TENNESSEE DURABLE HEALTH CARE POWER OF ATTORNEY
(A Health Care Agent Appointment & Advance Directive)
[// GUIDANCE: This template is drafted to comply with the Tennessee Health Care Decisions Act, Tenn. Code Ann. § 68-11-1801 et seq. It also embeds a HIPAA release consistent with 45 C.F.R. § 164.502(g). Attorneys should confirm no subsequent statutory amendments affect the language before finalizing.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Operative Provisions
3.1 Appointment & Identification of Agent
3.2 Scope of Health-Care Decision Authority
3.3 End-of-Life Directions
3.4 HIPAA Authorization
3.5 Durability; Effectiveness & Termination - Representations & Warranties
- Covenants & Restrictions of Agent
- Default, Revocation & Remedies
- Risk Allocation
- Dispute Resolution
- General Provisions
- Execution Block & Acknowledgments
1. DOCUMENT HEADER
THIS DURABLE HEALTH CARE POWER OF ATTORNEY (this “Agreement”) is made effective as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
• [PRINCIPAL LEGAL NAME], a natural person residing at [ADDRESS], hereinafter the “Principal”; and
• [PRIMARY AGENT LEGAL NAME], a natural person whose address is [ADDRESS], hereinafter the “Agent” or “Health Care Agent.”
Recitals
A. Principal desires, pursuant to the Tennessee Health Care Decisions Act and other applicable law, to appoint an Agent to make health-care decisions on Principal’s behalf when Principal lacks capacity or elects to have the Agent act immediately.
B. Principal intends this Appointment to constitute (i) a durable power of attorney for health care, (ii) an advance directive, and (iii) a HIPAA-compliant authorization.
C. The parties enter into this Agreement for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
2. DEFINITIONS
For purposes of this Agreement, the following capitalized terms have the meanings set forth below:
“Act” means the Tennessee Health Care Decisions Act, Tenn. Code Ann. § 68-11-1801 et seq.
“Capacity” means a Principal’s ability to understand the nature and consequences of a health-care decision in accordance with the Act.
“End-of-Life Decision” means any decision regarding the withholding, withdrawal, or continuation of life-sustaining treatment, artificial nutrition/hydration, resuscitation, or similar interventions.
“Good Faith” means honesty in fact and the observance of reasonable standards of care, consistent with Tenn. Code Ann. § 68-11-1904.
“Health-Care Decision” has the meaning assigned in Tenn. Code Ann. § 68-11-1802(4).
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, including 45 C.F.R. parts 160 & 164.
“Incapacity” means the absence of Capacity as determined under Section 3.5(b).
“Successor Agent” means the person(s) named in Section 3.1(c) to act if the Primary Agent is unable or unwilling to serve.
3. OPERATIVE PROVISIONS
3.1 Appointment & Identification of Agent
a. Appointment. Principal hereby appoints [PRIMARY AGENT LEGAL NAME] as Principal’s true and lawful Health-Care Agent, with full power to make any Health-Care Decision the Principal could make, subject to the limitations in this Agreement.
b. Acceptance. By signing below, Agent accepts the appointment and acknowledges the duties imposed herein.
c. Successor Agents. If the Primary Agent is unavailable, unwilling, or disqualified, the following individuals, in the order listed, shall serve:
1. [SUCCESSOR AGENT #1 NAME]
2. [SUCCESSOR AGENT #2 NAME]
[// GUIDANCE: Delete or add Successor Agents as desired.]
3.2 Scope of Health-Care Decision Authority
a. General Grant. Subject to Sections 3.3 and 3.5, Agent may make any and all Health-Care Decisions for Principal, including without limitation:
i. Consent, refuse, or withdraw consent to medical or surgical procedures, medication, and diagnostics;
ii. Admit or discharge Principal from any health-care facility;
iii. Contract for any health-care service and obligate Principal for related expenses;
iv. Access, review, and disclose medical records; and
v. Authorize autopsy and organ or tissue donation per Section 3.3(e).
b. Limitations. Agent shall not:
i. Authorize psychosurgery, sterilization, or abortion except as expressly directed in writing by Principal; or
ii. Override any limitation expressly stated in this Agreement.
c. Good-Faith Reliance. Any third party may rely on Agent’s representation that Agent is acting within the scope of authority granted herein.
3.3 End-of-Life Directions
a. Statement of Intent. Principal wishes Agent to honor the preferences indicated below and to make End-of-Life Decisions consistent with these preferences and with Good Faith medical judgment.
b. Life-Sustaining Treatment. (Check one.)
☐ Principal desires ALL available life-sustaining treatment.
☐ Principal desires life-sustaining treatment EXCEPT: [DESCRIBE LIMITATIONS].
☐ Principal desires NO life-sustaining treatment if, in two physicians’ reasonable medical judgment, death is imminent or the condition is irreversible.
c. Artificial Nutrition/Hydration. (Check one.)
☐ Provide permanently.
☐ Provide temporarily if recovery is probable.
☐ Withhold/withdraw if death is imminent or condition irreversible.
d. Cardiopulmonary Resuscitation (CPR).
☐ Attempt resuscitation (Full Code).
☐ Do Not Attempt Resuscitation (DNR).
e. Anatomical Gifts. (Check all that apply.)
☐ Any needed organs/tissues for transplant.
☐ Research/education.
☐ Specific organs: [LIST]
☐ No anatomical gifts.
[// GUIDANCE: Physicians in Tennessee must also comply with separate statutory DNR forms for emergency responders. Consider attaching a TN POST or DNR Order if applicable.]
3.4 HIPAA Authorization
a. Authorization Grant. Pursuant to 45 C.F.R. § 164.502(g), Principal authorizes any Covered Entity to disclose to Agent any Protected Health Information (“PHI”) of Principal, whether oral, written, or electronic, for the purpose of carrying out Agent’s duties.
b. Duration. This HIPAA Authorization is effective immediately and continues until the earlier of (i) five (5) years after Principal’s death or (ii) revocation per Section 6.1.
c. Redisclosure. Agent may redisclose PHI as necessary to fulfill Agent’s duties; such PHI may no longer be protected by HIPAA once redisclosed.
3.5 Durability; Effectiveness & Termination
a. Durable Nature. This power of attorney is DURABLE and shall not be affected by Principal’s subsequent incapacity, except as provided herein.
b. Effectiveness. (Check one.)
☐ This appointment is effective immediately upon execution.
☐ This appointment becomes effective only upon a written determination of Incapacity by [ONE / TWO] licensed physicians.
c. Termination. This Agreement terminates upon the earliest of:
i. Revocation under Section 6.1;
ii. Principal’s death, except for Agent’s post-mortem powers under Sections 3.2 & 3.3; or
iii. Court appointment of a conservator having authority over Health-Care Decisions.
4. REPRESENTATIONS & WARRANTIES
4.1 Principal represents and warrants that:
a. Principal is at least eighteen (18) years of age, of sound mind, and under no duress or undue influence; and
b. No prior health-care power of attorney remains in effect, or any such prior document is revoked effective on the Effective Date.
4.2 Agent represents and warrants that Agent:
a. Is at least eighteen (18) years of age and not currently serving as Principal’s health-care provider;
b. Accepts the fiduciary duties imposed by this Agreement; and
c. Will act in Good Faith and in accordance with Principal’s known wishes and best interests.
5. COVENANTS & RESTRICTIONS OF AGENT
5.1 Standard of Conduct. Agent shall:
a. Act in Good Faith and in a manner Agent reasonably believes to be in Principal’s best interest;
b. Confer with medical personnel and family members as appropriate; and
c. Maintain reasonably detailed records of Health-Care Decisions.
5.2 Duty to Disclose. Upon written request of (i) Principal while capacitated, (ii) a court of competent jurisdiction, or (iii) a Successor Agent, Agent shall provide a written summary of major Health-Care Decisions taken.
5.3 Compensation. Agent serves without compensation except for reasonable out-of-pocket expenses.
6. DEFAULT, REVOCATION & REMEDIES
6.1 Revocation by Principal. Principal may revoke this Agreement in whole or in part at any time by:
a. A signed writing dated after the Effective Date;
b. Personally informing the attending physician or Agent of the intent to revoke; or
c. Any other method recognized under the Act.
6.2 Resignation of Agent. Agent may resign by delivering written notice to Principal (if capacitated) and the first available Successor Agent.
6.3 Removal for Cause. A court of competent jurisdiction may remove Agent for breach of fiduciary duty, incapacity, or other good cause shown.
6.4 Remedies. In addition to statutory remedies, any party in interest may seek:
a. Injunctive relief to enforce or restrain actions inconsistent with this Agreement;
b. Declaratory relief; and
c. Recovery of reasonable attorneys’ fees and costs incurred in enforcing Good Faith compliance.
7. RISK ALLOCATION
7.1 Indemnification of Agent. Principal agrees to indemnify and hold harmless Agent from any and all liability, claims, losses, or expenses, including reasonable attorneys’ fees, arising from acts or omissions taken in Good Faith under this Agreement, except in cases of gross negligence, willful misconduct, or bad faith.
7.2 Limitation of Liability. No Agent, in Good Faith, shall be liable for more than direct damages and shall not be liable for any consequential, special, or punitive damages.
7.3 Insurance. [OPTIONAL] Principal may, at Principal’s expense, procure liability insurance covering Agent’s acts hereunder.
7.4 Force Majeure. Agent shall not be liable for failure to act when prevented by acts of God, war, civil disturbance, or other occurrences beyond reasonable control.
8. DISPUTE RESOLUTION
8.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee (the “Governing Law”).
8.2 Forum Selection. Exclusive jurisdiction and venue for any proceeding arising hereunder shall lie in the probate court of the county in Tennessee where Principal resides as of the time of filing, unless another court has mandatory jurisdiction.
8.3 Arbitration. Arbitration is not available under this Agreement.
8.4 Jury Waiver. No jury-trial waiver is provided. Parties retain all constitutional rights to trial by jury where applicable.
8.5 Injunctive Relief. Nothing herein limits any party’s right to seek immediate injunctive or declaratory relief regarding the validity or enforcement of this healthcare directive.
9. GENERAL PROVISIONS
9.1 Amendment & Waiver. This Agreement may be amended only by a writing executed with the same formalities as this Agreement. No waiver of any provision shall be deemed a waiver of any other provision or subsequent breach.
9.2 Assignment. This Appointment is personal to the Agent and may not be assigned or delegated, except to Successor Agents expressly named herein.
9.3 Successors & Assigns. This Agreement binds and benefits Principal’s heirs, executors, administrators, and permitted assigns.
9.4 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall nevertheless be carried into effect.
9.5 Integration. This Agreement constitutes the entire understanding of the parties regarding the subject matter and supersedes all prior directives or powers of attorney for health care.
9.6 Copies. Photocopies, facsimiles, or electronically signed counterparts of this Agreement shall have the same legal effect as an original.
9.7 Electronic Signatures. To the fullest extent permitted by applicable law, electronic signatures shall be deemed originals.
10. EXECUTION BLOCK & ACKNOWLEDGMENTS
10.1 Principal Signature
I understand the nature and purpose of this document and sign it voluntarily.
____ _____
[PRINCIPAL LEGAL NAME], Principal Date
10.2 Agent Acceptance
I accept the appointment and fiduciary duties herein.
____ _____
[PRIMARY AGENT LEGAL NAME], Agent Date
[Add lines for each Successor Agent to acknowledge acceptance if desired.]
10.3 NOTARIZATION (Optional Alternative to Witnesses)
State of Tennessee
County of ______
On this _ day of _, 20__, before me, ________, a Notary Public, personally appeared [PRINCIPAL NAME], known to me (or satisfactorily proven) to be the person whose name is subscribed above, and acknowledged that (s)he executed the same for the purposes therein contained.
Notary Public
My Commission Expires: __
10.4 WITNESS ATTESTATION (Required if no Notary)
We, the undersigned, declare that the Principal, who is personally known to us, signed or acknowledged this Durable Health Care Power of Attorney in our presence, that the Principal appears to be of sound mind and under no duress, fraud, or undue influence, and that neither of us is (i) the Agent, (ii) related by blood or marriage, (iii) entitled to any portion of the Principal’s estate, or (iv) directly financially responsible for Principal’s medical care.
Witness #1:
____ _____
Name & Address Date
Witness #2:
____ _____
Name & Address Date
[// GUIDANCE: Retain either Section 10.3 or Section 10.4 to satisfy Tenn. Code Ann. § 68-11-1803. Do not use both unless desired.]
END OF DOCUMENT