Day At The Track

HORSE SLAUGHTER CONTINUES UNABATED

06:55 PM 06 Mar 2006 NZDT
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Courtesy Of Chris E. Wittstruck, Esq. and The United States Trotting Association

Recent actions by federal regulators in opposition to Congressional attempts to prevent domestic horse slaughter have ensured that the reprehensible practice will be with us for the foreseeable future.

Still, the root cause of the slaughter phenomenon is neither ambiguous nor deniable: Horses go to untimely deaths because horse owners permit it, either directly or by tacitly handing their horses over to those who see the animal’s flesh as a mere commodity. The slaughterhouses are the means, not the impetus, for the evil.

The overwhelming majority of Standardbred owners would never willingly permit their steeds to fall into the hands of killers. Yet, have you considered what will become of your animals upon your death? What happens if you are disabled to the extent that you can no longer participate in decisions regarding your horses? If you want your horses to enjoy tomorrow the same level of care and concern they enjoy today, the responsibility for careful planning falls to you.

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Short-Term Disability:

While we all accept death as an eventuality, many fail to consider the likelihood of prolonged periods of disability occurring before our ultimate demise.

Even periods of acute, short-term disability can have devastating ramifications. Consider the small stable or “backyard” horse owner who is rendered unconscious for several days in an accident. If provisions have not been made to care for the animals in an emergency, or if no one other than the owner regularly looks in on them, the owner might not be the accident’s only victim.

Taking precautionary steps, such as having a “horse competent” friend, relative or neighbor “check in” either with the owner or the animals themselves on a daily basis, is advisable. So too is carrying a simple pet card in a place within the wallet or pocketbook nearest the driver’s license. The card should articulate the number and type of pets in need of attention, their usual location, as well as numerous daytime and nighttime telephone numbers for persons who will know what to do (having this type of contact information readily available to first responders is probably a good idea for the non-pet owner as well).

At the barn, the types of specific needs for the individual horses (feed, medications, special cautions) should be clearly displayed regarding each animal on its stall door. Needless to say, an ample supply of provisions for several days should always be on hand.

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Long-Term Disability:

A broken leg sufferer receives several weeks of bed rest and lots of immobility thereafter.

Despite this, the individual always remains cognizant of responsibilities and is able to communicate in a meaningful way. Regrettably, this is not the case with someone who experiences a serious stroke, heart attack, senility or delusions. In such tragic circumstances, horse care much longer than simply “immediate” will be required.

One possible way to ensure a continuity of attention to your animals’ needs is the execution of a Durable Power of Attorney. In it, the “principal” appoints an “agent”, known as an attorney-in-fact to carry out all business and personal affairs in their place and stead.

The “durable” aspect derives from the document’s effectiveness despite the principal’s severe disability. While the document is a generalized estate-planning tool, a specific provision regarding pet possession, maintenance and the expenditure of funds for that purpose is both permissible and encouraged.

This is because most states require attorneys-in-fact to expend monies only for the care and comfort of the principal and his or her dependants. For estate law purposes, a horse is merely a tangible asset. Unfortunately, this means that your trotter or pacer is viewed in much the same way the law views your bedroom set or jewelry.

Accordingly, it is helpful to spell out that you want your horse cared for in the fashion to which it has been accustomed, thus letting third parties know that such care is at your direction, and not simply a frivolity conjured up by the agent.

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Intestacy:

Someone who dies without having made a valid Will is said to die intestate.

Under law, your next of kin would receive your assets. A childless elderly woman whose spouse has predeceased her might have a beloved horse end up in the hands of an animal-hating sibling or nephew. Again, as a tangible asset, the law will have little to say when this legatee decides to “dispose” of the asset.

Worse still, if no relatives are found, the horse would escheat to the state, meaning that it would become the state’s “responsibility.” In sum, for the animal lover, intestacy should be avoided at all costs.

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Written Instructions:

If horse business assets are held jointly with a spouse, the thought is that things will be just fine.

However, unless the spouses possess a similar level of sophistication, things can go awfully wrong. True, when Jim dies in late January, his jointly held farm, along with a nice band of broodmares, will go directly to his beloved wife, Alice. If Alice knows little about the industry, she may not realize the need to get the mares in foal, or which stallions to send them to, until it’s too late.

Which yearlings should be kept? Which should be sold? While not a formal legal instrument, a set of written instructions, updated yearly, might help preserve the economic value of an on-going Standardbred operation and spare the less-informed spouse the difficulty of making a decision with no guidance as to the deceased's wishes.

In addition to setting forth a variety of thoughts as to how to keep the farm viable, the document could direct the widow towards certain people who can be trusted, and away from folks who might not have the surviving spouse’s best interests in mind. The document could also prove invaluable if Jim becomes mentally incapacitated for a short time or chronically.

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Wills:

If someone makes a valid Last Will and Testament, they are said to die testate. Obviously, just like with a bank account or collectables, the testator, the person making the will, can make a bequest of his or her horses and other animals to a named beneficiary.

The inherent concern is that nothing will stop this beneficiary from immediately disposing of the horse, assuming that the person doesn’t reject the bequest outright. Thus, it is critical for the testator to be assured that the person receiving the gift understands why he or she will be the recipient of the horse and what’s expected. Also, the testator would be wise to name one or more contingent beneficiaries in case the intended caretaker stated at the time of Will execution is no longer around or cannot accept responsibility for the horse as planned.

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“Charitable (?)” Bequests:

Our industry is blessed to count among its ranks wonderful individuals and organizations dedicated to the preservation and longevity of retired racehorses. Unfortunately, some horse owners believe that it is proper to make bequests in their Wills leaving their horses to “charity.”

In truth, this purported “gift” is really a mindless act of irresponsibility wherein the testator is simply burdening an already overburdened charitable organization.

The New Jersey-based Standardbred Retirement Foundation, winner of the 2005 HTA Distinguished Service Award for its tremendous work in finding adoptive homes for horses in need, is such an organization. George S. Brodey, SRF’s Executive Director, suggests that some pre-planning be employed before making a “horse bequest” to a humane or rescue group, “Someone leaving us a horse in their Will should check with us first. It is important that people understand just how much it costs any organization to maintain a horse.”

Obviously, the bequest of a half-ton living thing should be accompanied by a monetary bequest sizable enough to ensure that the organization accepting the animal can adequately provide for its lifetime needs.

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Trusts:

Another method of providing for horses in the event of disability and death is the Revocable Living Trust.

As the name implies, assets are transferred during the life of the person creating and funding it, known as the settlor. Generally, the Living Trust is established as a substitute for a Will, with assets upon death being distributed according to the Trust’s provisions.

This method avoids lengthy and costly probate of the Will. The good news is that the settlor can direct his or her appointed trustee to provide and expend monies for care of an animal in the event the settlor is incapacitated prior to death.

Trusts may also be established within the provisions of a Will, and thus take effect only upon the settlor’s death.

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Honorary Trust:

Creating a trust to benefit a horse or other animal raises certain legal concerns.

First, one of the basic tenets of the law of trusts is that the beneficiary be able to sue the trustee to enforce the terms of the trust. Not surprisingly, horses aren’t very good at retaining attorneys! To cure this problem, many states have promulgated provisions modeled after the Uniform Probate Code creating Honorary Trusts for animals. The thought is that, since the horse cannot challenge the trustee’s actions, the settlor has carefully chosen a trustee who will be a truly “honourable” caregiver. Consider as an example a portion of the applicable New York rule:

“A trust for the care of a designated domestic or pet animal is valid. The intended use of the principal or income may be enforced by an individual designated for that purpose in the trust instrument or, if none, by an individual appointed by a court upon application to it by an individual, or by a trustee. Such trust shall terminate when no living animal is covered by the trust, or at the end of twenty-one years, whichever occurs earlier. Except as expressly provided otherwise in the trust instrument, no portion of the principal or income may be converted to the use of the trustee or to any use other than for the benefit of a covered animal.” (New York Estates, Powers and Trusts Law §7-8.1(a, b))

The second problem is highlighted in the provision stated above.

Many jurisdictions impose a prohibition meant to prevent tying up property in a trust for an elongated period of time. The law, known commonly as the Rule Against Perpetuities, states that property cannot be held in trust beyond “human lives in being, plus 21 years.” While Standardbreds do have a greater life expectancy than the typical dog (about 15 years for most breeds), they don’t live nearly as long as a cockatoo (70 years or more). Thus, while the potential for trust expiration prior to the death of the animal it is meant to protect does exist in theory, it has little practical application when the trust beneficiary is a horse.

While many of these basic concepts are straightforward, there are significant tax and other legal considerations that come into play. An attorney at law of your choosing, one fully familiar with your state’s trust and probate laws in general, and pet estate planning in particular, should always be consulted before embarking upon any of the items discussed above.

Then again, the best “animal lawyer” in the state can’t help you answer the single most important question posed: Who is best to care for your horse when you no longer can? Wills and Trusts are fancy pieces of paper. The success of your planning will be completely dependant upon the degree of soul-searching you undertake to identify the particular person or entity you will charge with the awesome duty of caring for a beloved horse in the exact way you envision. Moreover, the best caregiver in the world still needs to pay a dollar for a dollar’s worth of feed. Adequately funding the trust, or leaving the caretaker/beneficiary a proper cash bequest, is equally important.

Many people consider their horse to be part of the family or their best friend. Except for laws preventing animal cruelty, the law looks at your horse like a piece of furniture. The law decides who is legally entitled to your old mare; what happens next was left entirely up to you!

If you’re wondering when to think about this, remember the old adage: “There’s no time like the present!”

Chris E. Wittstruck, an attorney and Standardbred owner, is the founder and coordinator of the Racehorse Ownership Institute at Hofstra University, New York and a charter member of the Albany Law School Racing and Gaming Law Network.

ourtesy Of Chris E. Wittstruck, Esq. and The United States Trotting Association

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