Beyond The Will

Do I Need to Nominate a Guardian for My Child or Pet?

June 18, 2021


In the unfortunate situation where you are not available to care for your child or pet, it is prudent to plan ahead by nominating a guardian for your child and/or pet. Advance planning avoids potential court fights over control and power over a loved one.

For a child, this nomination can occur through a standard Durable Power of Attorney, a Will, or a separate Minor (Child) Power of Attorney. In selecting a guardian for a child, be sure to think carefully about location, common values and religious beliefs, parenting skills, and availability to care. The same considerations apply to a backup guardian, in the off chance that the nominated guardian is unavailable. It is always helpful to have the contact information for your child’s pediatrician and nearest hospital on the fridge for a babysitter. In thinking ahead, in the event of an emergency, it is better to have a file in your house containing more information, such as dentist, insurance, allergies, and any other information a long-term caretaker would need.

Similarly, for a pet, the nomination of a guardian can occur through a Durable Power of Attorney or a Will to provide for the care of your animals during your incapacity. Pet trust expert Liza Connelly recommends naming a guardian who also has designated money to pay for care, the vet, food, etc. She also suggests ensuring care for your animal by adding successor guardians, with the final nominated guardian being a reputable shelter, such as the MSPCA, if all other nominated guardians are unable to serve. In the instrument, you can include powers regarding medical care, such as authorizing veterinary care and emergency and maintenance needs; burial, if your animal dies while you are incapacitated; and alternative, temporary homes. There are additional ways to ensure the care of your animal during your incapacity, such as keeping a pet ID card in your wallet or purse; leaving a list of medications, food, and veterinarian information in your home; and having an organized file in your house containing your animal’s vaccines, check-up information, rabies tags, insurance information, dog walker information, etc.

Nominating a guardian for a pet might sound unusual. Interestingly, all 50 states have enacted pet trust statutes, including Massachusetts in Section 408 of the Massachusetts Uniform Trust Code. Studies reveal that 12% to 27% of pet owners include pets in their Wills. Celebrity stories make the use of pet trusts more widely known, even if these stories are fodder for tabloids. For example, New York hotel heiress Leona Helmsley left $12 million of her estate to a trust benefiting her dog, Trouble, a white Maltese (pictured below). The bequest was later reduced to $2 million after an estate dispute involving disinherited close family members. Interestingly, in her Will, Helmsley nominated her brother as the guardian of Trouble, but he declined to serve in the position. The lesson here is to be sure to nominate a guardian for your pet who wants the position and loves them.

So, for both a child and a pet, the best course is to plan ahead through estate planning to ensure that your loved one’s needs are met.

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