Guardianship for Animals
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The document discusses the concept of legal guardianship for animals as an alternative to considering them as property. It argues that guardianship would recognize animals as sentient beings deserving of protection from harm. A two-tier system is proposed with primary guardians like owners and secondary guardians like advocacy groups. Citizen suits are also discussed as a current way to challenge injuries to animals, though standing is sometimes denied. The document reviews arguments against guardianship but concludes the time has come for laws to better reflect the sentience of animals.
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Guardianship for Animals
- 1. Guardianship: Toward a more enlightened view of human-animal relationships and the law
- 5. If animals have it so good, why do they need guardians (cont.) ? (3) (2) (1)
- 18. Examples of animal transactions beginning to use “adoption” language:
Notas do Editor
- Virtually as long as humans have been walking on the earth, they have recognized the inherent worth of all creatures. Unfortunately, though, just as long, people have participated in and observed man’s inhumanity to nonhuman animals.
- First bullet: This is equivalent to approximately one dog in 4 of every 10 residences and one cat in 3 of 10. Or put another way, 63 percent of all U.S. households have at least one companion animal. Also, this is more than the number of human children living in the United States today !!! Many factors have contributed to this statistic, including couples having fewer or no children or having them later in life, and the growth of same-sex couples living together.
- Here are some headlines from the last few years taken from a variety of local, national and international media sources. They provide a glimpse of the very real problems that animals encounter on a daily basis and that, at least in some cases, might be able to be eliminated or at least ameliorated through guardianship.
- Here are some articles I excerpted from those headlines to show you just how disturbing some of this activity is. For example: (1) the zoo owner using a menagerie as his personal larder, (2) a rash of senseless animal dismemberings, etc., in a Midtown neighborhood in Tucson and (3) dog poisonings in city parks in Portland, Oregon, over leash vs. no-lease ordinances.
- First bullet: Animals presently are regarded as property, and this needs to be revised to better reflect current societal mores regarding animals and to provide the opportunity for more diverse and numerous parties to advocate on animals’ behalf in courts of law. Second bullet: Presently the primary litigants you see in animal cases are private owners and public custodians (and occasionally concerned citizens). Third bullet: Guardianship would allow literally any concerned person or group of persons to advocate for animals’ interest by becoming a legal guardian of an animal ward .
- First bullet: Temporary guardians would be appointed or accepted by the court to represent an animal or animals for the duration of a lawsuit or other court proceeding. Second bullet: Permanent guardians would be individuals or groups named “trustees” and charged with keeping an eye on their assigned ward or wards and ensuring a certain level of care throughout the animals’ natural lives. The latter already is being done with pet trusts.
- I would further propose dividing guardianship into a two-tier system, which would be made up of: First bullet: Primary guardians , such as owners , custodians and caretakers , who would have significant authority over the nonhuman creatures they oversee; and Second bullet: Secondary guardians , who would have less say than a primary guardian unless and until a primary guardian shirks guardianship duties or overtly harms or neglects charge(s).
- First bullet: B ut what happens when the ward is a nonhuman ? Will the courts still accord standing? Second bullet: They frequently were charged with and convicted of a variety of crimes, and often sentenced to die ! This was from the Ninth to the 19 th Centuries – started with the Greeks and the Romans; it also included inanimate objects at various times in history!
- I would submit that surely nonhuman animals deserve at least as much legal standing as cans of tomato paste !
- Citizen-suit provisions exist in a number of statutes that address animals, including the Endangered Species Act, which provides citizens with the ability to sue on behalf of animals where human activities have endangered or threatened a species’ survival or its habitat. However, even where citizens can file suit, plaintiffs can prevail only if they can show that they have been vicarious, indirectly harmed by an animal or group of animals’ own direct harms.
- First bullet: Government entities charged with enforcing animal welfare laws often must contend with lack of minutes due to shrinking staffs, lack of money due to slashed budgets, and lack of political motive to ferret out harms or prosecute wrongdoers – no pun intended ( especially when animal welfare not a priority for that administration! ). Second bullet: Citizen suits exponentially increase enforcement opportunities for government entities by empowering and encouraging untold numbers of passionate, enthusiastic, volunteer “eyes and ears” to look out for our furry (and not so furry) animal friends. In other words, the individuals and groups with the most proclivity for discovering and reporting animal abuses to the appropriate authorities will be the ones “doing the dirty work,” so to speak, which is ideal from a societal cost-benefit standpoint.
- First bullet: Drafted in 1990 by the National Conference of Commissioners on Uniform State Laws (NCCUSL), the Uniform Trusts Act validates trusts for lifetime care of companion animals. Second bullet: By permitting one to set up a trust to provide for a pet not only after its owner/guardian dies but also while that person is still alive (say, via a life estate with remainder ), it in effect establishes a guardian-ward relationship. Third bullet: I can see animal trusts also being used when an animal owner is convicted of mistreating an animal, and a judge orders payment of a certain amount of money to establish a trust fund for animal’s lifetime care. Another scenario would be where a public trust fund is set up to reimburse victims of dog bites whose owners lack insurance or financial resources to cover medical costs and legal judgments.
- Man discovered that “the eating of tasty animals” vastly expanded his formerly all vegetable, fruit and grain diet and also helped him survive. So it’s understandable that those who successfully hunted, captured and slayed game did not necessarily want to have to share the spoils of the hunt with persons who didn’t help put food on the table.
- I would argue that even if animals are kept under the present legal category of property, they can and should be regarded as unique and in many ways superior to inanimate property. Why? First bullet: Most people do not discard their animals, particularly companion animals, as they might a refrigerator or couch that has gotten “old” or “run-down” or seems “boring” in comparison to a “newer,” “flashier” model. Second bullet: Most bankruptcy jurisdictions exempt household pets from the requirement that all personal property be liquidated to satisfy creditors’ claims in bankruptcy.
- Response to No. 1: Animal owners already are considerably limited in what they can do to their animal property, based on anticruelty statutes at city, county, state and federal levels. In addition, guardianship does not take owners’ rights away or even diminish them but, rather, requires simply that the interests of owned animals be considered alongside owners’ interests. Response to No. 2: While many courts still balk at considering “best interests” of animal as they now must do for human children, the kinds of things needed by animals and human infants, for example babies not yet able to speak, are not all that different: Nutrients (milk/formula, later food & water) Bathing/Grooming Toileting Basic nurture Safety Protection from temperature extremes and the elements Medical care, e.g., vaccinations, illnesses & injuries Transportation; etc. Response to No. 3: Contrary to popular opinion, language can have a potentially dramatic effect on how we see things, especially over the long term. For example, while animal shelters and rescue groups increasingly refer to individuals’ obtaining a new best friend as “adoption” of a “companion animal,” pet stores and breeders still commonly term the transaction a “purchase and sale” of a “pet.” (Read Animal Awareness snippet here)
- The “adoption” language brings to mind human-child adoptions, although of course adoptions of animals generally are much more simplified and the process much more abbreviated (although both have striking similarities, like home checks). The choice of language should not be discounted, however: Nowhere in the world can humans any longer lawfully own other humans, so the growing prominence of “adoption” type language in regard to animals seems to indicate a movement toward broadening recognition of legal rights for animals.