Can a durable power of attorney for healthcare be revoked under Tennessee law?

A durable power of attorney for healthcare is an important document that allows you to decide who can make certain medical decisions for you should you become incapacitated and unable to make such decisions.  Tennessee law provides that a durable power of attorney for healthcare can be revoked under T.C.A. § 34-6-207.  This statute provides as follows:

(a) The principal may, after executing a durable power of attorney for health care, do any of the following:

(1) 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

(2) Revoke the authority granted to the attorney in fact to make health care decisions by notifying the health care provider orally or in writing.

(b) If the principal notifies the 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 shall make the notification a part of the principal's medical records and shall make a reasonable effort to notify the attorney in fact of the revocation.

As a result there is a clear Tennessee statute that allows the revocation of a durable power of attorney for healthcare in a relatively easy fashion.  It can be done orally or in writing.  It is almost always better that the revocation be in writing so there is clear evidence of the revocation and there is no question about the decision.

Is an adopted child considered the child of a deceased person when that individual dies without a will (intestate) under Tennessee law?

T.C.A. § 31-2-105 discusses an adopted child’s legal status under Tennessee law when their adopted parent dies without a will (intestate).  Specifically, subsection (a) provides as follows:

(a) If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent;

As a result, under Tennessee law an adopted child is considered to be the child of an adopting parent, not the natural parent.  One exception is when the child is adopted by a spouse of a natural parent, then the child is still considered to be the child of that specific natural parent (not the other natural parent).

Additionally, under T.C.A. § 31-1-101(6) an adopted child is considered to be "issue" from the deceased just like a natural born child.  This is the statute that defines the term “issue” which is used throughout the intestate succession statutes and it states as follows:

(6) ”Issue” of a person means all the person's lineal descendants, adopted as well as natural born, of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this title;

The definition of “child” under the statute also identifies an adopted child as having an equal st...

Tennessee law requires an individual to survive a decedent by 120 hours in order to inherit from them under a will or intestate succession.

Tennessee law provides in T.C.A. § 31-3-120 that an individual must survive a decedent by 120 hours in order to recover from their estate.  Specifically, recovery is not allowed if there is a failure to survive by 120 hours under the theories of homestead allowance, years support allowance, exempt property, elective share and intestate succession.  As a result, when two individuals experience simultaneous death or die within a 120 hour period, the individual who failed to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of intestate succession.  T.C.A. § 31-3-120(a) provides as follows:

(a) An individual who fails to survive the decedent by one hundred twenty (120) hours is deemed to have predeceased the decedent for purposes of the homestead allowance, year's support allowance, exempt property, elective share and intestate succession, and the decedent's heirs are determined accordingly.

Additionally, even if there is a will in place, an individual must survive the testator by 120 hours otherwise they are deemed to have predeceased the testator and will not inherit under the will.  This is true unless the will has specific explicit language dealing with simultaneous deaths or deaths in a common disaster and provides a specific stated period of time the person must survive to take under the will.  Specifically, T.C.A. § 31-3-120(b) provides as follows:

(b) A devisee who fails to survive the testator by one hundred twenty (120) hours is deemed to have predeceased the testator, unless the will of the decedent contains language dealing explicitly with simultaneous deaths or deaths in a common disaster or requiring that the devisee survive by a stated period of time in order to take under the will.

Additionally, this statute provides that it must be proved by "clear and convincing evidence" that an individual survived the decedent by 120 hours.  This is a high standard under Tennessee law.  Specifically, T.C.A. § 31-3-120(c)...

What is a durable power of attorney for healthcare under Tennessee law?

A durable power of attorney for healthcare is a document that provides powers to an “attorney-in-fact” to make healthcare decisions for the person executing the document (called the “principal”) if they become incapacitated.  There is not requirement for the “attorney-in-fact” to be an attorney; rather he or she can be a spouse, child or anyone the principal desires.  This document is mainly used to provide powers to a specific individual for the purpose of making healthcare decisions for the principal in case that individual is no longer able to make those decisions.

In Tennessee there are specific requirements for a durable power of attorney for healthcare to be effective.  They are found, in part, in T.C.A. § 34-6-203(a) which provides as follows:

(a) 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:

(1) The durable power of attorney for health care specifically authorizes the attorney in the fact to make health care decisions;

(2) The durable power of attorney for health care contains the date of its execution; and

(3) The durable power of attorney for health care must be in writing and signed by the principal. The durable power of attorney for health care is valid if the principal's signature is either attested by a notary public with no witnesses or witnessed by two (2) witnesses without attestation by a notary public. A witness is a competent adult, who is not the agent, and at least one (1) of whom is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the estate of the principal upon the death of the principal under any will or codicil made by the principal existing at the time of execution of the durable power of attorney for health care or by operation of law then existing. The durable power of attorney for health care shall contain an attestation clause that attests to the witnesses' compliance with the requirements of this subdivision (a)(3). It is the intent of the general assembly that this subdivision (a)(3) have retroactive application.

The first requirement is the document must actually authorize the attorney-in-fact to make healthcare decisions.  The second requirement is the durable power of attorney for healthcare must contain the date it is executed.  The third requirement is the document must be in writing and signed by the principal.  The principal’s signature must either be attested by a notary public with no witnesses, or it must be witnessed by two witnesses without an attestation by a notary public. 

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Who can object to a creditor claim filed against a probate estate in Tennessee?

T.C.A. § 30-2-314 provides that certain individuals can file objections to a claim filed by creditors against a Tennessee probate estate.  The personal representative of the estate, a creditor, heir, beneficiary or anyone else who has an interest in the estate can file an objection to a creditor claim.  This allows the contesting party to argue to the court that a specific creditor claim against the estate should not be allowed.  Specifically, this statute provides that:

the personal representative, or any party interested in the estate either as creditor, distributee, heir or otherwise, may except to the claim by filing written exceptions in triplicate with the clerk of the court in which the estate is being administered

The exceptions to the claim must be filed within thirty days after the “expiration of four (4) months from the date of the notice to creditors given as provided in § 30-2-306(b).”  If a creditor claim is filed against the probate estate after the four month time period allowed in T.C.A. § 30-2-306, then the notice of exception to that claim can be filed within thirty days from the time the personal representative receives notice from the clerk of the filing of the claim.

The exception to a creditor's claim must include a reasonably detailed explanation of the basis for which the person is making the exception.  T.C.A. §30-2-315 provides greater detail about the procedures for how the court determines whether a claim should stand or whether the exception should be upheld.  If you have a creditor claim or desire to object to a creditor claim, it is very important to have a Tennessee probate attorney assist with this process in order to properly comply with these statutes.

Can an individual execute a "living will" under Tennessee law?

Tennessee law allows the execution of a "living will" according to the "Tennessee Right to Natural Death Act" which was passed in 1985.  The living will allows you to make the decision to not be kept alive by artificial means if you have a terminal condition and there is no expectation of recovery.   T.C.A. § 32-11-102 discusses the legislative intent in allowing living wills under Tennessee law.  This statute provides as follows:

(a) The general assembly declares it to be the law of the state of Tennessee that every person has the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person's own medical care, specifically including palliative care and the use of extraordinary procedures and treatment. The general assembly further declares that it is in the public interest to facilitate recovery of organs and/or tissues for transplantation and to provide mechanisms for individuals to express their desire to donate their organs and/or tissues.

(b) The general assembly does further empower the exercise of this right by written declaration, called a “living will,” as provided in this chapter.

T.C.A. § 32-11-105 provides a form for a living will under Tennessee law.  This statute provides a form that is acceptable under Tennessee law for a living will.

Additionally, T.C.A. § 32-11-104 provides specific requirements for the execution of a living will.  An executed living will can be signed by "any competent adult person" under T.C.A. § 32-11-104.  The declaration must be in writing and signed by the principal and is valid if it is attested by a notary public with no witnesses or witnessed by two witnesses without an attestation of a notary public.  If the witness method is used then at least one of the witnesses must not be related to the individual executing the living will document.  Continue Reading  

Top three reasons why you need a will in Tennessee.

Reason Number Three - To try to reduce the likelihood for disagreements and disputes among family members, friends and potential beneficiaries/heirs after your death.

An individual's death is an extremely stressful, emotional, and difficult time for family members and friends of the deceased.  There are often underlying relationship problems of various kinds that exist among family members and friends of the deceased.  Any pre-existing problems are often exacerbated and even made worse by the stress and difficulty of dealing with the death of a loved one. 

A properly drafted and executed will in Tennessee gives you the best opportunity to clearly lay out your intentions to avoid significant disputes over your assets and money.  Too many deaths result in family members fighting.  These disputes are not just about money but can also be about family heirlooms or other items that have no real material value, but are converted into highly valued emotional objects that family and friends focus on in their disputes.  A will is a great tool you can use to try to reduce or even eliminate these disputes because it leaves less wiggle room for family members and friends to disagree about.

Reason Number Two - To decide who will be the legal guardian for your children after your death.

A very important component of a will is that you can select who you desire to be the guardian of your children.  If you have minor children at the time you die, you can designated in your will who you desire to be the guardian for your children until they reach the age of majority (18 years of age in Tennessee).  This is one of the most important decisions you can ever make because the guardians are the individuals who will raise your children after you are gone.

Do "half-blood" relatives inherit the same as "whole blood" relatives under Tennessee law?

T.C.A. § 31-2-107 provides that "half blood" relatives inherit the same as they would if they were "whole blood" relatives.  T.C.A. § 31-2-107 provides as follows:

Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

As a result, anytime there are “half blood” relatives in an inheritance situation, keep in mind that the fact they are “half blood” has no bearing on whether they can inherit under Tennessee law.

Can a conservatorship be terminated or modified in Tennessee?

A conservatorship can be terminated or modified in Tennessee for several different reasons.  T.C.A. § 34-3-108(a) provides as follows:

(a) A conservator appointed under this chapter may be discharged or have its duties modified if the court determines that the respondent is no longer a disabled person, or that it is in the best interests of the disabled person that the conservatorship be terminated, or that the conservator has failed to perform its duties and obligations in accordance with the law, or that the conservator has failed to act in the disabled person's best interest so as to warrant modification or termination. The disabled person or any interested person on the disabled person's behalf may petition the court at any time for a termination or modification order under this section.

As a result, a conservatorship can be “discharged or have its duties modified” under the following circumstances (a list is always easier to read then a long paragraph):

1) If the respondent is no longer a “disabled person” under the statute.

2) If it is in the best interest of the disabled person. 

3) If the conservator fails to perform their duties and obligations as required under Tennessee law.

4) If the conservator has failed to act in the disabled person’s best interests. 

The statute provides that a disabled person or any other interested person, on the disabled person’s behalf, can petition the court for termination or modification or a conservatorship.  The disabled person can make this petition to the court by any means including oral communication or informal letter.  If this occurs then the court is required to conduct a hearing as required under T.C.A. § 34-3-108(c) which provides as follows:

(c) The court, upon receipt of the petition filed under this section, shall conduct a hearing. At the hearing, the disabled person has all the rights set out in § 34-3-106.

It is importan...

Under Tennessee law a parent can not inherit from an intestate child (child with no will) until all child support owed is paid.

If a parent owes child support, that parent can not inherit from their child in a situation where the child does not have a will.  T.C.A. § 31-2-105(b) provides specific requirements for any parent to inherit from a child when that parent owes child support.  This statute provides as follows:

(b) In no event shall a parent be permitted to inherit through intestate succession until all child support arrearages together with interest thereon at the legal rate of interest computed from the date each payment was due have been paid in full to the parent ordered to receive support or to the parent's estate if deceased.

As a result, a parent must pay all back child support as well as interest from the date each payment was actually due to be made.  If the parent to whom child support is owed is deceased, then the surviving parent must make payments owed to the deceased parent’s estate before the parent can inherit from the child.

In Tennessee can the court modify a will to achieve tax objectives that are beneficial to the deceased testator's estate?

A recent Tennessee law that went into effect on July 1, 2010, allows the court to modify the terms of a will to accomplish tax objectives that benefit the deceased testator's estate (the estate of the person who made the will).  The will can be modified in order to accomplish these tax objectives as long as the changes are not contrary to the testator’s “probable” intention.  T.C.A. § 32-3-114 provides as follows:

To achieve the testator's tax objectives, the court may modify the terms of a will in a manner that is not contrary to the testator's probable intention. The court may provide that the modification has retroactive effect.

This is an important recent change to Tennessee law that could be of great benefit to Tennessee estates under certain circumstances.  If minor changes to the will could allow there to be tax benefits for the estate, then the changes can be made by the court even though the will did not specifically include the tax benefits.  In order to accomplish this, counsel for the estate should file a motion requesting the modification of the will and demonstrating how it complied with the Testator’s intent. 

This statute could save Tennessee estates a significant amount of money in certain circumstances.  This is why it is important to have a Tennessee probate attorney review and handle the probate of an estate in Tennessee in order to determine if this statute (and others) could apply to reduce the tax liability of the estate.

In Tennessee when an individual dies without a will (intestate) and there is no surviving spouse, how is the property distributed?

If an individual dies without a will (intestate) in Tennessee, T.C.A. § 31-2-104 governs how the estate of the deceased is split up among the heirs.  The Tennessee legislature has set up a statutory structure for the distribution of an estate for someone who dies without a will.

T.C.A. § 31-2-104(b) provides as follows:

(b) The part of the intestate estate not passing to the surviving spouse under subsection (a) or the entire intestate estate if there is no surviving spouse, passes as follows:

(1) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;

(2) If there is no surviving issue, to the decedent's parent or parents equally;

(3) If there is no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother and sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take by representation; or

(4) If there is no surviving issue, parent, or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there is no surviving grandparent or issue of grandparent on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.

T.C.A. § 31-2-104(a) (the preceding section in this statute) discusses how property is distributed when there is a surviving spouse.  Subsection (b) deals with the situation where there is no surviving spouse.  The order of priority based on the above statute (when there is no surviving spouse) is basically as follows:

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