Power of Attorney for Health Care - Durable Power of Attorney for Health Care
Power of Attorney and Health Care - General - Tennessee
A "durable power of attorney for health care" is a durable power of attorney to the extent that it authorizes an attorney in fact to make health care decisions for the principal.
"Health care" is any care, treatment, service or procedure to maintain, diagnose or treat an individual's physical or mental condition, and includes medical care as defined in § 32-11-103(5).
Requirements (§ 34-6-203)
An attorney in fact under a durable power of attorney for health care may not make health care decisions unless all of the following requirements are satisfied The durable power of attorney for health care specifically authorizes the attorney in the fact to make health care decisions; The durable power of attorney for health care contains the date of its execution; and The durable power of attorney for health care is signed and acknowledged before a notary public by the principal and is signed by at least two (2) witnesses who witnessed the signing of the instrument by the principal. Each witness must make a statutorily required declaration that: the principal is personally known to the witness; the principal signed this durable power of attorney in the witness's presence; the principal appeared to be of sound mind and under no duress, fraud or undue influence; the witness is not the person appointed as attorney in fact by this document;the witness is not a health care provider, an employee of a health care provider, the operator of a health care institution or an employee of an operator of a health care institution; the witness is not related to the principal by blood, marriage, or adoption; the witness does not presently have a claim against any portion of the estate of the principal upon the principal's death; and that the witness is not entitled to any part of the estate of the principal upon the death of the principal under a will or codicil thereto now existing, or by operation of law. Neither the treating health care provider nor an employee of the treating health care provider, nor an operator of a health care institution nor an employee of an operator of a health care institution may be designated as the attorney in fact to make health care decisions under a durable power of attorney for health care.
A health care provider or employee of a health care provider may not act as an attorney in fact to make health care decisions if the health care provider becomes the principal's treating health care provider.
A conservator may not be designated as the attorney in fact to make health care decisions under a durable power of attorney for health care where the conservatee has the power to execute legal documents, unless: the power of attorney is otherwise valid; the conservatee is represented by legal counsel; and the attorney representing the conservatee signs a certificate stating in substance: I am an attorney authorized to practice law in the state where this power of attorney was executed, and the principal was my client at the time this power of attorney was executed. I have advised my client concerning my client's rights in connection with this power of attorney and the applicable law, and the consequences of signing or not signing this power of attorney, and my client, after being so advised, has executed this durable power of attorney for health care." The following may not be a witness: a health care provider; an employee of a health care provider; the person named as attorney in fact; the operator of a health care institution; or an employee of a health care institution.
At least one (1) of the persons used as a witness must be a person who is not one (1) of the following: a relative of the principal by blood, marriage or adoption; or a person who would be entitled to any portion of the estate of the principal upon the principal's death under any will or codicil thereto of the principal existing at the time of execution of the durable power of attorney or by operation of law then existing.
An employee of the treating health care provider or an employee of an operator of a health care institution may be designated as the attorney in fact to make health care decisions under a durable power of attorney for health care if the employee so designated is a relative of the principal by blood, marriage or adoption.
Powers and Limitations (§ 34-6-204)
Unless the durable power of attorney for health care provides otherwise, or unless a court finds that the attorney in fact is acting on behalf of the principal in bad faith, the attorney in fact designated in such durable power of attorney who is known to the health care provider to be available and willing to make health care decisions has priority over any other person to act for the principal in all matters of health care decisions.
Warning Statement (§ 34-6-205)
If a person other than the principal prepares a durable power of attorney for health care for the principal, the document must contain the statutory warning statement (§ 34-6-205). The failure to include the warning statement in a durable power of attorney for health care does not affect the validity of the document:
Revocation (§ 34-6-207)
A principal may revoke a durable power of attorney for health care by doing any of the following: revoke the appointment of the attorney in fact under the durable power of attorney for health care by notifying the attorney in fact orally or in writing; or revoke the authority granted to the attorney in fact to make health care decisions by notifying the health care provider orally or in writing. If a principal notifies a health care provider orally or in writing that the authority granted to the attorney in fact to make health care decisions is revoked, the health care provider must make the notification a part of the principal's medical records and must make a reasonable effort to notify the attorney in fact of the revocation. It is presumed that the principal has the capacity to revoke a durable power of attorney for health care. This presumption is a presumption affecting the burden of proof. Unless it provides otherwise, a valid durable power of attorney for health care revokes any prior durable power of attorney for health care.
Unless the durable power of attorney for health care expressly provides otherwise, the dissolution or annulment of the principal's marriage revokes any designation of the former spouse as an attorney in fact to make health care decisions for the principal.
If authority granted by a durable power of attorney for health care is revoked, a person is not subject to criminal prosecution or civil liability for acting in good faith reliance upon the durable power of attorney unless the person has actual knowledge of the revocation. The authority of an attorney in fact acting under a durable power of attorney for health care may be terminated or revoked only pursuant to statute and is not be affected by the existence of a living will executed by the principal.
