in NSW. Such a trust would be for a private purpose only, and although beneficial it could not considered a charitable trust. (NB- I can see from this thread that some of you have a trust of this nature in your wills already, and that's fine- I would expect that they confer a benefit on a particular beneficiary with the expectation that the beneficiary use the money to care for the dog- but they are not generally enforceable, they rely on the goodwill of your executor or beneficiary as the case may be, to maintain and administer). The USA has a different law, and you can set up 'pet trusts' there (so that's where the beneficiary of the trust is a privately owned animal, and not a person.) In NSW we can leave a gift to an incorporated charity-or unincorporated association- so that would be any animal welfare league or rescue group, or other like charity- on the basis that they will follow our direction in relation to the particular animal. The gift itself must be for charitable purposes only (so that's the money must be given to the charity for them to do good works with it all round) and the care of a specific animal, although charitable in nature, is not enough for the gift itself to meet the definition of 'general charitable purpose'. Therefore, the request is a direction only and they can freely ignore it. It's confusing- but really important to differentiate a gift to (or a trust set up to benefit) a beneficiary (so a natural person); and a gift to a charity. One can be conditional, the other can't, unless the conditional fits the purpose and definition of a charity. There are regular instances of people, for example, leaving money to the Salvation Army but only on the basis that they use it for a particular purpose; and the Army saying well no, we can't use the money for that purpose and you have to give it to us anyway. The law says that if the condition was 'to benefit all of the poor people in my area only' well, is that a gift given with 'general charitable purpose?' Maybe, maybe not. At the end of the day, the Supreme Court would need to answer that question. I think it probably would meet the 'general charitable purpose' test and so the condition would be applicable. However, a condition that my gift is to be used so that my particular dog is looked after until it can find a home- well, that probably wouldn't. It's therefore a direction, a request only, and not enforceable. So the RSPCA can keep the money. In relation to waiting till Probate was granted- the issue there is that the dog, strictly speaking, shouldn't have been given to the RSPCA until Probate was granted (unless the will allowed for that to happen, and it may have). At the end of the day- if everyone involved in that matter was confident the will wasn't going to be disputed (and particularly that that clause wasn't going to be disputed) there isn't an issue with dealing with the dog prior to Probate. We would never hand out any money before a grant was made, but some things can't wait. On a more complicated legal note- there's a doctrine in NSW called 'relation back'. So-an executor gets the power to administer an estate from the issue of a grant of probate of the will. However, sometimes a grant takes time to issue. The doctrine of relation back means that everything the executor did before a grant, is given the same legal authority as after- so his powers as executor 'kick in' from the death of the testator, but retrospectively, and therefore his actions are valid. Phew! I hope that makes sense. Let me know if it doesn't!

Hi guys, So- RSPCA legal stories- well, there's a rather persistent rumour that several trustees of the RSPCA decided, that when the RSPCA is gifted a house (in a will) that happens to be rather nice and in a very exclusive part of Sydney, instead of selling it they move in and of course pay no rent, and the upkeep of the property being paid for by the RSPCA. That's unconfirmed lol !! Really it's more about the costs they inflict on people- so (and this is a touchy subject) when the RSPCA prosecute someone in a Local Court, if that person says they're not guilty and the matter goes to a hearing- and they lose, unlike in ordinary Local Court criminal matters where no costs would be awarded against the guilty person, the RSPCA have been known to ask for, and be awarded, costs in excess of $80,000.00. So not only does the guilty person have to pay a fine or be (quite rightly) punished, they'll also likely lose their house/savings/be declared bankrupt if they can't come up with the legal costs demanded by the RSPCA. To put it into perspective a little-and in our Local Court anyway- no other organisation or statutory authority in NSW, be that Council, Fisheries, ect, would ever ordinarily prosecute someone in a Local Court; they leave that up to the Police. Not the RSPCA though. Why? Well, there have been, in the past, connections between the RSPCA and particular law firms. So what better way to make sure that firm makes a healthy profit? Many would argue that severely punishing (and the legal firm making a profit from) those who breach animal welfare laws is no bad thing- and sometimes they're right- but if you're genuinely not guilty, and want to prove it, can you afford to risk losing your house/money/everything to do that? To a large degree it reverses the dictum that everyone is innocent until proven guilty- except those who can't afford it, they have to be guilty! Anyway there's also the 'lovely' stories we hear on a regular basis about dogs being put down when the request is that they be re-homed, and vice versa. Which leads me to Raz's question. And a separate post.

Hi Raz! This a complicated question (and answer)!- I'll sit down tonight and set out for you all how (I think, anyway) the RSPCA can do that... :) You'll discover, eschlachter, that the RSPCA is a law unto itself and spends squillions on it own, in-house lawyers to discredit anyone who tries to say anything that might expose some of their more unsavoury actions. You're not a lawyer for long before work that one out!! :D The stories (legal ones, rather than anything else) about what they get up to are legendary among us. I had planned to answer Raz's question from an 'any organisation' point of view anyway- I haven't read a lot on this forum, and didn't want to upset anyone by...um... referring to the RSPCA in any kind of negative way :)

Hi Raz! This a complicated question (and answer)!- I'll sit down tonight and set out for you all how (I think, anyway) the RSPCA can do that... :)

Well, that's an excellent question, the million dollar one really- there's no point stipulating PTS in a will, if it is unenforceable. So is it? Yes and no. I'll try and start from the beginning. So, when a person dies, their will comes into effect (and not a moment before that either). Their executor/s have a duty (in fact it's a fiduciary duty too, which is quite significant) to uphold the terms of the will and ensure that an estate is distributed in accordance with those terms. Ordinarily an executor is happy to uphold the terms, and so are the beneficiaries. The will may or may not be admitted to Probate (that's the process where the Supreme Court looks at the will, and some other documents, and approves it and its terms). If a will directs the executor/s to sell a house, and the execs don't do it- the only real way to enforce compliance is for someone with an interest in the estate, to make an application to the Supreme Court for that Court to order the exec to comply with the will's terms; and/or be replaced by an executor who will do what the will requires of them. Failing to comply with a Supreme Court order may have a serious impact on your wallet (and ultimately your liberty). From a purely practical perspective, applications to the Supreme Court of that nature are expensive and time consuming. Legal costs are often paid from the estate, but many solicitors and barristers require their fees upfront. So who is going to bear the cost of the application- bearing in mind what the end purpose of the application is, being that we are talking about a dog or pet (valuable and treasured I know) but not for example a house or asset worth a significant amount of money. There may not even be enough money in the estate to cover the costs of such an application. There's some interesting legal questions around this too, and whether or not a will clause like PTS is enforceable regardless of the fact its in a will. If a court determines it is a 'direction' to an executor, the execs may be free to ignore it and do what they like with the dog. This is in line with the burial or cremation of the testator direction- it is not binding on an executor. Ultimately, it may come down to what words are used in the will, in my view. A dog or pet is a possession and can be given to a beneficiary; and any gift can be made conditional. Therefore, the beneficiary, now owner, can be compelled have the dog PTS, by a court- or they would have to return it to the estate (in practical terms, the executor). The rules with conditional gifts are that a condition can't be: impossible; in terrorem (ie merely intended as a threat without affecting the gift); repugnant (that is contrary to the principles of law affecting the gift); against public policy; or uncertain. So provided PTS doesn't fall foul of any of those rules, it could be enforceable as a part of a conditional gift clause. Please, don't change your will on the basis of the above information if your will, or solicitor has a different view- the above is really general only. What you should do, if you're worried your exec/s won't comply with your wishes, is find an executor who will; and appoint them. It's often just that simple.

Can I just stress again the importance and having these plans and hopes actually made legal in your wills. No amount of planning and talking holds water. You must make a will and in that will, as Cowanbree has done, have fends dedicated to the implementation of your wishes in regards to the pets .. Not only dogs. Yes, that's absolutely right- but telling everyone what you would like to happen is often just as important. What we sometimes see, is family sitting down to read a will weeks after the person has died and been cremated. Too bad if the will says that they do NOT want to be cremated under any circumstances, but only ever expressed that wish to their lawyer! (for example). The same with animals- they need to be moved and cared for straight away, so where they go and who should care for them needs to be both broadcast to your nearest and dearest, and recorded in your will. It's particularly important to let the executor you've nominated in your will, know where the will is; and what it contains. That's the best way to avoid any confusion.

Hi guys, Great thread. It is so important to have plans, and even more important to tell people about your plans! Thought I would join in, I'm a lawyer (in NSW) and a wills/estate administration specialist (just finished my masters in this area). Can answer general questions about wills and estate administration in NSW, if you like! My babies will stay with the o/h, or will go to my parents. This is one of those thoughts/plans that keeps you awake at night isn't it! Or it is for me anyway :) hate to even think about it, but one has to. So feel free to throw qu's at me, I can't be really specific but general questions/advice is totally fine :)

Hi guys- A little off topic- but I would like to find someone to handle my Ridgy for me and have no idea how to go about it! I've handled her a bit but I'm terrible at it lol (no, I really am). So a little within this topic! There's no register or list or professional association for handlers is there? I know a few people in the show world but they all have their own Ridgys, and enough to handle as it is... Could anyone recommend a handler, or a way to go about finding one? My dog is not a feral I promise :) Cheers Emma