This article examines the issues surrounding caring for pets after the disability or death of the pet’s owner. Given the feelings of many individuals towards their pets, and the costs of care and longevity of some types of pets, planning in this area can be of critical importance.

A good resource for pet owners is Providing for Your Pet’s Future Without You by the Humane Society of the United States (order a free kit by calling 202-452-1100 or e-mailing petsinwills@hsus.org). It includes a door/window sign for emergency workers, an emergency contacts sticker for inside of the door, emergency pet care instruction forms for neighbors/friends/family, wallet alert cards, and a detailed instruction sheet for caregivers.

Providing for Pets Upon the Owner’s Death

Outright Gifts

An individual cannot leave money outright to a pet. An individual may leave an outright gift of money to a caretaker with the request that the caretaker care for the individual’s pet for the rest of the pet’s life. However, because the caretaker received the gift outright, and not in trust, no one is responsible for ascertaining whether the pet is receiving the care requested by the pet owner.

Once the caretaker receives the gift and the pet’s owner is gone or incompetent, there is nothing to stop the caretaker from having the pet euthanized, throwing it out on the street, taking it to a local animal shelter, or using the assets in ways unrelated to the care of the pet. In addition, once in the caregiver’s hands, the assets are exposed to the caregiver’s creditors.

Pet Trusts

A pet owner can establish a trust for the benefit of the pet. The trust will designate a trustee and a caretaker. The pet’s current standard of care determines the endowment amount required to provide care for the pet. Factors include: the cost of daily care (food, treats, and daycare), veterinary care (yearly teeth cleaning, shots, nail trimming, and emergency care), grooming, boarding, travel expenses, and pet insurance. Additional factors may apply in particular cases.

Pet trusts allow the pet owner to provide detailed requirements as to how the caregiver must care for the pets upon the pet owner’s disability or death.

Pet Identification

To prevent the caregiver/beneficiary from replacing a pet that dies in order to continue receiving trust benefits, the pet owner should specify how the trustee can identify the pet. Micro-chipping the pet or having DNA samples preserved are two methods commonly used for verification.

Do not expect much from the holidays for at least a year.

Expect to feel completely numb, and then accept that it’s okay to feel that way. In many ways, numbness is the best coping mechanism for pushing through the holiday season. As such, don’t force yourself to do things that could bring you out of the numbness and stir up emotions. For example, stay away from serious Christmas music and restrict your playlist to whimsical Christmas music, such as “Here Comes Santa Claus” or “Up on the Housetop.” If necessary, avoid all Christmas music.

The same goes with decorations. If you want to put up decorations, great. If you don’t feel like it, then don’t. Forcing yourself to “get into the holiday spirit” will hinder the healing, not help.

However, this does not mean that you should hinder the holiday for others. If they want to listen to holiday music and you’re afraid it will upset you, just leave the room. If your family gives gifts to celebrate, don’t deny anyone this tradition.

It’s okay to cry.

Expect you or other family members to be struck by something that will bring on tears. If it feels uncontrollable or if you’re trying to be strong for others, it’s okay to escape to the bathroom for a few minutes of alone time. If your tears or someone else’s tears spur on tears from others, band together to comfort one another and don’t dwell on the fact that you all are crying. Most likely, the tears will end as quickly as they started.

Avoid alcohol.

Alcohol has the tendency to lower one’s inhibitions, which does include emotions, so you are far more likely to shed tears or become too emotional after a drink than without a drink. If you are the type who is a sad or gloomy drinker, then avoiding alcohol over the holidays is doubly important.

Avoid activities that you always shared with your loved one.

Don’t do the things that you and your loved one always did together. Don’t go to the traditional places either. If you can, keep things simple. Maybe try to arrange the holiday to be spent at a different house this year. You can always return to traditions the following year.

Don’t spend the days leading up to the holiday worrying about how to cope with them.

The worst anxiety is always the anxiety of how to deal with the upcoming anxiety. Obsessing over how to get through the holiday will not only make it seem far worse than it is, but it can make the days seem even longer. Treat all days leading up to the holiday as ordinary days and remember that the holiday lasts only 24 hours. Once it is over, make sure it is completely over so you can return to your regular routine and let time run its course.

To anyone who will go through the holidays this year with the loss of a loved one, remember that your loved one would want you to do whatever you need to do–within reason–to get through the day as smoothly as possible.

Image by © Robert Llewellyn/Corbis

When do you need your estate plan to work? The answer is when you die or become disabled. The problem is most estate plans are designed based on the circumstances when the plan is created and usually have language to cover some contingencies. I have just come back from a continuing education program that opened my eyes on a better way to make sure that the estate plan I design for you works when your family needs it the most. I would love to have an opportunity to discuss with you how we can better protect the two most important things in your life: everyone you love and everything you own.

In order to design a plan that will work when your family needs it, I’ll need to know the answer to the following questions:

• When you are going to die?
• What the laws will be when you die?
• What assets will you own when you die?
• What will your family situation be when you die?
• Will all your assets be in the trust when you die?

One of the major problems is there are still things I don’t know. Socrates is quoted as saying, “The more you learn, the more you realize how little you know.” I have been helping people protect those they love by designing estate plans for over 15 years, but I have realized there is a lot I cannot predict or control.

I have been trying to design plans that would work regardless of the answers to those questions, but I realized there are things that none of us can predict. When I first started creating trusts, I would give the clients instructions on how to get the assets into the trust and send them on their way and assume the trust would get funded. Then I had a client’s daughter come into me after her mother’s death and ask if all the assets were in the trust; I had to answer, “I don’t know.” So I tried to fix that problem in the future, by holding a funding meeting with the client where I made sure that all the assets were in the trust. Then I had a client’s son come in and ask 10 years after the trust was created and funded, “Are all the assets in the trust?” And again I had to say, “I don’t know, because I don’t know what your mother has done over the last 10 years.”

I have come up with a solution that I would love to discuss with you. Please call Tammy to schedule an appointment.

I have exercised more in the last week than I have over the last 15 years, because we just changed our health insurance  to one that included a membership to a local gym. I was naïve enough to think I could just start exercising at the same level as 15 years ago. I am realizing that my body is older than the last time I exercised. I keep telling myself that these aches and pains are my body building muscle. I always feel so much better when I am exercising, so I don’t understand why it is so hard to motivate myself to exercise. One motivating factor is when I ask my healthy clients, who are in their 80s and 90s how they stay healthy, the most common answer is exercise and staying active. So I am one week closer to be healthy in my 90s.

Before we get too much further in, let me give you the definition of a Supplemental Needs Trust or a Special Needs Trust. A Supplemental Needs Trust is a trust that is designed to protect assets for an individual with a disability. These trusts protect the eligibility for government benefits that are asset and income based. These trusts supplement what is available under the government benefits without jeopardizing these benefits.

It is important to realize when to use a payback provision in a Supplemental Needs Trust and when it is unnecessary. A payback provision is required when the supplemental needs trust is funded from the assets of the individual with a disability. This trust must include a provision regarding paying back the state for any benefits paid on that individual’s behalf. If the trust is funded by a third party, this provision is not required.

Whether it’s necessary to include a payback provision often confuses clients and even professionals, who are not experienced in this area. I have heard of a situation where a mother decided not to leave assets to the disabled child, because she is concerned about the payback provision applying. She was not given correct information. Because any trust set up by the mother is a third party supplemental needs trust, no payback is required. If a payback provision is included when it is not necessary, then assets that should have gone to the family or other designated beneficiary will instead be paid to the state.

To qualify as a HEET, the trust must have at least one beneficiary that is a charity with a substantial present economic interest. Because a charity is a non-skip-person, by vesting a charity with an interest, the trust avoids taxable transfers either upon creation or at the time of any subsequent distribution, unless the charity was included primarily to postpone or avoid application of the GST. There is no guidance as to the definition of “substantial present economic interest.” Most attorneys consider a 10% unitrust amount paid annually to charity sufficient to demonstrate that the charity is a bona fide continual non-skip-person beneficiary.

A Health and Education Exclusion Trust can be structured as a grantor or a non-grantor trust. A grantor trust would not be diminished by income tax during the grantor’s lifetime. Upon the grantor’s death, it would cease to be a grantor trust and would instead be taxed as a complex trust. A non-grantor trust would be able to maximize the use of the charitable deduction. There are no charitable deduction adjusted gross income limitations applicable to trusts as with individual taxpayers. So, a non-grantor trust may deduct up to 100% of its income for charitable contributions. On the other hand, a non-grantor trust creates an income tax liability for its non-charitable beneficiaries. Distributions paid on behalf of an individual beneficiary may carry out income on behalf of that beneficiary, who would then be required to pay income tax on that distribution under IRC §652 or §662.

The trust should specifically define those distributions that are “qualified transfers,” so that a trustee without familiarity of the Code would have a guide built into the trust document. With respect to education, these include tuition payments to an educational organization described in IRC §170(b)(1)(A)(ii) for income tax purposes (one that maintains a regular faculty and has both a regularly-enrolled body of students and an established curriculum), for the education or training of an individual, if paid on behalf of the skipperson directly to the educational institution. Payments for other expenses, such as books, room, board, and fees–even if they are made directly–are not qualified transfers and would be subject to GST tax upon distribution.

Qualified transfers for health care are defined as payments to any person who provides medical care (as defined in IRC §213(d) for income tax purposes) as payment for such medical care.14 Accordingly, qualified transfers for medical care include medical and long-term care insurance premiums, which are within the definition of medical expenses for income tax purposes. Over-the-counter medications and cosmetic surgery would not be eligible transfers.

We visited many tourist attractions and Food Network restaurants along the way. Brad enjoys watching the Food Network, so he picked out several restaurants along the way. When the boys grow up, they will probably tell their children about me making them go see the largest bottle of ketchup in the world. In case you are curious, it is just outside of St. Louis, and it is a water tower shaped like a bottle of ketchup.

My favorite part of the trip was Niagara Falls. The falls were amazing from both the U.S. and Canadian sides. As I have told you in previous newsletters, I love to visit waterfalls. The sound of the rushing water is so soothing. Brad’s favorite part of the trip was the forts we visited along the way. Matthew enjoyed the Case Knife outlet in Branson. He has started collecting knives.

James is always talking about making memories as a couple and as a family. This will be a trip we remember for the rest of our lives. Some people wait until they find out they are dying to live, I am trying to enjoy life along the way. I meet with so many people who regret not taking the time to enjoy their loved ones while they are still healthy.

Durable Power of Attorney

A Durable Power of Attorney allows you to appoint someone to make financial decisions for you if you are unable to make those decisions for yourself. If you become incapacitated, the person you name can take care of financial matters for you. The power of attorney may be general or limited. A general power of attorney will allow the person you name to do anything financial on your behalf. This authority should be only given to someone who you would trust with everything you own. A limited power of attorney can be limited to certain transactions. It is usually used for selling a house.

However, be advised that it is becoming increasingly difficult to get banks or investment firms to recognize a power of attorney. There is nothing under Texas law that requires an institution to accept a power of attorney.

Medical Power of Attorney

A Healthcare Power of Attorney or Medical Power of Attorney allows you to appoint someone to make medical decisions for you, if you become too ill or incompetent to make decisions for yourself.

Directive to Physicians and Family or Surrogates

Directive to Physicians are sometimes called “living wills.” The Directive tells the doctor whether you want life-sustaining procedures withheld or stopped in the event there is a terminal or irreversible condition. You can specify in the Directive that you want life-sustaining procedures continued even if you have a terminal or irreversible condition.

DNR

DNR stands for “Do Not Resuscitate.”  A DNR tells the medical personnel that you don’t want CPR or artificial ventilation or to generally be resuscitated under any circumstances. A DNR must be signed by a physician and two witnesses.

Organ Donation

An Organ Donation Form allows you to specify what organs you want to donate and for what purposes.

Emergency Document Card

An Emergency Document Card allows healthcare personnel access to your medical documents in the event of an emergency.

Authorization for Release of Medical Information

An Authorization for Release of Medical Information or HIPAA authorization allows you to specify who has access to your private medical information.

Declaration of Guardian

A Declaration of Guardian allows you to specify who will act as guardian of your estate and/or person in the event you become incompetent. You can also specify who you do not want to become guardian under any circumstances. Guardian of the Estate manages your assets and guardian of the person makes medical decisions and other decisions that do not involve finances.

I just got back from 40 hours of CLE on Estate Planning. I learned about exciting new concepts like a Gun Trust. This trust is designed to help my clients who own guns (including family heirlooms) pass these guns to the next generation without violating federal law. There are several categories of people who cannot legally own firearms. If a trust is not worded properly, the trustee could accidentally violate federal law and face prison time and fines.

Also, I am looking into secure online document storage for your estate planning documents and other important family information. I will write more about that later.

In May I attended 40 hours of CLE on Planning for Special Needs and Medicaid. I want to keep improving my Elder Law practice also. These areas are constantly changing. For example, I learned about making sure the Supplemental Needs Trust is flexible enough to care for the needs of the person with special needs from estate planning CLE courses.

Burnout most often occurs when caregivers aren’t able to get the help they need, or if they try to do more than they can, either physically or fiscally. Burned out caregivers may be fatigued, stressed, anxious, and depressed. Many also have accompanying feelings of guilt if they spend time for themselves instead of caring for their loved ones.

Some symptoms of caregiver burnout include:

• withdrawal from friends and family;
• loss of interest in activities;
• feelings of hopelessness and helplessness;
• changes in appetite and/or weight;
• sleep pattern changes;
• becoming more sickly;
• physical and emotional exhaustion; and
• unusual irritability.

Preventing Caregiver Burnout

There are some things you can do to help prevent caregiver burnout. The most important one is to be realistic with the goals for your caregiving. Set realistic goals, understand that you may need help, and remember to ask for help. Also be realistic with your loved one’s illness, especially with progressive diseases such as Parkinson’s, Alzheimer’s and terminal cancer. Don’t forget to be realistic about your own limits.

Next, remember to take care of yourself. Find someone to talk to about your feelings and frustrations, talk to a professional, or join a caregiver support group. Always, always set aside at least an hour or two a day for yourself. Don’t think of it as being selfish, because in reality, it’s a necessity.

In addition, understand that your feelings of frustration are normal. They do not make you a bad person or caregiver. Bottling them in and never venting to others is the unhealthy option that can lead to burnout.

If You Have Caregiver Burnout or Know Someone Else Who Does

If you or someone you know is a caregiver and is already suffering from stress and depression, seek medical attention as soon as possible. Both stress and depression are treatable.

Next step: contact outside resources for assistance. These can include home health services, adult day care, private care aides, professional caregivers, caregiver support services, and nursing homes or assisted living facilities.