Tennessee Healthcare Power of Attorney Requirements
Tennessee is unusual in having two separate, currently valid statutes for appointing a health care agent, and this document is the older, freestanding one: the Durable Power of Attorney for Health Care under Tennessee Code Annotated Title 34, Chapter 6, Part 2, the state's original 1990 health care power of attorney statute, which remains valid law today and lets you name someone you trust, called your agent or attorney in fact, to make health care decisions for you.
Introduction
Tennessee is unusual in having two separate, currently valid statutes for appointing a health care agent, and this document is the older, freestanding one: the Durable Power of Attorney for Health Care under Tennessee Code Annotated Title 34, Chapter 6, Part 2, the state's original 1990 health care power of attorney statute, which remains valid law today and lets you name someone you trust, called your agent or attorney in fact, to make health care decisions for you. This document's authority is walled off from a financial power of attorney's; it covers only health care decisions; it says nothing about your money, property, or bills. Tennessee is unusual among states in one respect worth knowing up front: whether your agent's authority starts immediately or only once you become incapacitated is your own choice, made through specific wording you include in the document itself, the same choice Tennessee gives you for a financial power of attorney. Either way, you keep the right to make your own health care decisions for as long as you are able to give informed consent, and no treatment you object to may be given or withheld against your wishes. To make the document valid, Tennessee requires more formality than many states: it must be signed before a notary public and witnessed by two qualified adults, not one or the other. Tennessee also publishes a separate combined form called the Advance Directive for Health Care, through its Health Facilities Commission, which bundles a living will with an Appointment of Health Care Agent section and, unless you say otherwise, lets your agent act only once a physician determines you lack capacity. There is no state registry that stores either document for you; instead, Tennessee lets you flag on your driver's license or ID that you have completed one.
Key Things to Know
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Tennessee actually has two valid ways to appoint a health care agent: this freestanding Durable Power of Attorney for Health Care, created under Tennessee Code Annotated Title 34, Chapter 6, Part 2, which lets you (the principal) name a trusted adult, called your agent or attorney in fact, to make health care decisions for you, and a separate combined Advance Directive for Health Care form the state also publishes.
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Tennessee lets you choose whether your agent's authority begins right away or only once you become incapacitated. Either choice is valid, made through the wording you use in the document itself (Tennessee Code Annotated Section 34-6-102).
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Even after your agent's authority begins, you keep the right to make your own health care decisions for as long as you can give informed consent to that particular decision, and no treatment may be given to you or withheld from you against your objection.
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Your agent may not be your treating health care provider, an employee of that provider, the operator of a health care institution where you are a patient, or its employee, unless that person is also your relative (Section 34-6-203(b), (f)).
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To be valid, the document must be signed before a notary public and witnessed by two qualifying adult witnesses. Tennessee requires both together, not one or the other (Section 34-6-203(a)(3)).
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Neither witness may be a health care provider, an employee of one, your named agent, a health care institution operator, or its employee. At least one of the two must also not be your relative or an heir under your will (Section 34-6-203(d), (e)).
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You can revoke your agent's appointment at any time by telling your agent, orally or in writing, or revoke your agent's decision making authority by telling your health care provider, orally or in writing (Section 34-6-207).
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If you later divorce or have your marriage annulled, your former spouse's authority as your agent ends automatically unless your document says otherwise.
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Tennessee has no state registry that stores your signed document, but you can flag on your driver's license or state ID, through the Department of Safety and Homeland Security, that you have completed an Advance Directive for Health Care.
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This is a different, though related, document from Tennessee's general Durable Power of Attorney, which covers property and financial decisions, not health care.
Key decisions before you file
Before you file a Healthcare Power of Attorney in Tennessee, a few decisions shape the document: which option to choose and what each one means. The Healthcare Power of Attorney guide walks through them.
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Tennessee Requirements for Healthcare Power of Attorney
The document must specifically authorize the attorney in fact (agent) to make health care decisions and must state its own date of execution; these are the two threshold requirements before any decision-making authority exists at all (Tenn. Code Ann. Section 34-6-203(a)(1), (2)).
Subject to any limits stated in the document, the agent may make health care decisions for the principal, before or after death, to the same extent the principal could if capable, including making an anatomical gift, authorizing an autopsy, and directing disposition of remains (Tenn. Code Ann. Section 34-6-204(b)). If the principal has a terminal condition, the agent may decide to let the principal die naturally with only palliative care (Section 34-6-204(d)). Unlike some states, this section does not itself gate the agent's authority on a physician's incapacity certification; whether the document is effective immediately or only upon incapacity is a separate drafting choice (see Section 34-6-102).
Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the document is in effect.
A Durable Power of Attorney for Health Care must contain either the words that it is not affected by the principal's later disability or incapacity, meaning it is effective immediately and continues afterward, or that it becomes effective upon the principal's disability or incapacity, meaning it springs into effect only then (Tenn. Code Ann. Section 34-6-102). This is a drafting choice the principal makes, not an automatic incapacity-certification requirement.
The principal may revoke the agent's appointment by notifying the agent orally or in writing, or revoke the agent's decision-making authority by notifying the health care provider orally or in writing (Section 34-6-207(a)). Capacity to revoke is presumed (subsection (c)). A later valid Durable Power of Attorney for Health Care revokes a prior one unless stated otherwise (subsection (d)). If the principal's marriage is later dissolved or annulled, the former spouse's authority as agent ends automatically unless the document says otherwise (subsection (e)). A person who relies in good faith on the document without actual knowledge of a revocation is not liable (subsection (f)).
Neither of the two required witnesses may be a health care provider, an employee of a health care provider, the person named as agent, the operator of a health care institution, or an employee of a health care institution (Section 34-6-203(d)). At least one of the two witnesses must also not be a relative of the principal by blood, marriage, or adoption, nor a person entitled to any part of the principal's estate (subsection (e)). Each witness signs a statutory declaration under penalty of perjury attesting to these facts.
The document must be signed and acknowledged before a notary public and separately signed by at least two qualifying witnesses. Tennessee requires both together as a single execution method, not as alternatives to each other.
Unless the document limits it, the agent may make a disposition of the principal's body or part under the Uniform Anatomical Gift Act, compiled at Title 68, Chapter 30 (Tenn. Code Ann. Section 34-6-204(b)(1)).
A declaration for mental health treatment, covering matters like inpatient hospitalization capped at fifteen days, psychoactive medications, and electroconvulsive therapy, may be expressed in or incorporated into a Durable Power of Attorney for Health Care executed under Title 34, Chapter 6, Part 2 on or after March 1, 2001 (Tenn. Code Ann. Section 33-6-1010); once incorporated, it is revocable as to mental health services only under Title 33, Chapter 6, Part 10's own terms.
A health care provider who relies in good faith on a health care decision made by an agent the provider believes is properly authorized, and believes is consistent with the principal's known wishes, is protected from criminal prosecution, civil liability, and professional discipline to the same extent as if the principal had made the decision directly (Tenn. Code Ann. Section 34-6-208(a)).
A Durable Power of Attorney for Health Care executed outside Tennessee by a nonresident at the time of execution is given effect in Tennessee if it complies with either Tennessee's own requirements or the law of the state where the principal resided (Tenn. Code Ann. Section 34-6-215).
The principal may use the document to record religious, moral, or other personal values to guide the agent, since Tennessee's statutory Warning Statement instructs that the agent must act consistently with the principal's desires as stated in the document (Tenn. Code Ann. Section 34-6-205).
A person named in a signed writing by the principal, such as this document, receives first priority for court appointment as the principal's conservator, Tennessee's term for an adult guardian, should court proceedings ever become necessary (Tenn. Code Ann. Section 34-3-103). Tennessee's combined Advance Directive for Health Care form separately lets a principal nominate a guardian of the person directly within that document (Tenn. Code Ann. Section 68-11-1803(g)).
If any part of the document, or of the Tennessee Code provisions it relies on, is later found invalid or unenforceable, the remaining parts continue in full effect, consistent with the Tennessee Code's general severability provision (Tenn. Code Ann. Section 1-3-110).
If someone other than the principal prepares the document, it must contain a statutory Warning Statement explaining that it gives the agent power to make health care decisions, that the agent must act consistently with the principal's stated desires, that the principal keeps the right to make decisions while able to give informed consent, and that the principal may revoke the agent's authority at any time (Tenn. Code Ann. Section 34-6-205). Failing to include the warning does not affect the document's validity.
Frequently Asked Questions
A Durable Power of Attorney for Health Care in Tennessee is a legal document, created under Tennessee Code Annotated Title 34, Chapter 6, Part 2, that lets you name a trusted adult, called your agent or attorney in fact, to make health care decisions for you. It covers only health care decisions, such as consenting to or refusing treatment and reviewing medical records, and Tennessee lets you decide whether your agent's authority starts immediately or only once you become incapacitated.
A Durable Power of Attorney for Health Care covers only health care decisions. Tennessee's general Durable Power of Attorney (Title 34, Chapter 6, Part 1) covers property and financial matters instead, such as banking or business transactions, and does not authorize health care decisions. Both documents use the same immediate-or-springing durability choice, but they differ in execution: the health care version requires notarization and two qualifying witnesses together, while the general financial version does not carry that same built-in witness scheme.
It is your choice. Tennessee requires the document to state either that it is not affected by your later disability or incapacity, meaning it is effective immediately and continues afterward, or that it becomes effective upon your disability or incapacity, meaning it springs into effect only then (Tenn. Code Ann. Section 34-6-102). Whichever you choose, you keep the right to make your own decisions as long as you can give informed consent, and your agent cannot act against your objection.
Yes. Unlike some states that let you choose between a notary or witnesses, Tennessee requires both together for a Durable Power of Attorney for Health Care: the document must be signed and acknowledged before a notary public, and separately signed by at least two qualifying adult witnesses who watch you sign (Tenn. Code Ann. Section 34-6-203(a)(3)).
No. Tennessee law bars your treating health care provider, an employee of that provider, the operator of a health care institution where you are a patient, or an employee of that operator from serving as your agent, unless that person is also your relative by blood, marriage, or adoption (Tenn. Code Ann. Section 34-6-203(b), (f)).
No. Tennessee does not operate a registry that stores your signed document. You keep the original yourself and give copies to your agent and physician. You can, however, flag on your Tennessee driver's license or ID, through the Department of Safety and Homeland Security's emergency contact feature, that you have completed an Advance Directive for Health Care.
You can revoke your agent's appointment at any time by telling your agent, orally or in writing, or revoke your agent's authority to make health care decisions by telling your health care provider, orally or in writing (Tenn. Code Ann. Section 34-6-207). Your capacity to revoke is presumed, and a later valid Durable Power of Attorney for Health Care automatically revokes an earlier one unless it states otherwise.
Yes. Tennessee law gives first priority for appointment as your conservator, the state's term for an adult guardian, to a person you named in a signed writing (Tenn. Code Ann. Section 34-3-103). Tennessee's combined Advance Directive for Health Care form also lets you nominate a guardian of the person directly within that document (Tenn. Code Ann. Section 68-11-1803(g)).
Your former spouse's authority as your agent ends automatically when your marriage is dissolved or annulled, unless your document expressly states that you want it to continue (Tenn. Code Ann. Section 34-6-207(e)). It is a good idea to review and update your agent designation whenever your marital status changes.