Instrument: Durable Power of Attorney (DPOA)

What is it for?
A DPOA allows an adult (the “principal”) to grant another (the “attorney in fact”) the authority to make decisions regarding the principal’s property and personal affairs on the principal’s behalf.

What does it do?
The DPOA gives the attorney in fact authority to make decisions for the principal about the principal’s property, including receiving or making payments on the principal’s behalf, creating accounts or trusts in the principal’s name, acquiring or selling the principal’s property, and investing or borrowing. Tenn. Code Ann. § 34-6-109.

The attorney in fact also is authorized to request, receive and review any information regarding the principal’s personal affairs or the principal’s physical or mental health, including legal, medical and hospital records. Tenn. Code Ann. § 34-6-109(21). However, a DPOA generally does not give the attorney in fact authority to make decisions about the principal’s medical treatments or health care, except as incidental to decisions regarding property and finances. Tenn. Code Ann. § 34-6-108(c)(8).

Decisions made by the attorney in fact have the same binding effect on the principal as if the principal had made them. Tenn. Code Ann. § 34-6-103. In doing so, the attorney in fact must act as a fiduciary, which means that the attorney in fact must act in good faith and in the principal’s interest. Tenn. Code Ann. § 34-6-108.

How does one make it?
A DPOA must be signed and in writing. For it to be considered “durable,” which means that the attorney in fact’s authority continues despite the principal’s incapacity, the DPOA 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,” or similar words. Tenn. Code Ann. § 34-6-102.

When does it come into effect?
The DPOA may state that the attorney in fact’s authority begins immediately when the DPOA is executed, or upon a future date or occurrence, such as the principal’s disability incapacity. Even if the attorney in fact’s authority becomes effective only in the future, unless the DPOA states otherwise, the attorney in fact is immediately authorized to access the principal’s medical records, physicians, other medical personnel, to discuss the principal’s health situation, and to otherwise serve as the principal’s personal representative under HIPAA for the limited purpose of determining whether the principal is incapacitated. Tenn. Code Ann. § 34-6-111.

How long does it last?
A DPOA generally lasts until the principal dies or revokes it. Tenn. Code Ann. § 34-6-105(a).

How does one end it?
Presumably, the principal may revoke a DPOA by destroying it. For a principal’s revocation of a DPOA to be effective, the revocation must be communicated to the attorney in fact. Tenn. Code Ann. § 34-6-105. The subsequent appointment of a guardian does not automatically end a DPOA, although the appointed guardian has the same ability as the principal to end the DPOA. Tenn. Code Ann. § 34-6-104.

What does an example look like?
Tennessee does not have a statutory DPOA form.

What else should one know?
Tennessee’s DPOA is not based on the Uniform Power of Attorney Act.

Last updated June 2022

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