In the state of Tennessee, a person of sound mind can grant another individual a power of attorney (POA) by executing a power of attorney document. This legal document does not have to be recorded with the court or at a county records office to have legal effect. The document takes effect once it has been executed.
Required Components of POA
Tennessee state law has no mandated standard form for a power of attorney document. The person who gives another party power of attorney is called the principal; the person who accepts the power of attorney is called the agent or attorney-in-fact.
The POA must contain the signatures of the principal and the agent. Tennessee law provides that two witnesses must sign the document stating that they witnessed the principal give the agent the POA. Alternatively, a notary public may notarize the POA.
Tennessee Durable Power of Attorney
Durable power of attorney is a document by which the principal designates another party as their agent or attorney-in-fact. The writing must contain the words, “This power of attorney shall not be affected by subsequent disability or incapacity of the principal” or “This power of attorney shall become effective upon the disability or incapacity of the principal.”
Alternatively, the POA can contain similar words showing that the principal intended to give the agent authority even if the principal later came to be disabled or incapacitated. “Incapacitated” here means the principal could no longer care for one’s affairs, like make necessary decisions regarding financial, legal and property matters.
Powers of an Agent
A general durable power of attorney does not give an agent authority to exercise power over the principal’s health care, unless the POA specifically designates the agent as having a durable power of attorney for health care.
If an individual has not executed a POA for health care, a spouse or relative may make medical decisions for them. The hierarchy of authority, in order, is:
- Patient’s spouse, unless the parties are legally separated.
- Patient’s adult child.
- Patient’s parent.
- Patient’s adult sibling.
- Another adult relative of the patient.
- Friend who has demonstrated special care and concern for the patient.
A general durable power of attorney gives an agent 23 powers, which include:
- Signing a document or performing an act in the principal’s name.
- Receiving or disbursing funds from the principal’s checking, savings or other
accounts. Writing and signing checks on behalf of the principal. Opening or closing the principal’s accounts. Withdrawing the principal’s funds. Buying, selling or leasing the principal’s real estate or personal property through instruments such as deeds. Filing the principal’s federal or state income tax returns. Purchasing or canceling the principal’s insurance policies, including medical and life insurance policies. Providing for the support and protection of the principal’s spouse and minor children by actions such as paying for food, housing and medical care. Contracting for, or employing agents, including accountants and attorneys, to assist with the principal’s affairs.
* Borrowing money on behalf of the principal for any of the purposes provided for under durable power of attorney.
Health Care Power of Attorney
A durable power of attorney for health care authorizes an agent to make health care decisions for the principal. Health care is defined as care or treatment regarding an individual’s physical or mental condition, such as medical care.
Health care decisions are defined as decisions relating to consent, refusal of consent or withdrawal of consent to health care.
An agent with durable power of attorney for health care can make decisions on the principal's behalf regarding:
- Organ donation.
- Authorization of autopsy of the principal.
- Directing disposition of the principal’s remains.
- Withholding or withdrawing health care to permit the principal to die naturally, with only the administration of palliative care, which are measures to maintain the patient’s comfort, such as the use of sedatives and hydration.
Powers of a Fiduciary Appointed by the Court
If a court appoints a conservator to manage the affairs of the principal’s estate, or a guardian of the estate or other fiduciary with the duty to act on behalf of the principal, the fiduciary does not have the power to revoke or amend a durable power of attorney for health care. The fiduciary cannot replace the agent designated in a POA for health care.
Revoking a Medical Power of Attorney
The principal can revoke a durable power of attorney for health care by:
- Notifying the agent orally or in writing.
- Notifying the health care provider orally or in writing.
- Executing a new durable power of attorney for health care.
If the principal notifies the health care provider of the revocation orally or in writing, the health care provider must make the notification part of the principal’s medical records. The health care provider must make a reasonable effort to notify the agent of the revocation.
Conditions That End a POA
Conditions that end a power of attorney include:
- Term of the POA document that states that it terminates upon a certain date or event.
- Death of the principal or agent, except the death of the agent does not end the power of attorney granted to other agents if the principal has awarded the POA to other agents.
- Execution of a new, valid POA.
- Revocation by the principal.
- POA has a limited purpose and this purpose has been accomplished.
- Agent becomes incapacitated, and the POA does not name a successor agent.
A principal, instrument or court’s revocation of POA does not invalidate exercises of authority by the agent that occurred prior to the revocation except if the agent acted wrongfully, such as committing fraud while exercising the POA or exceeding the authority given to them in the POA document.
As to a termination of POA for care of a minor child, the POA for this purpose may be terminated by a document signed in writing by a parent with legal custody. Such a POA may also be terminated by a court that appoints a legal guardian or legal custodian for the child.
Drafting a POA in Tennessee
A competent adult can draft a POA themselves or hire a person with legal expertise to draft it for them. An attorney with a background in estate planning is a good choice for a general power of attorney.
A person who wants to confer a limited power of attorney to accomplish a specific purpose, like the management of a business, should seek legal advice from an attorney experienced in business or corporate law.
- Justia.com: Tennessee Code Section 34-6-109 Attorney in Fact, Powers
- Justia.com: Tennessee Code Section 34-6-102 Durable Power of Attorney Defined
- Justia.com: Tennessee Code Section 34-6-306 Termination of Power of Attorney
- Legal Beagle: How to Get Power of Attorney in Tennessee
- Legal Beagle: How to Give Someone Power of Attorney
- Justia.com: Tennessee Code Section 34-6-201 Durable Power of Attorney for Health Care, Part Definitions
- Justia.com: Tennessee Code Section 34-6-204 Durable Power of Attorney for Health Care, Attorney in Fact, Powers, Limitations
- Justia.com: Tennessee Code Section 34-6-207 Durable Power of Attorney for Health Care, Revocation
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.