Another thought on Ownership versus Guardianship

Ownership versus Guardianship
(Approved by the Executive Board, June 2005)
Source: AVMA Task Force on Legal Status of Animals

Some animal owners may like to refer to themselves as "pet guardians," however "guardian" is a legal term that has significant legal implications and repercussions. Its use to describe the relationship between animals and their owners is inappropriate. Under well-developed principles of guardianship law, guardianship is a fiduciary relationship (the highest legal civil duty owed by one person to another). The ward's interests are always to prevail over those of the guardian. Some conflicts that arise from application of human guardianship law to animals are described in the text that follows. On the basis of these conflicts, the American Veterinary Medical Association (AVMA) recommends that "guardian" not be adopted, even to semantically describe the relationship between humans and their animals.

The AVMA recognizes that American society has evolved from an agrarian one in which the animals most of us owned primarily had economic utility, to an urban one in which most of us derive some emotional value from our animals. Use of guardian, however, does not clarify the responsibilities of owners to their animals that are important for forming good human-animal bonds. Instead, use of guardian may create legal questions and consequences that have the potential to adversely affect both the animals and humans involved in these relationships. Such legal questions and consequences apply to animal owners, service providers, society and animals, and include, but are not limited to:

Animal Owners

Reductions in the rights of owners and imposition of additional legal obligations—With respect to veterinary care, animal owners will have less authority and fewer treatment options. Required treatment may exceed the financial capacity of the owner to pay, yet guardianship will require that owners accept such financial burdens. Financial inability to provide treatment could easily result in increased animal abandonment.

Entailment of wards—Use of guardian gives rise to its counterpart "ward." The ward is defined as the person for whose benefit the guardianship has been established. Wards have legal rights. Applying human guardianship law to animals would mean that animals have legal rights that can be recognized in court (i.e., animals would have legal standing). This may subject owners to civil lawsuits filed by third parties on behalf of the animal.

Inability to select procedures such as euthanasia or spay/neuter—Owners wishing to relieve animal suffering by euthanasia may no longer have that option. Non-health justifications for euthanasia, including population control, may no longer be acceptable under guardianship. Spaying and neutering may also not be possible, if such procedures were not deemed to be in the best interest of the animal.

Confidentiality of veterinary information and control of medical records—Where confidentiality of veterinary medical records is governed by state statutes or regulations, conditions are defined under which and to whom medical records may or must be released. Generally owners have authority over release of their animals' medical records. Under guardianship, a veterinarian, contrary to the owner's wishes, may be able to release information to third parties because he/she believes it is in the best interest of the animal. Conversely, the veterinarian may choose not to release medical records to the owner or others because he/she believes it is not in the animal's best interest to do so.

Ability to transfer an animal to another party—Background checks may be required to ensure that transfer of an animal from one guardian to another is in the best interest of the animal. Transfer of guardianship from one guardian to another, for profit, may not be legal. Third parties may have the opportunity to impede transfer proceedings if they deem such action to be in the best interest of the animal.

Coverage of animal-related claims by homeowners' insurance—Homeowners' property loss insurance may no longer cover animal-related claims should animals be no longer defined as property under the law. Under guardianship, animals would no longer be considered property.

Required registration as guardian—In states having guardian registries, animal guardians may be required to register and to comply with all laws and regulations pertaining to that registration. Requirements for registration could include background checks, bonding, and conflict-of-interest evaluations. Registration processes are time-consuming and potentially costly.

Annual guardianship reports—Animal guardians may be required to file annual guardianship reports, including associated financial reports.
Service Providers

Loss of protection under animal abandonment laws—Animal abandonment laws are predicated on the basis that animals are property. Guardianship removes the status of animals as property.


Veterinarians' responsibilities unclear—The veterinarian's responsibilities become unclear when a guardian's direction is contrary to the best interests of the animal. Veterinarians may be required to go to court to obtain a judicial determination as to whether or not theirs or the guardian's direction is the appropriate course of action. Inability to provide timely treatment to an ill or injured animal during the course of court proceedings creates the potential for unnecessary animal suffering. For example, debate as to whether to treat a compound fracture versus selecting euthanasia for the animal could create the potential for continued pain, infection and other complications while awaiting a judicial decision. Cases involving animal issues are likely to have lower priority than those involving human issues.


Prohibitions on prescribing and dispensing controlled substances—Veterinarians may not be able to lawfully prescribe or dispense controlled substances or legend drugs to a guardian who no longer has legal status as the owner of an animal (i.e., current law assumes animals are owned and that owners receive drugs and administer them, as prescribed, to the animal).


Payment for services—Guardianship may create questions as to whom (guardian) or what (guardianship) is responsible for payment of associated animal services. Personal payment guarantees may need to be obtained.


Interstate transport—Service providers may have an obligation to prevent the physical transfer of an animal from a guardianship state to an ownership state.
Society

Unconstitutional taking of private property—A complete shift to guardianship could result in claims of a state having unconstitutionally taken private property (animals) without just compensation.


Impacts on existing statutes and regulations—Numerous statutes, regulations and policies would have to be reviewed and language altered to replace owner with guardian. These include, but not limited to, pharmacy laws, controlled substance laws, tax laws, veterinary practice laws, and other laws, regulations and policies related to animal use and services.


Impacts on ability to responsibly use animals—Guardianship may preclude the responsible use of animals for agricultural production (food and fiber), research, exhibition and entertainment (e.g., racing, circuses, rodeo), and companionship. Use of animals and animal products for such purposes may no longer be legal.


Ability to control, quarantine and vaccinate animals—Guardianship may affect the ability of governmental agencies to control and quarantine animals and require vaccination. Ensuring animal and public health requires the ability to effectively control and eradicate disease. Quarantine, vaccination, and sometimes depopulation, are necessary components of effective disease control and eradication.


Conflicts between federal and state statutes, regulations and policies—Potential conflicts may arise between states' laws, regulations and policies that are predicated on the basis of guardianship and federal laws, regulations and policies that are predicated on the basis of animals as property.


Homeless/unwanted animals—Financial burdens and inability to control burgeoning populations (e.g., problems associated with euthanasia and spay/neuter choices) may both contribute to the problem of unwanted animals.


Use of assistance animals—The concept of assistance animals (e.g., guide dogs, hearing dogs) may be objectionable under guardianship; therefore, there may be fewer animals available to provide such services. The use of animals for search and rescue may also not be acceptable.


Burdens of ownership—Owning or keeping animals may become burdensome with consequent negative impacts on animal-related industries, including loss of jobs.
Animals

Bidirectional benefits of human-animal bonds lost—Under guardianship, people may be less willing to possess animals because of concerns about increased liability. Some responsible individuals and animals would thereby be deprived of the benefits of the human-animal bond.


Reduction in animals' receipt of needed services—Guardianship may reduce a person's willingness to seek appropriate services for animals in a timely fashion.


Animals left in limbo—Guardianship may leave the welfare of animals in limbo during associated legal proceedings. A delay in the veterinarian's ability to provide medical care is one example.


Adverse effects on health and welfare—Guardianship may adversely affect the health and welfare of individual animals and animal populations.

Source: AVMA Task Force on Legal Status of Animals
Contact: Dr. Gail Golab, Asst. Dir., Prof. and Public Affairs, AVMA, 847-285-6618