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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.
In the document the principal can make specific decisions on what authority to grant to the “attorney in fact”. The “attorney in fact” can be authorized or not authorized to make decisions about organ donation, to authorize an autopsy if necessary or to make a decision on cremation of the body (among other decisions). It is best if an attorney is involved in the drafting and execution of the durable power of attorney for healthcare document to make sure it covers the things you desire and is executed properly under Tennessee law.
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