Testamentary Capacity

Testamentary Capacity

I just finished reading John Grisham's Testament. In this 1999 novel, the main theme concerns the question of whether an elderly billionaire was mentally competent when he wrote his Last Will and Testament leaving his entire fortune to an illegitimate daughter while omitting his other six children. The issue of whether a client has the capacity to execute estate planning documents is one that often must be addressed by elder law attorneys.

There are different levels of capacity depending on the type of transaction that is being considered. The degree of capacity required to enter into a business contract, for example, is greater than that required to make a testamentary gift or conveyance. In addressing whether the client has testamentary capacity, the attorney should determine, at a minimum, whether the client understands the extent of his or her estate and knows the natural objects of his or her bounty.

There are complexities inherent in determining capacity and each situation will be different, requiring a different level of assessment. There are various tools that can be used to determine capacity such as legal capacity questionnaires and mini-mental exams. Sessions can be videotaped and recorded as a way of documenting the asessment. For some clients, a brief note in the file regarding the client's understanding could be sufficient.

In all situations, though, some type of assessment will be useful in the event that someone, at some time, questions whether the client was competent and the Will is valid.
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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

A helpful tool for Estate Planning and “Advance Directives”

We often find that clients do not follow through with all aspects of their estate and post-death plan because they are reluctant to address their mortality. On the other hand, if clients do prepare a comprehensive plan, they often express a feeling of relief and satisfaction. The key word is “comprehensive.” What should a person consider when organizing their plan? Here is a partial list:

• Disposition of assets
• Payment of debts
• Funeral arrangements and special requests regarding the type of ceremony
• Anatomical gifts for science
• Anatomical gifts for transplants
• Living will provisions
• Disposition of personal property including gifts of specific items to family members and friends
• Charitable donations
• Tax consequences of gifts and bequests
• A family history or personal memoir

It can be a daunting task to organize all of the above matters. We suggest that you review all of these matters with an experienced estate planner and elder lawyer. We also suggest that you consider the use of The Beneficiary Book which is available in book form or in computer disc form. This book is a supplement to a personal or family estate plan. We buy the books and CDs in bulk and deliver them at our cost to clients. Our clients then add their own data and keep it up to date in the future.

Let us know if you would like to look at The Beneficiary Book. We think you will feel better if you leave the gift of a clear and well-organized plan for your family.


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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

"Homecare" doesn't have to mean nurses.

I recently met with my women's networking group called SeniorRULE. We are Resources Unlimited and Liaisons for Elders. One of the members owns a homecare agency, and she has been in business for about 6.5 years now. Kathy Devlin, founder of "All About Home Care" originally started by providing companion care, which did not include CNA or skilled nursing. She could provide companions to do the cooking and cleaning, grocery shopping, driving, and to simply be there for someone who did not have anyone else. She recently went through the administrative requirements so she could also provide CNAs (Certified Nursing Assistant) in the home, but she continues to staff companions.

Kathy felt it was important to remind us that various services can be provided by a companion, and other services are required to be performed by a CNA. Companions can be much less expensive for the patient, and perhaps one should be considered if you or your loved one needs more attention than you are able to provide. It is typical when people begin using a homecare agency to hear, "I should have done this ages ago!"

If you or your loved one is in need of extra help, and you are not sure where to turn, call us at the Law Offices of Jeremy Howe and we can discuss what services may be available in our area and try to make sure your affairs are in order to make your life and those of your loved ones easier.


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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

Elder Law Attorney Assists Client After Death of Loved One

 Testimonial for Attorney Hilary Carlson

After a Middletown, RI client's father passed away, he sought the assistance of The Law Office of Jeremy Howe, LTD.

Attorney Hilary Carlson handled the details of his father's estate and she later received this note from the client:

"Hilary - The day I met you, I was a mess. I was so upset about my dad and everything that I had to get done, and then you helped me out and I just started to feel better.

Thank you so much."


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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

VLP Attorneys Lauded for Free Legal Advice Seminar at New England Deaf Senior Conference

On April 10, 2010, Kristy J. Garside and Hilary M. Carlson, two volunteer attorneys and both associates of the Law Offices of Jeremy W Howe, LTD in Newport, presented a free program,

The "Reality of Advance Care Planning."  

Over 90 participants attended their presentation at the 3rd Biennial New England Deaf Senior Conference at the Newport Marriott Hotel in Newport RI. 

According to Mary E. Lomastro, writing on behalf of the Rhode Island chapter, "You two are to be commended for a truly informational presentation. The topics were very important to the attendees, and they greatly benefited from the information you provided. Thank you for a remarkable job!"

The program was made possible through coordination by the Rhode Island Bar Association's Elderly Pro Bono Program and the Rhode Island Deaf Senior Citizens organization, and is held twice a year in various locations. The Rhode Island Deaf Senior Citizens organization is a non-profit organization headquartered in Coventry, RI with member meetings twice a month.

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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

What Robert Shapiro Does Not “Get”

Do you remember Robert Shapiro?

He was O. J. Simpson’s lawyer. Whether you like him or his style you have to admit that he is an impressive and imposing trial lawyer. Frankly, during the past few years, I was quite surprised to see him shilling for “LegalZoom” on TV commercials and on the internet. I asked myself: “Why would a world-famous trial lawyer lower himself to try and convince the public that they can avoid legal costs and draft their own trusts, wills and other important documents?”

Recently, I found out from ElderLawAnswers that he was not only the face of LegalZoom, he was the founder. I will leave it to you to make the call as to why he formed the company. There are other companies who try and sell pre-packaged divorces and other legal documents.

On behalf of consumers, I object to the existence of these companies.

My objection is not a personal financial objection. My law firm will get our share of legal business the “old fashioned way”. I object to the notion that lawyers do not have any role in the estate planning process. We regularly untangle legal work that was drafted by attorneys who should know better. We regularly advise clients who want a trust that they do not need one or convince clients that their goals can be better met with documents or a plan they never considered.

There are many options for clients and LegalZoom never engages clients in an educated discussion of those options. I submit that it is deceptive to declare that by filling out a “cookie-cutter” form that people can draft a legally acceptable and correct set of documents to meet their specific needs. Estate planning is not that simple a task. Class action lawsuits have been filed against LegalZoom for engaging in deceptive practices and for practicing law without a license. There are other lawsuits nationally against Shapiro and LegalZoom.


Modern estate planning involves constant attention to federal and state tax law (income and estate); Medicaid law and procedures; Veteran’s benefits; social security law; elder abuse (physical, emotional and economic) and manipulation; advance directive options; resources for elders losing capacity; resources and programs for remaining at home; care-giver contracts; family dispute resolution and mediation options; funeral and burial arrangements; and Probate Court decedent’s estate, guardianship and conservatorship law and practice.

Estate planning is an ongoing process which requires regular reviews whenever life circumstances change. Shapiro demeans himself and his profession by selling pre-packaged documents and forms.

Caveat Emptor.

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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

A surviving spouse can keep the Veteran's Disability Pension payment in the month of their death.

I found the following blurb on the U.S. Senate Committee on Veteran's Affairs website, http://veterans.senate.gov/issues-benefits.cfm

I thought it would be worth noting for those that may have been affected before the administration caught up with the rule changes. I am an accredited attorney with the VA Administration and our office provides information to our clients regarding Veterans Benefits that may be available which relate to funding long term care.

If you, your parent or your spouse (even if you are a widow) is a Veteran, then call us today for more information. 401-841-5700
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Surviving Spousal Benefits—Righting a Wrong:

In November, 2008, Chairman Akaka received a letter from the widow of a veteran regarding the Treasury Department’s seizure of funds from her bank account to reimburse the government for the VA compensation check issued to her late husband the month that he died. The widow had not been notified in advance of this action. Unaware that the funds were no longer in her account, she wrote several checks to honor obligations that she unknowingly could no longer cover. Her bank responded with financial penalties.

The Treasury Department was acting on flawed instructions from VA. Under a 1996 law, surviving spouses of a veteran may, in fact, keep a VA disability or pension check for the month in which the veteran dies. After Committee staff intervention, the widow was reimbursed for the amount at issue and the bank agreed to drop the overdraft fees.

Further examination revealed that the widow’s experience was not an isolated case of poor administration, but rather the result of VA’s failure to update its computer systems and policy in this area. Many other widows or widowers of service-connected veterans over the preceding twelve years may have experienced a similar hardship after suffering the loss of a spouse.
On December 5, 2008, Chairman Akaka contacted former VA Secretary Peake to alert him to the Committee staff findings and to request that he take corrective measures. In his December 11, 2008, response then-Secretary Peake agreed to remedy this error.

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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.