Because I Was Asked In Another Topic:

[WreckitWhippet]

I'm confident that I have picked the right person to carry out my instructions, be it desex and rehome, rehome and co-own, keep themselves or euth. My Husband would keep a couple of my dogs, the rest will be dealt with by a person that I trust implicitly.

[nawnim]

This topic is very interesting and close to my heart. Does anybody know about living wills? What happens if an owner who lives alone has a stroke and goes to hospital? What happens to her dogs? Can someone have them pts?

eschlachter hi. I am about to update my will and I would like to know more about how I can ensure that my wishes regarding my pets are carried out. Just some general advice would be fine. I am in the ACT.

[eschlachter]

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.

[eschlachter]

I'm actually interested in this as well. There was a recent article about a woman bequeathing her estate to the RSPCA on the grounds that they looked after her dog. They put the dog down before probate even went through. Can they legally retain the funds from the estate?

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!

[raz]

No thats great esch. Thanks for taking the time.

[minimax]

I'm actually interested in this as well. There was a recent article about a woman bequeathing her estate to the RSPCA on the grounds that they looked after her dog. They put the dog down before probate even went through. Can they legally retain the funds from the estate?

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.

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

Does that mean setting up a trust fund so your pets are looked after isn't valid or enforceable, as Danny's Darling was saying she has done, and it would really depend on the wording?

Edited April 10, 2013 by minimax

[Sheridan]

Esch, would a legal agreement between the person/organisation looking after the dog and the owner be a way around that?

[eschlachter]

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.

[cowanbree]

This is the main reason why my trust has a set amount of money in it, controlled by 2 different people and any remaining money goes to an outside party that has no say otherwise. In the end you do have to be able to trust somebody as nothing would prevent them having everyone pts to save the bother if they really wanted to. That said I am very sure that my wishes would be followed.

[Staffyluv]

After what I have just been through a will is just a piece of paper so the government don't get the estate..

Any one who has a claim can make one and bugger what the deceased actually wanted..

[Sheridan]

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.

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?

[eschlachter]

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.

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

Edited April 10, 2013 by eschlachter

[Loving my Oldies]

Right, looks like I need to check my will and see how enforceable my provisions are and make sure they are watertight.

[eschlachter]

Right, looks like I need to check my will and see how enforceable my provisions are and make sure they are watertight.

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.

[OSoSwift]

I am the benefactor of around 6 dogs now. I have spoken in length about what they would like to happen ie rehomed, euthed etc. Two of the people are elderly, one you with young and elderly dogs. My own will stay with my family if it is only me gone or returned to their breeders.

[OSoSwift]

Oh and I have no idea if any money has been left to look after the dogs as I am not worried about that. I will do exactly as I was asked to do by each person. Any financial cost is mine to bear once I agreed to care for/rehome the dogs

[Loving my Oldies]

Right, looks like I need to check my will and see how enforceable my provisions are and make sure they are watertight.

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

Oh and I have no idea if any money has been left to look after the dogs as I am not worried about that. I will do exactly as I was asked to do by each person. Any financial cost is mine to bear once I agreed to care for/rehome the dogs

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.

[eschlachter]

This topic is very interesting and close to my heart. Does anybody know about living wills? What happens if an owner who lives alone has a stroke and goes to hospital? What happens to her dogs? Can someone have them pts?

eschlachter hi. I am about to update my will and I would like to know more about how I can ensure that my wishes regarding my pets are carried out. Just some general advice would be fine. I am in the ACT.

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.

[eschlachter]

Esch, would a legal agreement between the person/organisation looking after the dog and the owner be a way around that?

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.

[eschlachter]

Right, looks like I need to check my will and see how enforceable my provisions are and make sure they are watertight.

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

Oh and I have no idea if any money has been left to look after the dogs as I am not worried about that. I will do exactly as I was asked to do by each person. Any financial cost is mine to bear once I agreed to care for/rehome the dogs

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