Face Off

To follow up a previous line of thought from last year regarding referring to ourselves as 'guardians' of our dogs and 'adopting' instead of selling our puppies. This article was sent to me by my mom and I have simply copied it. If you know the source please let me know and I'll credit it.

Pet Owner vs. Pet Guardian
Author Unknown

Adding the word "guardian" to a state or municipal law, especially when the law allows "guardian" and "owner" to be used interchangeably, sounds innocent enough. After all, many animal owners already treat their animals more like members of the family than as property, and being called guardians rather than owners is not likely to make them more responsive to the animals' needs.

Some activists also argue that the change in language will reduce the incidence of animal abuse, by making owners feel more responsible for their animals. This might be wishful thinking, however, considering that child abuse continues at an alarming rate despite the unquestioned responsibility parents and guardians have for the welfare of their children.

Strong criticism of the policy shift has emerged from seemingly unlikely sources. In May 2003, for example, the Executive Board of the American Veterinary Medical Association (AVMA) approved a position statement opposing guardianship language.

The official AVMA position reads:

Ownership vs. Guardianship

"The American Veterinary Medical Association promotes the optimal health and well-being of animals. Further, the AVMA recognizes the role of responsible owners in providing for their animals' care. Any change in terminology describing the relationship between animals and owners does not strengthen this relationship and may, in fact, diminish it. Such changes in terminology may decrease the ability of veterinarians to provide services and, ultimately, result in animal suffering.

The Board of Directors of the American Kennel Club (AKC) adopted a similar resolution in 2003, stating in part that, the "AKC believes that the term guardian may in fact reduce the legal status and value of dogs and thereby restrict the rights of owners, veterinarians, and governmentagencies to protect and care for dogs. It may also subject them to frivolous and expensive litigation. The term guardian does nothing to promote more responsible treatment of dogs."

Similar opposition has been voiced by groups including the Cat Fancier's Association, the Pet Industry Joint Advisory Council, the National Animal Interest Alliance, the Responsible Pet Owners Alliance, and the American Veterinary Medical Law Association. Equine organizations appear to have remained silent to this point.

"What's the problem?" you might reasonably ask at this point. Anything that makes people more conscious of the fact that animals are not a disposable commodity and should not be abused must be a good thing. What could go wrong? So far, nothing.

Laws in Rhode Island and in the cities that have adopted guardianship language appear to allow "owner" and "guardian" to be used interchangeably, with the same rights and obligations attached to each. None of the revised laws have been in force long enough to know for certain whether the change is cosmetic or substantive. There is no doubt, however, that such mixed usage fails to recognize that owner and guardian have legally distinct, and very different, meanings.

The owner of property, according to Black's Law Dictionary and an enormous body of legal precedent, has the right to "enjoy" the property, and to "do with it as he pleases, even to spoil or destroy it, as far as the law permits." It is this bundle of rights, and the potential for harm, that make necessary laws that recognize the unique status of animals and that protect them from cruelty, abuse, and neglect.

A guardian, on the other hand, is a horse of an entirely different color. Strictly speaking, again according to Black's Law Dictionary and the courts, a guardian is a person who has both the legal right and legal responsibility to take care of another person who is incapable of taking care of himself or herself. Adults who are incompetent for some reason and minor children are examples of individuals who require guardians. The subject of a guardian's care is the guardian's "ward."

A guardian also might have a fiduciary duty to the ward, which simply means a legal responsibility to act in the ward's best interest, even at the expense of the guardian's interests. Guardians and owners, in other words, are fundamentally different, mutually exclusive entities. Owners own property, guardians protect the rights of incompetent individuals, and a law that uses the terms interchangeably is a legal contradiction.

The potential ramifications of this clear legal distinction between "owner" and "guardian" are enormous. Assume, for a moment, that "guardian" is not merely another name for "owner," and that a person actually can become the guardian of an animal in the strict legal sense. Implicit in this assumption must be the fact that the object of the guardian's care and responsibility, an animal, now becomes the guardian's ward, with associated legal rights that must be protected.

Any meaningful change in status from an animal owner to an animal guardian must, at some point, also encompass a change in the status of the animal from property to ward. Under the current state of the law, which recognizes only property and persons, the animal thus would assume the same legal rights as a child or incompetent adult.

If an animal is someone's property, the animal can be bought and sold, a simple legal transaction that results in a change of owner. If, on the other hand, the animal has the legal status of a ward with rights that must be protected, it is difficult to imagine a situation in which the animal legally could be sold (or even given away) by its guardian. Animal adoptions also would become far more complicated and expensive.

Under current law it is possible, in some situations, to justify the euthanasia of an animal for economic reasons, such as an illness requiring lengthy and expensive veterinary care. Euthanasia in this circumstance no longer would be an option if the caretaker is a guardian andthe animal enjoys the legal status of a ward.

It also is easy to imagine an argument that it is not in the best interest of a Thoroughbred to be raced as a 2-year-old, or at all, or that dogs should not be exhibited at shows or used in field trial competitions, or that zoos violate the rights of their inhabitants. Commercial animal breeding in any form certainly would violate the legal rights of an animal ward, as would human consumption of animals for food and the use of animals in medical research.

These scenarios might sound quite far-fetched, and the possible outcomes might not be obvious consequences of the seemingly innocuous substitution of one word for another in a few laws. Nevertheless, a dramatic restructuring of the human-animal relationship is the stated agenda of some animal rights activists. Whatever your opinion on the status of animals, your support of, or opposition to, the guardian movement should be an informed choice, based on fact rather than supposition.

Courts frequently use the phrase "slippery slope" to describe a course of action that, once it is started, cannot easily be halted. Depending on how lawmakers and courts eventually interpret the true meaning of an animal guardian, the movement toward animal guardianship might be such a slope.