GUARDIANSHIP INSTEAD OF OWNERSHIP IS HARMFUL TO ANIMALS
Why Animal Guardianship is Harmful to Animals
Animal Extremists LOVE to use language that seems innocuous to trip up well-intentioned people and push their agenda and ideology. Unfortunately, they have been successful in duping people ranging from lawmakers to pet owners and even some people in the veterinary industry. One of their current tactics is to push for the reclassification of animal owners to animal guardians. The term animal guardian is dangerous and could have long lasting and far-reaching implications for animals, animal owners, and veterinary medicine.
Animals are Property
Under the law, animals are considered property. They are “owned” by individuals who are called to protect them, care for them humanely, give them veterinary treatments as needed, provide sufficient food and water, and when the time comes, end their lives in a humane manner. Those are the basics. If an individual wants to do more for them, that is their prerogative, but it is not required by law.
Animal extremists, however, are pushing to end the designation that animals are property. These ideologues are determined to reclassify animals so they can achieve “personhood.” To do so, they are changing the lexicon to include actual legal terms, like guardianship. This is troubling as we will further point out.
Pet Guardianship and Pet Parents
“Pet Guardian” or “Pet Parent” is the new way some groups and even pet food companies are referring to animal owners in their advertisements and marketing materials. Instead of being a pet owner, you are a “pet parent” or “guardian.” This tactic is used to elevate animals, invoke emotional responses, and supposedly has a less negative ring to it. However, there are those who strongly caution against using these terms and for good reason.
American Veterinary Medical Association
As early as 2005, the American Veterinary Medical Association (AVMA) addressed this very issue. The organization representing over 97,000 member veterinarians nationally still finds this subject applicable as recently as November of 2019.
Their stance reads:
“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 our 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 not only to animal owners and service providers, but also to our society and the animals. These include, but are not limited to:
- 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.
- 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.
- 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.
- 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.AVMA has continued to oppose the language of guardianship as the veterinary community, breed associations and attorneys see the campaign as a Trojan horse. Attorney Gregory M. Dennis assisted with writing AVMA’s response to the guardian initiative and made the comment:
“To lawyers, ‘guardian’ has a considerable amount of legal significance. Ownership and guardianship are not matters of semantics; they’re not interchangeable terms.”
Individual Veterinarians Weigh In
In an article in dvm360 magazine, dated 12/31/2010, veterinarians across the country weighed in on the language change. Both veterinarians and the AVMA said that animal guardianship is not in the best interest of owners or animals.
Over the years, the role of some animals has shifted from an agricultural use to that of a companion. The AVMA has stated that changing from ownership to guardianship could result in more litigation, higher costs of animal care, and fewer people adopting animals.
Dr. John Scamahorn, who owns a mixed-animal (small animals and livestock) practice in Indiana, agrees with AVMA’s stance saying:
"I look at guardians as those looking after my mother. I don't know that it could be applied to animals," he says, adding he thinks veterinarians will get caught in the middle.
"Ownership is clear cut. The owner can authorize treatment. Guardianship puts another spin on things," Scamahorn says. "The animals they are trying to protect could actually end up suffering while trying to sort out who is authorized to elect care."
Dr. Ron Cott, veterinarian and retired associate dean at the University of Missouri College of Veterinary Medicine, also is against making the change saying:
"There are a lot of legal implications when you give them [pets] rights. You become the guardian and they are the ward," he says. "Say it costs $3,000 to do a procedure. You are going to be forced to do it, even if you don't have the money. The neighbor down the street could find out you aren't doing it and take you to court for cruelty to animals."
In a blog on Embrace Pet insurance’s website, Dr. Patty Khuly, VMD, gave her opinion on the subject:
“‘Guardianship’ means that you are put in charge of your pet’s health and well-being for the rest of her life. Consequently, in the eyes of the law, she’d look more like your child and less like your refrigerator. But while it seems a sound principle for those of us who already treat our pets like children, changing this designation legally can get tricky.
Currently, if your cat breaks her leg, you’re legally allowed to elect any approach to its treatment as long as it’s considered roughly humane. You may even elect for no intervention at all, allowing her to slowly limp her way back to a reasonable state of functionality. Few jurisdictions would challenge your right to do so unless someone complained that you were allowing your pet to suffer (and it might be hard to prove that she was).
Meanwhile, under guardianship laws, you would be unable to forgo full assessment of her condition (including X-rays or any other means to determine her condition) before a licensed vet could legally treat her or euthanize her. If you had no money to treat her adequately (to alleviate her pain, at least), you would be required to euthanize her. Although this sounds horrible, it would be the humane thing to do and most of us would be on board with this effect of our new guardianship status.
If, however, euthanasia is considered too harsh an outcome (for example, when life-saving measures are readily available), a guardian would be liable for any reasonable treatment required to make her well again –– whether you wanted to spend the money or not.”
What Attorneys Say
In 2002, the American Veterinary Medical Law Association wrote an article called “Ownership of Animals vs Guardianship of Animals: The Effect of a Change in the law on Veterinarians in California” in response to an inquiry letter written by California Veterinary Medical Association in December of 2001.
The article goes into great detail citing property laws, guardianship laws and how those laws would apply to someone who is an animal guardian. One portion of guardianship law that most “animal guardians” may not be aware of is that “a guardian can be removed if they: a) fail to use ordinary care and diligence; b) continue not to perform their duties; c) show an incapacity to perform their duties suitably; d) are convicted of a felony or e) have an interest adverse to the performance of their duties such that there is and unreasonable risk they will not faithfully perform their duties.”
American Kennel Club Viewpoint
The American Kennel Club (AKC) published a brochure titled, “Be Your Dog’s Owner, Not its Guardian”. The article outlined four main challenges that bolster their viewpoint against classifying animal owners as guardians:
- Owners have personal rights to protect their property (dogs) from undue restrictions and the term guardian represents a first step in eliminating an individual’s right to own, breed, sell and participate in events with dogs.
- Regarding public safety, the declassifying of dogs as property could result in numerous legal challenges. Veterinary and health care challenges include the fact that if people don’t “own”: their dogs, then who can make decisions involving veterinary care, sterilization, or euthanasia.
Most importantly, the AKC states changing the classification of dogs as property sets a very dangerous legal precedent. By declassifying animals as property, it raises their legal status. Many extremist groups seek to convince the courts that animals have rights and should have the same status as humans.
Animal Guardianship: Is it Animal Extremists’ Final Blow to Animal Ownership?
It is obvious that using the term “animal guardian” instead of animal owner has ramifications most owners do not consider.
“Guardians” would be required to pursue veterinary treatment regardless of cost or could be forced to euthanize an animal. They would no longer be allowed to decide to either spay or neuter the animal or abstain from spaying or neutering. Guardians could lose the ability to file malpractice against a veterinarian since the animal is no longer property.
Owning or keeping animals may become burdensome with consequent negative impacts on animal-related industries, including loss of jobs. Financially, it could cause people to no longer keep their animals or adopt or purchase replacement animals.
Legal guardianship is a dangerous legal precedent. By giving legal rights to animals, we play into the animal extremists’ hand. It becomes the first step in the larger campaign of ending the keeping of pets, raising livestock, and breeding altogether.
Don’t allow animal extremists to use animals as a pawn in their ultimate game of ending animal use as food, fiber, companionship, entertainment or service.
AVMA Stance HERE HERE and HERE
American Veterinary Medical Law Association HERE
Article Guardian vs Owner HERE
DVM 360 Article HERE
AKC Information HERE