Finance
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
Education
No information available at this time.
Health
Instrument: Durable Power of Attorney for Health Care (DPOAHC)
What is it for?
A durable power of attorney for health care (DPOAHC) allows an adult (the “principal”) to appoint another (the “agent”), as well as an alternate agent, to make health care decisions for the principal either when the principal lacks capacity to do so. Tenn. Code Ann. § 34-6-201.
The DPOAHC is one kind of advance directive. Tenn. Code Ann. § 68-11-1802(a)(1). An advance directive need not appoint an agent. For example, a living will, another kind of advance directive, may provide a non-binding individual instruction or a written statement about the principal’s health care preferences.
What does it do?
A DPOAHC gives the agent authority either to consent, deny consent, or withdraw consent to any care, treatment, service or procedure to maintain, diagnose, treat, or otherwise affect the principal’s physical or mental condition when the principal lacks capacity to do so. Tenn. Code Ann. § 68-11-1802. An agent may not decide to withhold or withdraw life-sustaining treatment unless the DPOAHC expressly states that the agent may do so. Tenn. Code Ann. § 32-11-103(5).
“Capacity” to make health care decisions means the principal’s ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health care decision. Tenn. Code Ann. § 68-11-1802(3). A DPOAHC does not affect the right of an individual to make health care decisions while having capacity to do so. Tenn. Code Ann. § 68-11-1812(1).
An agent must make a health care decision in accordance with the principal’s individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent must make the decision in accordance with the agent’s determination of the principal’s best interest, which the agent must determine in consideration of the principal’s known personal values. Tenn. Code Ann. § 68-11-1803(e).
Health care providers generally must accept the agent’s health care decisions on behalf of the principal as if they principal had made them. Tenn. Code Ann. § 68-11-1803(f).
How does one make it?
The DPOAHC must be in writing, signed by the principal, and either be notarized or witnessed by two adults other than the agent, at least one of whom must attest they are not related to the principal by blood, marriage, or adoption and do not have an interest in the principal’s estate. Tenn. Code Ann. § 68-11-1803(b).
When does it come into effect?
The agent’s authority generally becomes effective when a physician who has been designated by either the principal, the agent, or another surrogate, to have primary responsibility for the principal’s health care determines that the principal lacks capacity. Tenn. Code Ann. § 68-11-1803(d).
How long does it last?
The agent’s authority ceases when the principal is determined by a designated physician to have recovered capacity. Tenn. Code Ann. § 68-11-1804.
How does one end it?
A principal may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider. Tenn. Code Ann. §§ 68-11-1804(a) & 34-6-207(a). Also, a subsequently executed DPOAHC revokes a previously executed advance directive to the extent that the two conflict. Tenn. Code Ann. § 68-11-1804(d).
What does an example look like?
Tennessee provides a sample advance directive form, which includes a DPOAHC, here.
What else should one know?
No health care provider or institution, and no health care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, or nonprofit hospital plan, can require the issuance, execution or revocation of a DPOAHC or other advance directive as a condition for being insured for, or receiving health care. Tenn. Code Ann. § 68-11-1803(i).
Last updated June 2022
General
No information available at this time.