2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 16 - Trust Administration
Part 9 - Colorado Uniform Trust Decanting Act
§ 15-16-923. Trust for Care of Animal - Definitions

1. As used in this section, unless the context otherwise requires:
   1. “Animal trust” means a trust or an interest in a trust created to provide for the care of one or more animals.
   2. “Protector” means a person listed under section 15-11-901 (3)(d) with authority to enforce the trust on behalf of the animal.

2. The decanting power may be exercised over an animal trust that has a protector to the extent the trust could be decanted under this part 9 if each animal that benefits from the trust were an individual, if the protector consents in a signed record to the exercise of the power.
3. A protector for an animal has the rights under this part 9 of a qualified beneficiary.
4. Notwithstanding any other provision of this part 9, if a first trust is an animal trust, in an exercise of the decanting power, the second trust must provide that trust property may be applied only to its intended purpose for the period the first trust benefitted the animal.

History. Source: L. 2016: Entire part added,(SB 16-085), ch. 228, p. 888, § 1, effective August 10.

COMMENT

Section 408 of the Uniform Trust Code permits a trust to be created for one or more animals who are alive during the settlor's lifetime. “Animal” is not defined in the Uniform Trust Code and thus is not defined in this act. It should be construed in its common usage as referring to a multicell living organism that feeds on organic matter, and that typically is motile at some point in its life and has sensory organs. It thus includes, for example, mammals, birds, reptiles, fish and insects. In this section, the term “animal” should be construed to mean nonhuman animals. The term includes, without limitation, pets and domesticated animals.

The Uniform Trust Code provides that an animal trust may be enforced by a person appointed in the terms of the trust or, if no such person is appointed, by a person appointed by the court. Subsection (1)(b) incorporates that concept in the definition of “protector.”

One impediment to applying decanting to an animal trust is that animal trusts often do not technically have a beneficiary because the definition of “beneficiary” is restricted to a person who has a particular interest in the trust. The definition of the term “person” does not include a nonhuman animal. This impediment is resolved by treating the animal as if it were a person so that the animal trust does have a beneficiary for purposes of the decanting power. The extent of the decanting power would then depend upon the amount of discretion that the authorized fiduciary has to make distributions for the animal and to any other person. If the trustee has expanded discretion, then the decanting power could be exercised under Section 15-16-911 . If the trustee only has limited discretion to make distributions to the animal, then the decanting power can be exercised under Section 15-16-912 .

The second impediment to exercising a decanting power over an animal trust is identifying a person who can receive notice of the decanting on behalf of the animal and bring a court action with respect to the decanting if appropriate. This impediment is resolved because an animal trust will usually have a person who is designated to enforce the trust on behalf of the animal. Section 408(b) of the Uniform Trust Code provides that such a trust may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. Thus if an animal trust did not designate a person to enforce the trust on behalf of the animal, the trustee could request that the court appoint such a person and then proceed with any exercise of the decanting power.

Section 408 of the Uniform Trust Code provides that the property of an animal trust may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Although Section 15-16-923 permits the decanting of an animal trust, it mirrors the requirement of the Uniform Trust Code that the property of the animal trust may be applied only to its intended use for the period of time the first trust was intended to benefit the animals (usually the lives of the animals). Therefore, the authorized fiduciary cannot, by decanting, reduce the value of the animal trust; such a power is reserved only to the court. Further, the authorized fiduciary cannot divert assets of the animal trust to other beneficiaries of the trust.

Assume that Trust was established for the support of Double Trouble, a husky, after the death of Double Trouble's human companion. Trust directs that the Trust shall continue to maintain Double Trouble in her Alaskan house, which is owned by the Trust, under the care of Joan, a retired musher, and permits distributions of income and principal to maintain the house and for Double Trouble's best interests so long as Double Trouble is living. Upon the death of Double Trouble, Trust is distributed to the Husky Rescue Society, a charitable organization. Double Trouble is aging and the veterinarian advises a move to a warmer climate. The assets of the Trust are diminishing, and may not be sufficient to maintain the Alaskan house and pay for Double Trouble's care. Joan is aging too, and would prefer to care for Double Trouble in Joan's house in Hawaii. The authorized trustee may, with the consent of the protector, modify Trust to permit the sale of the Alaskan house and to permit Joan to care for Double Trouble in her Hawaii home. Notice of the decanting must be provided to the protector, the Husky Rescue Society and to the Attorney General (or other official with enforcement authority over charitable interests). The second trust, however, may not add Joan as a beneficiary because such a modification would not be permitted under Section 15-16-911 . Nor may the decanting provide that one year after the move to Hawaii, one-half of the principal will be distributed to the Husky Rescue Society, because Section 15-16-923(4) requires that the trust property be applied only for its intended purpose (the care of Double Trouble) for the period the first trust benefitted the animal (the life of Double Trouble).

COLORADO COMMENT

The Colorado version of this section changes the definition of a “protector” for purposes of this section to be consistent with C.R.S. § 15-11-901(3)(d) , providing a broader list of potential parties who may be identified to enforce the trust on behalf of the animal.