|Euthanization request in will|
Member Question: A client recently passed away, and according to the executor of the estate, had verbally requested her young, healthy cat be euthanized, cremated and buried with her. While I know I could decline the euthanasia and give the dog to the caretaker to be euthanized by another veterinarian, I don’t want to do that.
I know animals are considered property, yet if an animal is abused by the owner they can be seized. I’m trying to figure out what to do.
NYSVMS Legal Counsel: It is true that animals are considered property, and that an owner may request that an animal be euthanized even if there is no compelling medical reason for the euthanasia. Euthanasia is not considered animal cruelty, provided it is performed in accordance with the AVMA’s guidelines on humane euthanasia. However, a veterinarian who objects to a euthanasia request from an owner is not obligated to perform the euthanasia; in such cases the veterinarian is required to return the animal to the owner (or owner’s agent).
The request from a deceased owner (either in a will or in other instructions from the decedent) that their pet be euthanized and cremated in order to be buried with them often presents a difficult situation for the animal’s veterinarian. Veterinarians who do not wish to euthanize a pet under these circumstances can discuss the issue with the deceased owner’s representative or executor, and explain their reasons for not wanting to euthanize the animal.
On several occasions, courts in other states have considered whether the direction in a will that an animal be euthanized must be followed, and have almost universally directed that this type of provision in a will should not be followed. The arguments that have been used in these cases may help a veterinarian resolve this issue with the deceased owner’s representative or executor. Where this request or provision in a will has been challenged, the courts have looked at a number of factors, including the reasons behind the owner’s decision to direct that the animal be euthanized. In the case of an older animal, or an animal that was ill, and is probably unable to be successfully placed in another home, a court may uphold the provision. However, in cases where there is no clear reason for the owner to direct the euthanasia, or the reason was capricious, the court will typically direct that the will provision should not be followed. An important factor that has persuaded courts to overturn this provision in a will is whether a new home is likely to be found for the animal. If it can, a court is likely to direct that the will provision directing the euthanasia of the animal should not be enforced.
Although I have not found a case where the owner wanted the animal killed simply so it could be buried with him or her, I think a court would consider such a request to be capricious. I would also note that it is not legal in New York State for an animal’s remains or cremains to be buried in a human cemetery, even when the remains/cremains are enclosed in a human coffin.
Veterinarians faced with elderly clients who are concerned about the fate of their pets upon their own death should encourage those clients to make provisions for the care of their animals after their death. New York authorizes the creation of a pet trust within a will, allowing an owner to set aside an amount of money for the care of their pet(s) after their death. Typically the pet owners are encouraged to designate in their will a person who will agree to take care of the animals with the sum of money set aside for that purpose. Any attorney preparing a will can assist a client in drafting a testamentary pet trust as part of the will.
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