Powers of Attorney
If you become incapacitated due to accident or illness, you would be well-served to have already appointed someone trustworthy to act and make decisions on your behalf during the time of your incapacity. Someone will need to have the authority to handle your financial and legal affairs, and someone will need to have the authority to make health care decisions for you.
For Financial and Legal Matters
A Durable General Power of Attorney is effective from the moment it is signed and gives the person you designate very broad powers to handle your financial and legal affairs. It remains effective to allow that person to act on your behalf after you become incapacitated, incompetent, or are simply unavailable to act for some reason. Exercise great care in granting this type of authority over your assets.
A Springing Power of Attorney only becomes operative after you are determined to lack the capacity to act for yourself. The determination is usually required to be made by two physicians and is thus somewhat more inconvenient.
For Health Care Decisions
A Health Care Power of Attorney, also known as an Advance Directive or Advance Care Plan authorizes someone to make medical decisions for you only when you can no longer do so yourself. It also offers the opportunity for you to state in writing in advance of a medical emergency what your treatment preferences are and what interventions you consider acceptable under various circumstances. This document replaces the previously used “living will.”
Some common questions include:
Why do I need a Power of Attorney?
We have the right to make our own health care decisions. An advance directive (an "advance care plan") communicates our own treatment choices in case we become unable to communicate those choices because of an injury or illness. Every conceivable treatment choice cannot be anticipated and stated in advance. So it is important to also designate a trusted person (a "health care agent") to make treatment decisions for us if we are unable to do so.
What is the difference between a living will and an advance care plan?
The "living will" document was used in Tennessee prior to July 1, 2004. Experience showed that it was too narrow in the scope of treatment decisions that patients were able to address, and it was somewhat cumbersome in how it had to be signed and witnessed. On July 1, 2004 a new law went into effect and the new advance care plan form was created.
The "advance care plan" form was created and made available to the public to address the shortcomings of the living will. It is in plain English, it allows the individual to give more detailed instructions, and it is simpler to have witnessed. The advance care plan form is available for free at the following web page:
Does the advance care plan have to be notarized?
The advance care plan may be witnessed in either of these ways:
1. The individual may sign the form in the presence of a notary who then notarizes the form, or
2. The individual may sign in the presence of two witnesses who also sign the form.The witnesses may not be: your physician, the person being appointed as your health care agent, or the person who is financially responsible for your medical care. At least one of the witnesses must be: not related to you, or someone who is not going to receive a gift from your estate when you die.
When is the advance care plan effective?
As long as you are able to make and communicate your own health care decisions, you will do so. If you become unable to make and communicate your own decisions, the advance care plan becomes effective. If you regain your capacity to make and communicate your own health care decisions, the advance care plan is no longer followed.
Can the advance care plan be revoked?
Yes. It may be revoked in part or in its entirety.
An individual may revoke an advance care plan at any time and in any manner that communicates the intent to revoke. So long as the individual has the capacity to do so, the individual may revoke the designation of a particular person as his health care agent in a written statement signed by the individual. He may also personally inform the health care provider supervising his care.
An individual may revoke an old advance care plan by signing a newer advance care plan that contains different instructions or a different designation of health care agent.
If an individual has appointed the spouse as health care agent, a later divorce, annulment, or legal separation revokes the designation of the spouse as the individual's health care agent. However, if the individual wishes the spouse or former spouse to continue to act as health care agent, it may be specified in the decree of divorce or annulment or in an advance care plan.
Is my old living will still valid?
If you made a valid living will it is still valid. But you might consider making an advance care plan to provide more detailed instructions that are not covered by the living will.
What about the advance directive that I executed when I lived in another state?
It will be valid now that you live in Tennessee so long as it complies either with the law of the state in which you lived when you signed it or with the laws of Tennessee.
How can I be sure my advance directive will be followed?
Let others know of the existence of the document. Provide a copy to your physicians, facility staff members, and other health care providers so it may be placed in your medical records. It is also the individual's responsibility to provide updated documents or revocation documents to such health care providers.
What if I still have questions?
Discuss your questions and concerns with your attorney and/or with your health care provider.
This firm values the dignity and rights of every individual to make his or her own informed health care decisions and we will gladly assist you in this regard. We also can draft additional documents to address issues that are not covered by the state issued form.
For more information or assistance, please contact us at (423) 710-3689 or use the form on our contact page.