State Advocacy Issue

 Pet Owner or Guardian?

Animal Health Institute

November 2005

Pets play an important role in our lives, and it is common to refer to them as "companion" animals. Increasingly, in fact, Americans think of pets as members of their extended family.

But should pets be treated legally as if they were people? That is what is behind an effort to legally change the way we refer to our relationship with our pets. While proponents of this effort claim that new laws would raise the status of animals, such legislation would more likely harm pets by hurting people's ability to care for their pets properly.

Changes to the law, like the one proposed currently in a number of states and municipalities, would be likely to affect pets, their owners and their health care providers adversely in several ways:

  • They would create legal confusion about the relationship between owners and animals
  • They could limit—or even eliminate—pet owners' ability to freely choose an appropriate treatment for a pet.
  • They could eliminate pet owners' freedom of choice in decisions about the most appropriate way to care for your pet.
  • They could subject decisions about petcare to outside intervention by neighbors, other third parties and government authorities.

To protect against these adverse outcomes to well-intentioned legislation, pet owners should carefully consider the possible ramifications of any legislative or regulatory proposal that comes before local and state lawmakers to change the way we refer to the relationship between humans and their pets.

Are you a pet owner or guardian?

Recently, a number of organizations have begun campaigning to change the legal status of animals by replacing the term "pet owner" with the term "guardian." The term "owner" places responsibility on people to care for their animals, while the term "guardian" shares the decision-making rights and responsibilities with courts and other third-parties who might be able to claim-under new laws-an interest on the animal's behalf.

While proponents of guardianship claim it is a harmless recognition of the growing status of pets, guardianship would, in fact, represent a dramatic and negative change in the legal standing of animals.

There is no doubt that inserting the word "guardian" in place of "owner" in describing the relationship between a human and a pet would be regarded by courts as a meaningful change. Courts would then fall back on the long-established use of the word "guardian," which is typically applied to minors. Guardianship, in legal terms, is a complex fiduciary relationship subject to court approval. It is not a status that is sought to upgrade the status or standing of an individual, but one that is used as a fallback when no natural guardian – or parent – is present.

Historically, the law has classified pets as a kind of property. This status has enabled owners to protect their pets in the same way they can protect other property from undue restrictions and seizure.

Because there are a number of kinds of property, however, pets enjoy a special legal status. The law recognizes, for example, that pets are not the same kind of property as desks or cars. Rather, each state in the U.S. has laws requiring humane care of pets and criminalizing cruelty to animals. Other laws set standards for the care and handling of companion animals involved in commerce. So while pets do not have the same legal status as people, they are treated as a special type of property, a kind of property that requires humane treatment by pet owners and protects pets from irresponsible neglect and other forms of abuse by pet owners.

In contrast, under U.S. law, guardians are not owners; they are merely caretakers. Guardian status could reduce the petcare choices available to the caretakers. Legally, for example, human guardians must always act in the best interest of the "ward." What is "best" is determined by anyone with a self-proclaimed interest or expertise and who is willing to use the court system to force a caretaker to make the "best" decision.

So consider an elderly dog that has developed a severely arthritic hip. Currently, an owner has several treatment options available, from hip replacement surgery to less invasive and less costly alternatives. While some owners may indeed opt for the hip replacement surgery, other owners may choose less expensive options. However, a "guardian" would be required to act in the "best" interest of the animal; and if a neighbor, the local humane society or a local college professor believes that hip replacement surgery is in the best interest of the animal, the dog's caretaker could be forced to accept that option – affordable or not.

Another example: a pet owner may decide the family's dog should be confined to a kennel rather than roaming freely throughout the entire backyard. Under current laws, pet owners have the freedom to make that choice. But a guardian could risk being taken to court by a local animal rights group or by family members who disagree and want the dog to roam the yard freely – under penalty of the law.

Changing the way the law treats pets and the people who care for them from ownership to guardianship raises many questions about how pets will be cared for in the future. If pet owners today become, under new legislation, pet guardians, a number of things could happen:

  • Animal rights organizations or meddling neighbors could petition courts for custody of your pet if they don't approve of the way you care for your pet.
  • The treatment options you and your veterinarian decide on could be challenged by the local animal rights organization or other self-appointed experts.
  • It could be illegal to spay or neuter a pet because it deprives them of their "reproductive rights."
  • Veterinarians and pet guardians could be sued for providing what another individual might regard as inadequate care.

Guardianship laws also could have negative consequences for animal care and control organizations, which already have limited resources. They could be forced to deal with changes in euthanasia policies, increased responsibility for investigating animal abuse charges or responsibility for monitoring guardians.

It's important to understand that the attempt to replace ownership with guardianship is part of a broader agenda sought primarily by some animal rights activists. For them, this change is the first step toward placing animals on the same legal plane as people, and they see that step as more important than the fact that such changes will significantly reduce the rights and choices currently available to pet owners to provide for and protect their pets.

Pets are important and valued companions. That's why laws that protect pets from abuse are already on the books. Changing the laws to refer to pets in the same way we refer to family will not provide further protection to pets, but rather will limit the ability of pet owners to make decisions about the care and treatment of their pet.

Reproduced by courtesy of the Animal Health Institute (AHI)
Source:   Animal Health Institute (AHI)
Contact:  Dr. Kent McClure, General Counsel, Animal Health Institute